text:
    The Village of Little Falls, N. Y., Respondent, v. Helen Cobb, Appellant.

      Demurrer to an answer — the sufficiency of the complaint at issue — action by an incorporated, milage to adjudge a tax a lien on certain real estate and to foreclose the'sanne — not maintainable at common lato, nor under chapter 291 of the Laws of 1870 or chapter 808 of the Laws of 1884
    On the hearing upon a demurrer interposed to an answer, whether the demurrer is to a defense therein or to a counterclaim (unless perhaps where the allegations of the complaint are expressly admitted by a part of the answer to which no demurrer is taken), the question of the sufficiency of the plaintiff’s complaint may he raised by the defendant.
    The objection that the complaint does not state facts sufficient to constitute a cause of action, is not waived by the answer, but is always in issue, and, therefore, if upon the hearing of a demurrer to the answer, the defendant’s claim, that the complaint in the action does not state facts sufficient to constitute a cause of action, is correct, the plaintiff’s demurrer cannot be sustained.
    An incorporated village cannot at common law maintain an action in which the relief demanded requires that a certain tax assessed for the laying out of a village street he adjudged to bo a lien on the premises of the defendant, that such lien be foreclosed by a sale of the premises to pay the tax, with interest and costs, and that the defendant's equity of redemption therein be foreclosed; such an action must he authorized b3r statute.
    Under the" provisions of section 9 of title 6 of chapter 291 of the Laws of 1870, no action can be maintained by a tax collector or in the corporate name of a vil- • lage, until thirty days have elapsed after the date of the collector’s return and when in the complaint in such action there is no allegation as to the date of such return or as to when it was made, and nothing therein showing, or tending to show that, after such return, thirty days had elapsed before the commencement of such action, the complaint does not state facts sufficient to constitute a cause of action thereunder.
    Neither chapter 291 of the Laws of 1870 nor chapter 308 of the Laws of 1884 gives a right of action to a village to have a tax adjudged to be a lien on premises assessed therefor, and to enforce such lien by a sale of the premises in payment of the assessment, interest and costs, and to foreclose the owner’s equity of redemption therein.
    Appeal by tlie defendant, Helen Oobb, from an interlocutory judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tbe office of tbe clerk of tlie county of Herkimer on tbe 6tli day of November, 1893, upon tbe decision of tbe court rendered after a trial at tlie Herkimer Special Term sustaining tbe plaintiff’s demurrer to tbe ninth division of tbe defendant’s answer, with notice of an intention to bring up for review on sucli appeal said interlocutory judgment and tlie order dated October 5, 1893, sustaining tlie plaintiff’s demurrer.

      H. Olay Hall and B. II Smith, for tbe appellant.

      H. A. Be Goster and E. E. Sheldon, for tbe respondent.
   Martin, J.:

To a proper understanding of tbe questions involved on this appeal, a summary of tbe allegations of tbe pleadings seems necessary. In the complaint it was alleged that tbe plaintiff was a municipal corporation, duly incorporated under tbe laws of this State; that on or about tbe 1st of September, 1891, an application for making and grading Milligan street, one of tbe public streets of the plaintiff, by means of an assessment on lots interested in tbe improvement, was made and presented to the plaintiff’s board of trustees, by a petition duly .executed by a majority of tbe persons owning lots on that street, being more than one-half in extent of lots fronting thereon, and of the land subject to be assessed as provided in section 32 of tbe plaintiff’s charter; that it was received by tbe board and placed on file with tbe clerk of tbe 'plaintiff ; that such street bad not theretofore been made or graded by means of such assessment; that thereupon tbe trustees of tbe plaintiff ordered it to be graded as provided in section 32, and notice, in writing, of such application, and subscribed by the president, stating the time and place where the same would be considered, was published in a newspaper in the village for two successive weeks before the time appointed therefor, inviting all persons who might be interested to appear and show cause, if they had any, against the application; that shortly thereafter, and prior to the making and grading of the street, affidavits showing such publication and who were the owners of lots subject to assessment for such improvement, together with the application, were filed with the plaintiff’s trustees, and an entry thereof duly made in the journal of the village ; that thereupon, at a regular adjourned meeting of such board of trustees, held at the time and place stated in the notice, no one appearing in opposition to the application, it was duly granted, and a resolution and ordinance for the making and grading of the street was duly passed by the board of trustees; that such ordinance directed the expense of the improvement to be estimated and assessed upon all lots fronting upon the street or part of the street to be improved, or upon the owners thereof, in proportion to the benefit which the owners respectively were deemed to acquire thereby; that such ordinance specified the grade, width and the manner of construction of the street, and a notice to contractors for proposals for the construction of such street was, by the board of trustees, caused to be published in a newspaper printed and published in the village; that thereafter, at a time and place fixed by such notice, the board met at their rooms in the village and received such proposals; that, after examining the proposals made, it duly awarded the contract for the making and grading of the street to the lowest bidder; that thereupon the plaintiff entered into a contract with him for making and grading the street according to such ordinance ; that, in pursuance of such contract, the contractor constructed said street according to the ordinance, and completed the same about December 1, 1891, and it was then duly accepted by the board; that at its regular meeting on October 6, 1891, the board ordered an estimate and assessment therefor, and fixed the time and place when application would be made to the county judge of Herkimer county for the appointment of three commissioners to make such assessment; that notice of such application was published for two weeks in a newspaper printed and published in the plaintiff village; that, at the time and place so fixed, application was made to the county judge, who appointed three residents of the village as such commissioners; that thereupon the board caused a proper survey and map to be made, and a blank form of assessment to be prepared, containing the names of the persons who, in its judgment, were subject to be assessed for the making and grading of such street, and a description of the lots belonging to each person, who, in its judgment, were subject to be assessed, and appointed as a time and place for the meeting of such commissioners, the 25th day of November, 1891, at ten o’clock, a. m., at the rooms of the trustees in said village ; that it caused at least ten days’ notice thereof to be personally served on all such owners, including the defendant; that, at the time and place appointed, the commissioners met, examined the street, heard the persons interested, and the proofs which were offered by them as to the value of the property, and other facts affecting the question; that, before entering upon the discharge of their duties, the commissioners took and subscribed the proper oath; that the commissioners adjourned from time to time, and at these meetings tlie defendant appeared both in person and by attorney, and submitted proofs before such commissioners; that the plaintiff also appeared, and made proofs of the foregoing facts and matters; that thereafter the commissioners assessed the expense of the damage for the making and grading of such street upon all the lots subject to be assessed therefor, and deemed benefited thereby, upon the owners of such lots, in proportion as near as practicable to the benefits which the respective owners were deemed to acquire by the improvement; that on December 30, 1891, the commissioners, by a certificate in writing, signed by them, and contained in an assessment roll, certified the. assessment made by them to the plaintiff’s board of trustees, and the same was duly filed with the clerk of the plaintiff on January 4,1892 ; that the proceedings before mentioned were duly had, taken and performed pursuant to the provisions of the plaintiff’s charter, and that the trustees of the plaintiff had jurisdiction to make such ordinance for the making and grading of Milligan street, and of all the proceedings hereinbefore alleged; that the commissioners had jurisdiction of the making said assessment, and that it was duly made; that among the assessments so made by sucli. commissioners was tlie sum of $146.70 against the defendant, which was assessed upon the lands owned by her therein described as follows: “ All that certain village lot and premises situate on the northerly side of Milligan street, in the village of Little Falls, and designated as lot 54, 55, 56, on a map of said street made by E. T. E. Lansing, and bounded easterly by Lewis street, and westerly by premises of John Parker;” that such assessment, by virtue of the proceedings aforesaid, and by virtue of the provisions of the plaintiff’s charter and section 45 thereof, then became, and still is, a lien upon said lot in favor of the plaintiff; that thereafter, and on January 11, 1892, said board of trustees duly issued and executed their warrant to the collector of said village in writing, signed by them upon said assessment roll for the collection of said assessments so made by said commissioners, and certified to them; that said assessment roll and warrant were thereupon delivered to and placed in the hands of such collector for collection, and said collector thereupon proceeded to and did collect all of said taxes so levied and assessed and contained in said assessment roll, except the said tax hereinbefore mentioned, assessed against the defendant and upon said lands owned by her ; that thereafter, and upon the expiration of said warrant, the collector returned said assessment roll to the trustees with his certificate showing the collection of all the taxes and assessments in said roll contained, except said assessment against the defendant and her property, which said collector returned as unpaid, and that he was unable to collect the. same, and that he was not, upon diligent inquiry, able to discover any goods or chattels belonging to or in the possession of the defendant whereon he could levy the same; that the plaintiff is unable to collect said assessment out of the goods and chattels of the defendant ; that since the making of such assessment the defendant has been repeatedly requested to pay said assessment by said collector and other officers and other persons duly authorized, but she has neglected and refused, and still neglects and refuses so to do, and that this action for the collection of the same is brought pursuant to the direction of the plaintiff’s hoard of trustees ; that, by reason. of the foregoing facts and matters, the defendant is indebted to the plaintiff in the sum of $146.70, and interest thereon at the rate of twelve per cent per annum since about March 11, 1891.

The relief demanded by the plaintiff was that it be adjudged that said sum of $146.70 is a lien upon said lot; that it be enforced by á sale of the lot under the direction of the court; that the plaintiff be paid the amount of such assessment, and the interest theleon at the rate of twelve per cent per annum, with the costs of this action, out of the proceeds of such sale; that the defendant and all persons claiming any interest in said lands under the defendant since the accruing of said lien, be foreclosed of any equity of redemption therein, and for such other and further relief as to the court might seem just and agreeable to equity, with costs of this action.

The first eight subdivisions of the defendant’s answer consisted chiefly of denials of the allegations of the complaint. In the ninth subdivision, it was alleged substantially as follows : That the defendant further answering, and by way of an equitable offset and counterclaim to the demand of the plaintiff in this action, alleges and charges the truth to be that prior to the alleged proceedings set up in the complaint, she, by herself and her immediate grantor of the property described in the complaint, had built and constructed over the creek or runway crossing said Milligan street opposite her lots, a substantial covering of stone, at a cost of nearly fifty dollars, and had, by her said grantor and herself, caused said street to be filled in with good and substantial material opposite her said lots and covering said creek or runway, and making a good, graded roadway on said street beyond the center thereof, as laid out by the engineer who established the grade of said street; that the cost of said filling was over $200; that such covering and filling by the defendant and her grantor inured to the benefit of the plaintiff and to the benefit of all the other lot owners in said street, and that if such work had not been done by herself and her grantor, the opening and grading of Milligan street would have cost at least the sum of $200 more than the plaintiff was compelled to pay therefor.’ The defendant further answering alleged that, prior to the making and grading of such street, as alleged in the complaint, said premises had good ingress and egress to and from them upon said Milligan street, and said lots had and have a good natural front upon Lewis street, which is graded and sidewalks built thereon in front of all said premises on Lewis street; and she further represents that, by tlie grading done by tlie village, the ingress to said lot from Milligan street was injured, and said lots liave not in any way been benefited by said grading, but, on the contrary, the defendant alleges that prior to said grading by the village there was a good, hard road on said Milligan street opposite said lots, and that the grading done by the village was of a character not only to injure the ingress and egress to said lots from Milligan street, but to turn the water from said street upon said lots, by which acts of the plaintiff' tlie defendant has been damaged to the amount of $100.

The defendant demanded judgment that the complaint be dismissed ; that she have judgment against the plaintiff for the sum of $300, and for such other and further relief as to the court should seem just and equitable, with costs.

The plaintiff’s demurrer was as follows : “ The plaintiff demurs to that part of the defendant’s answer contained in the ‘Ninth’ division thereof, and demurs to each of the counterclaims and defenses in said ‘ Ninth ’ division alleged, on the ground that the said counterclaims and defenses and each of them are insufficient in law upon the face thereof, and that the said counterclaims do not state facts sufficient to constitute a cause of action, and that no one of said counterclaims states facts sufficient to constitute a cause of action against the plaintiff.”

On the trial of tlie issues of law thus joined, the plaintiff’s . demurrer was sustained upon all the grounds stated in it, and an interlocutory judgment was directed to be entered in favor of the plaintiff sustaining such demurrer. A judgment in accordance with the decision of tlie Special Term was subsequently entered, with costs.

The appellant insists that the Special Term erred in sustaining the plaintiff’s demurrer for the reasons: (1) That the demurrer was bad because the counterclaims and defenses demurred to were not separated or specified separately, as required by sections 495 and 496 of the Code of Civil Procedure, and because the demurrer was taken to all the counterclaims, and does not distinctly sjiecify the objections to the counterclaims or either of them. (2) That at least one of the counterclaims was sufficient, and, hence, that the demurrer should not have been sustained. (3) That the complaint does not state facts sufficient to constitute a cause of action against the defendant.

If it is true that the allegations of the complaint are insufficient to constitute a cause of action against the defendant, and the question of the sufficiency of the complaint is properly involved in the decision of this case, it will be unnecessary to examine the other questions raised by the appellant, as in that event the judgment of the Special Term is clearly wrong and should be reversed.

It seems to be well settled that, upon a demurrer to an answer,, the question of the sufficiency of the complaint may be raised. In Wilmore v. Flack (16 Wkly. Dig. 236) it was held: “ That the objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by answer, but may be taken on the trial of any issue of fact or of law joined in the action. That the sufficiency of the complaint is always in issue, and an objection to it, if well taken, is a complete answer to the plaintiff’s demurrer,’ and must result in a dismissal of the complaint.” While this case seeins to have been reversed in 96 N. T. 512, it was upon the ground that the complaint stated a cause of action, and the doctrine above quoted was not denied or questioned, but in effect affirmed. On demurrer to flip answer for insufficiency, the defendant may attack the complaint on the ground that it does not state facts sufficient to constitute a cause of action. (People v. Booth, 32 N. Y. 397.) If the complaint is not good, the demurrer should be overruled. (Parsons v. Hayes, 50 N. Y. Super. Ct. [18 J. & S.] 29 ; Petersen v. Swan, Id. 46.) From an examination of the. answer and demurrer, it will be perceived that the matters set up in the ninth subdivision of the answer are set up both as an equitable offset and as a counterclaim, and that the demurrer was to the defenses therein set forth, as well as to the counterclaims. The decision of the court and judgment both relate to the defenses as well as to the counterclaims. Hence, if it can be said that the matters stated in that subdivision were alleged as defenses to the action, as well as counterclaims, it follows that if the complaint is insufficient the plaintiff’s demurrer should have been overruled.

The plaintiff, however, claims that the matters set out in the portion of the answer demurred to were alleged as counterclaims, and that upon a demurrer to a counterclaim the defendant cannot attack the complaint. Thus, to determine whether the sufficiency of the complaint could be attacked upon the trial of the issues of law raised by tbe demurrer herein, it is perhaps necessary to deter, mine whether upon a demurrer to a counterclaim the defendant can raise the question as to the sufficiency of the plaintiff’s complaint. In Willover v. First National Bank of Olean (40 Hun, 184) the plaintiff demurred to a counterclaim set up in the answer, and in delivering the opinion in that case Bradley, J., said: “ But it is contended on the part of the defendant that the complaint does not state a cause of action against the defendant. If that is so the plaintiff’s demurrer to the answer was properly overruled, without reference to the question of the sufficiency of the alleged counterclaim.” Thus, the General Term of the fifth department in effect held that, upon a demurrer to a counterclaim, the sufficiency of the complaint was involved, and if insufficient the demurrer should be "overruled. This question was somewhat discussed in Corning v. Roosevelt (18 Civ. Proc. Rep. 399, 401), and in that case Judge O’BeieN held that upon the hearing of a demurrer to a reply, %ie sufficiency of all the preceding pleadings was open to consideration, .and that the court should determine the sufficiency of the reply, the counterclaim and the complaint. In Williams v. Boyle (48 N. Y. St. Repr. 713) it was held by the General Term of the Court of Common Pleas that, upon a demurrer to a counterclaim set up in an answer, it was proper to inquire into the sufficiency of the complaint, and the latter failing to show a cause of action, to render judgment for its dismissal. In Lawe v. Hyde (39 Wis. 345, 355) it was held that a counterclaim in an answer was a pleading to the ■complaint, and where the latter failed to state a cause of action a demurrer to a counterclaim went bade to the complaint and if the complaint was insufficient the demurrer should be overruled.

A somewhat contrary doctrine appears to have been held in the case of Morey v. Ford (32 Hun, 446), where the defendant had answered the complaint admitting the filing of a certificate of incorporation and the-failure to file the report, and taking issue upon other allegations of the complaint; it was held that Tip on the hearing of a demurrer to a counterclaim or offset, the defendant could not challenge the sufficiency of the allegations of the complaint in regard to the filing of the certificate and failure to file the report. It may be that where a defendant has in his answer expressly .admitted that certain acts have been performed, he cannot on demurrer to the answer insist that the complaint is defective in not properly alleging the facts which he has expressly admitted. That ease may have been well decided upon the facts before the court, but should not, we think, be regarded as a binding authority for the general proposition that a complaint cannot be attacked upon a demurrer to a counterclaim. The only authority cited in that case for any such proposition was Wheeler v. Curtis (11 Wend. 653). When the latter case is examined, we find-that the defendant therein had pleaded to the declaration, the plaintiff had served a replication, and the defendant had demurred to the replication. Upon a trial of this demurrer, it was held that as the defendant had -waived any demurrer to the declaration by answering, he could not on a demurrer to the replication attack the declaration. The doctrine of that case has no application to the question before us. Moreover, the principle as there stated was qualified in Miller v. Maxwell (16 Wend. 24) and Cooper v. Greeley (1 Den. 358). In Graham v. Dunnigan (13 N. Y. Super. Ct. [6 Duer] 629, 630) this question was alluded to but not decided. We find nothing in these authorities which would justify us in holding the doctrine contended for by the plaintiff.

We are of the opinion, based both upon principle and authority, that upon a demurrer to an answer, whether the demurrer is to a defense therein or to a counterclaim (unless perhaps where the allegations of the complaint are expressly admitted by a part of the answer to which no demurrer is taken), the question of the sufficiency of the plaintiff’s complaint may be raised by the defendant, and the objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by the answer, but is always in issue, and, therefore, if the defendant’s claim that the complaint in this action does not state facts sufficient to constitute a cause of action is correct, the Special Term erred in sustaining the plaintiff’s demurrer.

This leads to a consideration of the sufficiency of the plaintiff’s complaint. Without examining the plaintiff’s charter .so far as it relates to the regularity of the proceedings taken to make and grade Milligan street, but assuming that the procedure which resulted in levying the tax was regular and that the plaintiff acquired a lien upon the defendant’s premises therefor, we do not think the complaint states a cause of action. If this action can be maintained, it is because it is authorized by some statute. That the plaintiff has no right of action at common law to secure the relief sought is manifest. The relief demanded is that the tax be adjudged a lien on the defendant’s premises, that such lien be foreclosed by a sale thereof to pay the tax assessed upon laying out such street, with twelve per cent interest and costs, and that the defendant’s equity of redemption therein be foreclosed. By the plaintiff’s charter, the tax thus assessed became a lien upon the defendant’s land. (Laws 1850, chap. 330, § 45.) Section 64 provides that when a tax or assessment which is a lien upon a lot shall be returned by the collector unsatisfied, it may be enforced by an order of the trustees directing the lot to be leased for a time sufficient to pay the lien, interest and costs. The charter then prescribes the procedure to be adopted. If payment is not made, the president must cause the property to be leased to the person or his assigns who will take the same for the shortest term, and pay therefor the amount required, with interest and costs. After the sale, notice thereof must be given by the clerk to the owner, stating the length of time for which the same was let, the sum for which it was let, and that unless it be redeemed by payment thereof to the treasurer and ten per cent in addition for the benefit of the purchaser within thirty days after service of such notice, a lease will be executed by the president to the lessee. After thirty days from the service of such notice a lease may be executed of the property to the person to whom it was struck off, or his assigns, for the term for which it was struck off, briefly referring to the non-payment of the tax, assessment or other lien, and the lease shall be presumptive evidence that all the proceedings creating the lien, and for the enforcement thereof, to and including the lease, have been regular and according to law. (§§ 65, 66, 67.)

The only remedy given by the plaintiff’s charter for the collection óf a tax or assessment made for the purpose mentioned in the complaint is that above referred to.. That the complaint does not state a cause of action against the defendant under the provisions of the plaintiff’s charter is manifest.

The plaintiff, however, contends that this action is authorized by chapter 308 of the Laws of 1884, and the provisions of the general law for the incorporation of villages. Chapter 308 of the Laws of 1884 declares : “ The trustees and officers of any village in this State created by special charter shall have and possess the same powers as are prescribed in any general act for the incorporation of villages within this State, except as such special charter may be in conflict with any provision or provisions of said general acts,” If it -were to be held that this provision of the statute invested the plaintiff or any of its officers with power to collect this tax in the manner provided for by section 9 of title 6 of chapter 291 of the Laws of 1870, being the general act for the incorporation of villages, which we by no means hold or decide, it would still be necessary for the plaintiff to allege facts sufficient to constitute a cause of action under the provisions of that statute. Section 9 provides : “ In case the collector shall return that a tax or assessment on any estate is unpaid, and he is unable to collect the same, the trustees are authorized and empowered, after the lapse of thirty days after the date of such return, to prosecute á civil action against the owner or owners of such estate in the corporate name of the village, and to recover judgment for such tax, with twelve per cent interest thereon and all necessary costs and expenses of said action.” It then provides for filing a transcript and docketing the judgment in the county clerk’s office of the county wherein the village is situated, and that the judgment shall thereupon be a lien upon all real estate of the judgment debtor in the county where it is docketed, and that a sale of such real estate may be made on an execution issued to the sheriff of the county if not collected out of the personal property of the debtor, and that all the provisions of law in reference to sale and redemption of real estate on execution shall apply to sales and redemptions under that act. Under the provisions of this statute no action can be maintained by the collector or in the corporate name of the village until after the lapse of thirty days after the date of the collector’s return. While we find that it is alleged in the complaint that the collector returned the assessment roll to the trustees showing the collection of all the taxes and assessments in said roll, except the assessment against the defendant and her property, which the collector returned as unpaid, and that he was unable to collect the same, there is no allegation as to the date of or when this return was made, or any fact showing or which would tend to show that the thirty days after the date of such return had elapsed before the commencement of this action. No right of action existed under or was conferred by this statute until the lapse of thirty days after the date of the return that the tax or assessment was unpaid. Therefore, if it be admitted that the action could be maintained under section 9 of title 6 of chapter 291 of the Laws of 1870, still, as the complaint does not state facts sufficient to constitute a cause of action under that statute, it follows that the court erred in sustaining the plaintiff’s demurrer to the ninth division of the defendant’s answer.

Moreover, this action was not one to recover a judgment against the defendant for the amount of her tax under the provisions of that statute. It was an action to have such tax adjudged a lien upon the defendant’s premises, to enforce such lien by a sale of the premises for the payment of the assessment, interest and costs, and to foreclose the defendant’s equity of redemption therein. No such right of action is given by either of the statutes mentioned! By the plaintiff’s charter a person whose jxroperty is leased for the payment of a-fax or assessment against him is given thirty days after service upon him of a notice of such leasing in which to redeem his property therefrom upon the payment of the tax and ten per cent interest. Under the General Village Act, upon the sale of property under an execution issued upon a judgment rendered for any tax or assessment, the owner is given the same right of redemption as exists upon the ordinary sale of real estate under an execution. Thus, in the former case, the defendant would have had thirty days after notice in which to redeem her property from the lease made by the president of the plaintiff. In the latter case she would have had one year from the time of the sale in which to redeem. These rights of redemption are substantia], and the plaintiff is not entitled to maintain an action that would in any way limit or deprive her of such rights.

These considerations lead us to the conclusion that the interlocutory judgment herein should be reversed.

HaediN, P. J., and MeRWIN, J., concurred.

Interlocutory judgment sustaining the plaintiffs demurrer reversed, with costs, and interlocutory judgment overruling such demurrer granted, with costs of the demurrer to the defendant, and leave granted to amend the'complaint upon payment of the costs of the demurrer and the appeal.


source: Caselaw Access Project

author: MaetiN, J. :

license: Public Domain

text:
    C. Fred Thompson, Respondent, v. Kate Sheridan, Appellant, Impleaded with Another, etc.

      Seturn of a justice of the peace — conclusive upon an wppeal — remedy if it be false — when a defendant appears in time.

    The facts stated in the return of a justice of the peace, as to what occurred before him upon the trial of an action, cannot upon appeal be controverted by affidavits; such return is conclusive as to the facts stated therein. If the return be false the remedy of the party aggrieved thereby is by an action against the justice.
    Where a defendant appears before a justice of the peace 'on the return day of a summons, before judgment is rendered, while the plaintiff is still present, and asks to be permitted to appear and defend, it is error for the court to refuse to allow him to do so.
    Appeal by the defendant, Kate Sheridan, from a judgment of the County Court of Cortland county in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 29th day of March, 1894, upon the decision of the court affirming the judgment of a justice of the peace of the town of Cortlandville, Cortland county, and also from an order entered in said clerk’s office on the 5th day of March, 1894, affirming such judgment.

      J. & T. E. Gourfmey, for the appellant.

      E. E. Mellon, for the respondent.
   MaetiN, J. :

This action was commenced before Dorr C. Smith, Esq., one of the justices of the peace of the town of Oortlandville, N. Y., to recover sixty-four dollars and seventy cents and interest for goods, wares and merchandise sold and delivered to the defendant.

The summons was issued May 3, 1893, and made returnable on the twelfth of the same month at one o’clock, p. M. It was personally served on both of the defendants May fifth. Upon the day the, summons was returnable the justice rendered a judgment in favor of the plaintiff for sixty-seven dollars and ninety-seven cents. The appellant claims that before such judgment was rendered the defendant, Kate Sheridan, appeared before the justice by counsel and. asked to be allowed to appear and answer. This was refused, and from the judgment entered by the justice Kate Sheridan appealed to the Cortland County Court. That court affirmed the judgment of the justice, with costs.

One of the principal and most important questions in this case is whether the court properly declined to allow the defendant to appear and answer. ITporL the hearing of the appeal in the County Court affidavits were read both upon the part of the appellant and upon the part of the respondent, as to what occurred at the time the appellant appeared before the justice. These affidavits are in direct conflict. "We, however, concur in the suggestion of the respondent’s counsel, that the facts stated in the justice’s return could not be controverted by affidavits, but that the return is conclusive as to the facts contained in it, and that in determining this question the return of the justice must alone be considered. In Barber v. Stettheimer (13 Hun, 198) it was held that upon an appeal to the County Court from a judgment of a justice of the peace, the truthfulness of the justice’s return, if it be fully responsive to the notice of appeal, cannot be questioned nor 'controverted by affidavits, nor can a further return be required as to the truth of matters in respect to which the original return is controverted by affidavits. If the return be false the remedy of the party' aggrieved thereby is by an action against the justice. In Fitzgerald v. Fitzgerald (25 Hun, 319), and Collier v. Van Hoesen (6 Wkly. Dig. 49) the same doctrine was held. On appeal, affidavits in support of allegations of error in fact cannot be read, when they relate to any matter within the knowledge of the justice. The facts must appear by the return. (Gibbons v. Van Alstyne, 29 N. Y. St. Repr. 461.)

In the justice’s return in this case it was stated:

May 12. Case duly called at 1 r. m. Plaintiff appeared in person and made oral complaint herein, demanding judgment against the defendants for the sum of $64.70, and interest thereon from January 18, 1893, and costs, for goods, wares and merchandise sold and delivered to the defendants at their request, and on their promise to pay therefor, to the amount, value and agreed price of $64.70, with interest as above; neither of the defendants appeared, and, after waiting one hour neither of the defendants appeared, and the plaintiff being ready, I proceeded to the trial of this action. The plaintiff was sworn as a witness in bis own behalf. No other evidence offered and evidence closed. After the plaintiff had rested and the evidence was closed, and five minutes after two o’clock, p.h., T. E. Courtney, Esq., came into my office and asked to be allowed to appear and answer for the defendant, Mrs. William Sheridan, swore to his authority to appear for her, and offered to pay plaintiff’s costs herein made on this the return day of the summons. The plaintiff was present and objected, and refused to allow Mr. Courtney to so appear and answer, and asked that judgment be rendered and entered herein, to which the defendant excepted. Whereupon I did immediately, and on this 12th day of May, 1893, render and enter judgment herein in favor of the plaintiff and against the defendants for the sum of $67.97. To wit: — Damages, $65.67. Costs, $2.30. Judgment, $67.97. All of which is respectfully returned. Dated Cortlandville, N. Y., June 20, 1893.

“DORR C. SMITH, Justice of the Peace.”

(Indorsed.) “Filed June 27, 1893, S. K.-Jones, OlerkP

Thus, by the return, it plainly appears that before the judgment was entered, and while the plaintiff was present, the defendant appeared and asked to be allowed to appear and answer, and that upon the objection of the plaintiff this request was denied and judgment was subsequently entered. Thus the question presented is, whether, where a defendant appears before a justice of the peace on the return day, while the plaintiff is present, and asks to appear and answer, the justice can properly refuse to permit him to do so. In Atwood v. Austin (16 Johns. 180) it was held that where a defendant in a Justice’s Court is ready in court to prove his defense, at the time that the plaintiff closes his case, he ought to be allowed to enter into it, although he was not present when the trial commenced. In that case the judgment was reversed because the justice declined to permit the defendant to prove his defense. That case was before the Revised Statutes went into effect, which, so far as they affect this question, were in all their essential particulars like the provisions of section 2931 of the Code of Civil Procedure. After the Revised Statutes this question arose in the ease of Pickert v. Dexter (12 Wend. 150), where, upon the return of a summons in a Justice’s Court, after waiting one hour and twenty minutes, the plaintiff exhibited his declaration, proceeded to the proof of his demand by examining two witnesses, and then (one and one-half hours after the time specified in the summons for appearance) the defendant appeared and asked leave to plead, offering to pay all costs, and the justice refused such leave, only permitting him to cross-examine the plaintiff’s witnesses, it was held that the refusal of the justice was error, and a judgment of the Common Pleas, reversing the justice’s judgment, was affirmed by the Supreme Court. In delivering the opinion in that case, Nelson, J"., referring to the case of Atwood v. Austin, said: “ The case of Atwood v. Austin I think unexceptionable, and am of opinion it should be observed in proceedings under the Revised Statutes.”

We have been cited to no recent case where this question has been decided, nor have we found any. We are unable, however, to see any good reason why the doctrine of the cases cited should not be applied under the statute as it now stands, as well as under the Revised Statutes, and are of the opinion that where a defendant appears before a justice of the peace on the return day, before a judgment is rendered, while 'the plaintiff is still present, and asks to be permitted to appear and defend, it is error for the court to refuse.

We agree with the respondent’s counsel that parties should not be encouraged to appeal from judgments in Justices’ Courts where the error complained of is trivial or technical, not affecting the merits, and where substantial justice has been done. But where a defendant is erroneously deprived of his right to appear and defend an action, we think the error is neither trivial nor technical, and cannot be disregarded upon the ground that it did not affect the merits or that substantial justice has been done.

We think the judgment of the County Court should be reversed.

Hardin, P. J., and Merwin, J., concurred.

Judgment of the County Court and of the Justice’s Court reversed, with costs of this apjieal and costs in the County Court to the appellant. '


author: Martin, J.:

text:
    Edmund K. Stedman, Appellant, v. Frank B. Ranney, Respondent.

      Evidence as to part of a cowoersation — statements explanatory thereof are ■ competent.

    Where a part of a conversation has been given in evidence upon the trial of an action, any other or further part of it may be given in reply which in any way explains or qualifies the part first given, but detached and independent statements, in no way connected with the statement given, are not admissible in evidence.
    Appeal by tbe plaintiff, Edmund K. Stedman, from a judgment of the County Court of Oneida county in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 23d day of December, 1893, upon the decision of the court reversing the judgment of a justice of' the peace of the town of Annsville, Oneida county.

      8. JE. Spinning, for the appellant.

      M. II. Powers, for the respondent.
   Martin, J.:

This action was commenced before Samuel Ferguson, Esq., a justice of the peace of the town of Annsville, Oneida county, N. Y., to recover for damages to the plaintiff’s cutter alleged to have been caused by the defendant’s negligence in not properly and securely fastening his horse, whereby it became loose and committed the injury for which the plaintiff sought to recover.

The defendant denied the allegations of the plaintiff that the injury to his cutter was caused by the defendant’s negligence; alleged that the plaintiff was guilty of contributory negligence, and that the injury was caused, not by the defendant’s horse, but by some other means.

Thus, the principal issues in this action were: (1) "Whether the plaintiff’s cutter was injured by the defendant’s horse, and, if so, (2) whether the defendant was guilty of negligence and the plaintiff free from contributory negligence.

The only witnesses who gave any evidence upon these issues were the plaintiff and defendant. On the direct examination of the plaintiff, after having testified that 'he found the defendant’s horse loose, immediately behind his cutter, and the upholstering of it torn, and after describing the extent of the injury, he testified to having had a conversation with the defendant at that time. He then testified: “ I had another conversation with defendant, I think on the eighth of March. He said he did not want tne to mention that his horse did the damage.” On the cross-examination he was asked: “Was there any further conversation between yourself and Ranney on .March eighth, except what you have stated ? A. There was a conversation. Q. In that conversation between yourself and defendant on March 8, 1893, of which you have given a part, who spoke first, and what did he say ? Objected to as immaterial and impi’oper, assuming a fact not shown to exist, unless it relates to the matter in issue. Objection sustained. Q. What was said, if anything, between yourself and defendant on that occasion, before defendant told you he did not want you to mention again that his horse damaged your cutter? Objected to same as last above. Objection sustained.” From these questions and rulings it appears that the plaintiff was permitted to testify to a single sentence of a conversation had between the parties, while from the plaintiff’s own evidence it is manifest that it was but a part of the conversation, and that the defendant was prevented from asking the plaintiff upon his cross-examination for the whole of it. On the ground that the ruling was erroneous, the County Court reversed the judgment of the justice.

The rule relating to proof of conversations of a payty originally was that such conversations being evidence against him in a suit, if counsel ask a witness as to anything which might have been said by an adverse party, the counsel for that party had a right to lay before the court all that was said in the same conversation, not only so much as might explain or qualify the matter introduced by the previous examinatipn, but even matters not properly connected with the part introduced upon the previous examination, provided only that it related to the subject-matter of the suit. The reason given for this rule was that it would not be just to take part of a conversation as evidence against a party, without giving to him at the same time the benefit of all that was said on the occasion. This rule was subsequently held to be too broad, and the rule as it now exists seems to be that where a part of a conversation has been given in evidence, any other or further part of it may be given in reply which would in any way explain or qualify the part first given, but that detached and independent statements, in no way connected with the statement given, are not admissible. (Rouse v. Whited, 25 N. Y. 170; Starin v. The People, 45 id. 333, 340; Platner v. Platner, 78 id. 90, 103; The People v. Beach, 87 id. 508, 512; Grattan v. Metropolitan Life Ins. Co., 92 id. 274, 284.)

We think the decision of the justice was in conflict with this rule. The defendant, upon the cross-examination of the plaintiff, was entitled to prove by him the whole conversation as to which he had testified, as it is manifest that the purpose of the examination was to give the whole instead of an isolated sentence of it, and thereby to qualify or explain it, and not to prove by the witness any detached or independent statement not connected with that given.

Moreover, the effect of this ruling was to entirely deprive the defendant of the right to cross-examine the plaintiff as to the conversation of which he had given a part. He was prevented from proving how the conversation arose, why and under what circumstances the statement was made and what was said which led up to it. We think the defendant should have been permitted to thus cross-examine the plaintiff. The right of cross-examination is justly regarded as one of the most efficient- tests which the law has devised for the discovery of truth, and a party should not be arbitrarily deprived of it. Although the extent to which a cross-examination may be carried is largely within the discretion of the trial court, yet where, as in this case, the court has practically deprived a party of that right, it is error. We think the County Court was right in reversing the judgment, and that the judgment of that court should be affirmed.

This conclusion renders it unnecessary to consider the other questions suggested by counsel in their briefs.

Hardin, P. J., and Merwin, J., concurred.

Judgment of the County Court affirmed, with costs.


author: MaetiN, J.:

text:
    The People of the State of New York, Respondent, v. Albert Mackinder and Another, Appellants.

      Confessions — their admissibility in evidence — when determined by the court, when by ' the jury — error in admitting evidence, when disregarded upon appeal — Code of Criminal Procedure, § 542.
    The confession made by a prisoner of the commission of a crime, when made under the influence of fear produced by threats, is inadmissible in evidence, but a confession voluntarily made by the defendant in a criminal action is competent evidence against him, although made when he was under arrest. If a confession be induced by promises or reward, made particularly by any one having immediate connection with the case, such inducement may vitiate the confession.
    When there is no conflict of evidence as to the circumstances under which the confession of a prisoner was made, the question as to the admissibility of such confession in evidence should be decided by the court, and not left to the jury. But where there is a conflict of testimony or room for doubt the court should submit the question to the jury, with instructions that if they are satisfied that the confession was procured by threats or promises they should disregard and reject it.
    Under the provisions of section 542 of the Code of Criminal Procedure, upon an appeal from a judgment convicting a person of a crime, an error by the trial court in the receipt of evidence will be overlooked if the receipt of the same could not have affected the substantial rights of the accused.
    Appeal by tbe defendants, Albert Mackinder and another, from a judgment of the Court of Sessions held in and for the county of Onondaga, rendered on the Jth day of December, 1893, convicting them of the crime of robbery in the first degree, and also from an order made on the 15th day of December, 1893, denying the defendants’ motion for a new trial.
    The defendants were jointly indicted and tried together at a Court of Sessions held in and for the county of Onondaga. They were found guilty, and sentenced to imprisonment in the State prison at Auburn for fourteen years. The crime of which they were convicted was alleged to have been committed on the 13th day of May, 1892, in the town of Camillus, Onondaga county, N. Y.
    On the morning of that day, Royal E. Fox, who was cashier of the Solvay Process Company, and one James Houser, left the office of that company to go to Split Rock quarry to pay the men employed, by the company, who were at work at that place. They went in a road cart drawn by one horse, and had with them $2,290.50 in envelopes in two wooden. boxes. "When they were passing along a private road to the quarry they were stopped by two masked men armed with revolvers who commanded them to hold up their hands, bound Eox and Houser, left them thus bound, and took the boxes and the money away with them. This transaction occurred at about nine minutes of ten in the morning of that day.
    Subsequently, and on or about the 14th day of August, 1892, the defendants were arrested, and on the next day both made confessions admitting the commission of the crime.

      Hoyt <& Harrington, for the appellants.

      B. J. Shore and T. E. Hancock, for the respondent.
   MaetiN, J.:

The first and most important question involved upon this appeal relates to the admission in evidence of the confessions made by the ■appellants. They contend that these confessions were made under duress; were obtained by threats, were involuntary, and, therefore, inadmissible. If these confessions were made under the influence ■of fear produced by threats, then it is manifest that the court erred in admitting them in evidence, and, as there was no other sufficient evidence upon which to convict the defendants, the judgment must be reversed.

Thus, the important question to be determined is whether the confessions made by the defendants were voluntary, or were produced by fear engendered by threats of the officers having them in charge. On the trial considerable evidence was given upon the question. The evidence of the defendants was to the effect that these confessions were obtained by threats, and, if believed, was, perhaps, sufficient to show that the confessions were involuntary, and produced by threats and promises made by the officers in whose charge they were. The defendant Albert Mackinder testified that he was in the custody of the chief of police of Syracuse; that he told him that if he did not tell him the truth he would give him twenty years for perjury, and that he would apply to the court for him and get him off with a light sentence; that he would make him out with a light sentence, and there was no good in his lying about it; that if he lied he would give him twenty years for lying; that the chief of police called him up and asked him if he was ready to tell the truth; that he told him he had told the truth; that the chief swore at him and called him a liar; that the chief said that there was no good of his lying about this, for those two men had been out and investigated this case, and if he didn’t tell them all about it he would give him twenty years; that the two men were Mr. Hoxsie and Mr. Hancock; that the chief said he would lock him up until he did tell; that it would be better for him to tell him, and he would apply to the court and get him off with a light sentence ; that upon the strength of what the chief said to him he signed the confession offered.

The defendant Frank testified that he was arrested in the forenoon of August fourteenth; that he had some conversation with the chief of police on that day, and that on the next day he asked the chief what he was arrested for, and he told him for highway robbery and an attempt at murder; that he then asked him if he could give bail, and he said he would not need bail for some time; that on that day Officer Kratz came where he was and asked him if he had anything to say, to which the defendant Frank replied, “No,” that he did not know anything; that he was then taken to the office of the chief of police where Becker, Kratz, Hoxsie, Hancock and "Wright were (Kratz and Becker were police officers, Hoxsie the sheriff, Plancock the district attorney and Wright the chief of police); that it was about ten o’clock in the forenoon; that Kratz and Becker said there was no use in his holding back, for they had all the evidence in the world against him ; that they had a man that saw the gray hairs in his head; that Mr. Wright asked him if he had anything to say ; that he said he didn’t know anything ; that he said he had an affidavit of the whole thing ; that he asked him to read it, and he read over one affidavit; that he told him if he put anything down against him to put down the same as the rest; that he wrote it down and he signed it; that he did not read it over to him after he made it out; that that was all that took place with reference to the confessions; that Mr. Wright told him that his brother George had testified, and said that he had traded revolvers for blankets; that in signing that paper making the statement that was offered, be acted upon and was induced to sign it upon the state* ments that had been made to him by Becker and Kratz with reference to the disclosures that had been made by his brother, threats in reference to the affidavits, and believing that it would be better for him than to withhold his statement.

On the other hand, the People called as witnesses Officer Kratz, Chief of Police Wright and Sheriff Hoxsie, who testified as to what transpired prior to and at the time these confessions were made and signed by the appellants. The evidence of these witnesses tended to show quite conclusively that the confessions admitted in evidence were voluntary, were not made under the influence of fear produced by threats, or induced by any promise by such officers. It was proved by several of these witnesses that before either of these confessions was made or signed, the district attorney stated to the defendant making it that before he made any statement he wanted him to know that he did it of his own free will and accord, voluntarily, without any threats or promises of any name or nature, and the district attorney asked him if he understood it, and he said he did, and that it was after such statement to each of the defendants that the confessions offered in evidence were made, read over to each of the defendants, and signed by him.

The chief of police admitted that on the day when Albert Mackinder made the confession introduced in evidence, he said something to him about committing perjury; that he read him the law on the subject, and told him that he was a liar; but testified that he had no recollection of telling him he would be arrested for perjury, and thinks he did not, but would not undertake to say he did not; that he thought he told them it would be better for them to tell the truth; that he did not say that if they would tell the truth he would use his influence with the court to have their sentences lightened, but that he told Albert that the best thing for him to do was to tell the truth; that all thieves from bank robbers down to clothes line thieves squealed when they got in tight places; that he thought he did not say to Albert that he would ask the court for mercy for him if' he would tell the truth about it, but that he would not swear that he did or did not; that he did not say that in substance to both of them. He also testified that this conversation was before the defendant Albert was informed of the charge against him, and related to his statement as to bis whereabouts, and where he obtained the money which he spent in going West, buying furniture, paying house rent, etc.; that he was not informed of the charge until the district attorney and the sheriff were present, and that it was after the district attorney had said to him that before he made any statement he wanted him to know that he did it of his own free will and accord, voluntarily, and that the confession was made without any threats or promises of any name or nature.

After the introduction of the evidence upon both sides bearing uj>on the circumstances under which these confessions were made, the court admitted them in evidence.

In submitting the case to the jury the court said: “ It was the duty of the court at the outset to pass upon the question particularly whether these instruments or statements, called confessions, should be received in evidence or not. The court has performed what it deemed its duty in that regard, and they have been received, but that is not conclusive upon you. You are now, as a jury, to pass upon the question whether they do come within the law permitting them to be received as evidence against the defendants, and I will read you the statute itself which lays down the rule as to the confessions and their reception. ‘ A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless,’ and this is the exception, ‘made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor; but is not sufficient to wan-ant his conviction, without additional proof that the crime charged has been committed.’ In other words, that the crime itself has been committed by somebody. The authorities go a little further than the statute itself, and authorities which I think this court is bound to regal’d.. The statute itself says, as I have read, that such confessions can be given, unless made under the influence of fear produced by threats. That is one thing. Or, unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor. That is another thing. But the cases themselves go a little further and say, in effect, that if they are induced by promises or reward, particularly by anybody having immediate connection with the case, such inducement may vitiate the confession. Now, gentlemen, you have beard tbe testimony on this branch of the subject very fully, you are able to sift it out and reach some conclusion as to what the truth is about the obtaining of these confessions. The fact that these defendants were in confinement is not duress in the sense of making the confession valueless. The fact that they were prisoners, of itself, does not vitiate the confessions. • The question is, whether the confessions were made voluntarily, without threats, without inducements, without promises, whether they had been imprisoned one day or more — but you are to take into consideration all the facts and circumstances surrounding their imprisonment to determine the question whether there were threats or inducements or promises. If you believe these confessions should be rejected as valueless and as against the law as I have stated it to you, then, as I said before, it would be-your duty to acquit these defendants on the evidence that is in this case. If, on the other hand, you accept and receive in evidence and conclude that these confessions were properly obtained and are right and proper evidence in this case, then it is for you to say whether they substantiate the charge beyond a reasonable doubt, taken in connection with other testimony in the case — substantiate the charge that these defendants were guilty of the crime charged in the indictment. One other thing I must call your attention to — each confession is to be taken, if taken at all, as against the one who makes it, and not as against the other.”

While, perhaps, the evidence shows that the chief of police who had these defendants in charge was more zealous than wise in trying to obtained from the defendant Albert Mackinder a true statement as to where he obtained the money that he had expended in traveling, in the purchase of furniture and for other purposes, and that hN language to the prisoner was not commendable, and while it may be that if the defendant Albert had then been informed of the charge made against him and his confession had been procured at that time and before he was apprised of the fact that no promises or threats should be considered by him in making such' confession, it would have been inadmissible, yet, as the evidence was to the effect that the confession was not made at that time and not until he had been expressly informed by the district attorney that if he made any statement it must be voluntary, made of his own free will and accord, and without any threats or promises, and not until after he bad stated that be understood that any statement he might make was to be voluntary, unaffected by any threat or promise of any kind, we are of the opinion that the court properly admitted the confessions in evidence, and properly submitted to the jury the question whether they were obtained through the influence of fear produced by threats or by reason of any promises made by the officers having the defendants in charge.

Section 395 of the Code of Criminal Procedure provides: “A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor.”

In The People v. Mondon (103 N. Y. 211, 219) it was said: “ The rule thus established (§ 395) is founded upon the common-law rule on the subject of confessions, but is much more definite and stringent. The rule as laid down in Hawkins is stated to be that a confession, whether made under an official examination or in discourse with private persons, which is obtained from a defendant either by the flattery of hope or by the impression of fear, however slightly the emotions may be implanted, is not admissible in evidence.” By the section of the Code quoted, the fear which is required to exclude the confession must be a fear produced by threats, and- the hope must be based upon the stipulation of the district attorney promising immunity from prosecution for the crime confessed.” A confession made by a defendant in a criminal action voluntarily, is competent evidence against him, although made when he was under arrest. (Cox v. The People, 80 N. Y. 500, 515; The People v. McGloin, 91 id. 241; The People v. Druse, 103 id. 655; People v. Chapleau, 121 id. 266.) A statement by a police officer to a prisoner, after she knew she was suspected of the crime, that they had found enough to convict her; she might as well own up,” was held not to be a threat within the meaning of section 395. (People v. McCallam, 3 N. Y. Cr. Rep. 189. See, also, The People v. Wentz, 37 N. Y. 303; Cox v. The People, 80 id. 500; The People v. McGloin, 91 id. 241.)

Where there is -a conflict in the evidence as to the circumstances under which such statements were made, the question of their admissibility in evidence should be decided by the court and not left to the jury. (Willett v. People, 27 Hun, 469.) But where there is a conflict of testimony or room for doubt, the court should submit the question to the jury with instructions that if they are satisfied that the confession was procured by such inducements that they should disregard and reject it. (People v. Kurtz, 42 Hun, 335; People v. Fox, 121 N. Y. 449, 453; People v. Cassidy, 133 id. 612.)

"Within the doctrine of these authorities we think it is obvious that the question whether the confessions of the defendants were improperly procured was for the jury; that it was justified in finding that they were not, and, consequently, justified in finding the defendants guilty of the offense charged in the indictment.

. The appellants also contend that the court erred in permitting the witness George A. Mackinder to testify as to the number of pistols he sold the defendant Albert Mackinder. The question was asked and answered before any objection was taken, and there was no motion to strike out the answer. Moreover, we think the evidence was admissible, and that the exception was not well taken.

On the cross-examination of the witness George A. Mackinder, who had testified to having sold his brother Albert two pistols about two and one-half months before the robbery, he was asked: What did you let him have the pistols for? [Objected to.] The Court: Do you mean whether he sold them to him or not ? Mr. Kennedy : No, sir; the purpose he let him have the pistols for. Mr. Hancock : I object to that. The Court: The objection is sustained. [Exception taken by defendants’ counsel.] ” The defendants contend that the court erred in rejecting this evidence. As I construe the question of the defendants’ counsel, it called for the purpose or motive of George in letting his brother have the pistols. It is not quite apparent how evidence of his purpose was admissible. If it was, the defendants’ counsel should have explained to the court how. If, however, I am wrong in construing the object of the question, and it should be construed as calling for the purpose of Albert in buying' them, then it would seem that the witness could not have known his purpose unless Albert stated what it was, and thus the evidence would have been at most the declaration of the defendant in his own favor. But, be that as it may, if it be admitted that this evidence ought to have been received in explanation of the evidence of the witness given upon his direct examination, and that it was error to exclude it, it is obvious that the error was harmless, as the court clearly and positively instructed the jury that unless it found that the defendants’ confessions were voluntary they could not be convicted. As section 542 of the Code of Criminal Procedure provides that the court must give judgment, without regard to technical errors or to defects or to exceptions which do not affect the substantial rights of the parties, it follows, we think, that if this ruling was erroneous, it should be disregarded, as it could not have affected the substantial rights of the defendants.

On the trial the prosecution asked the witness Purnell, who had testified to having seen the defendant Frank Mackinder after the robbery and the same month he was arrested, the following question : “ Now, state whether he had a quantity of money he was displaying there in your shop.” This was objected to as “ incompetent and improper, and immaterial, and too remote.” The objection was overruled, and the defendants excepted. We think there was no error in receiving this evidence.

The People were also permitted, under the defendants’ objection that the evidence was incompetent, immaterial and not a part of the res gestae, to prove by the witness Hoxsie that, in a conversation which took place after the statement or confession had been made by Frank Mackinder, that he had said to him, “Frank, would you have shot those men that morning ?” to which he said: “ I don’t know; I was pretty nervy that morning.” From an examination of the appeal book it would seem that this conversation took place at the time that the statement by Frank Mackinder was made, and amounted at least to an admission that he was there at the time the offense was committed. We think the evidence was admissible. If not, we are unable to see how, under all the evidence in the case, its reception was prejudicial to the defendant. Section 542 of the Code of Criminal Procedure provides : After hearing the appeal the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” If the confessions made by the defendants were believed by the jury, they were entirely sufficient to justify the verdict, and if they were not believed, the jury was instructed by the court tliat it could uot find a verdict against tliem, so that the question of the guilt or innocence of the defendants was made dependent upon the validity of the confessions,'and this evidence could have in no way affected the result. (People v. Chacon, 102 N. Y. 669; People v. Dimick, 107 id. 13.)

We have examined the defendants’ exception to the remarks of the court during the discussion as to the admission of the confessions of Frank Mackinder, but find nothing in that exception that requires us to disturb the judgment, and discover nothing, in the statement of the court that could have been prejudicial to the defendants.,

The following appears in the appeal book: Mr. Kennedy : I desire to have it go upon the record that counsel has made a statement that a young man of slight build, about twenty-six years old, got upon a train with a revolver and committed one of the most infamous crimes known, and that he is now in prison for ninety-nine years. Mr. Hancock: More or less. Mr. Kennedy: I desire to except to that statement, and I now ask that a juror be withdrawn and that the case go over the term. The Court: That is denied. [Exception taken by defendants’ counsel.]” From this statement we are unable to discover that any error was committed, or that the court erred in denying the defendants’ request.

Having now considered all the exceptions suggested by the learned counsel for the defendants upon their brief, and having found none that would justify us in reversing the judgment, it follows that the judgment and order denying the defendants’ motion for a new trial should be affirmed.

HaediN, P. J., and MehwiN, J., concurred.

Conviction and judgment of the Court of Sessions of Onondaga county affirmed, and after the judgment is entered in the judgment book, a certified copy of this entry shall be forthwith remitted to the clerk of Onondaga county, with whom the original judgment roll is filed, in accordance with section 547 of the Code of Criminal Procedure.


text:
    Eugene J. Kline, Appellant, v. John P. Hibbard and Others, Respondents.

      Commissioners of highways — removal of encroachments — abuse of legal process — malicious prosecution — action to recover damages therefor — want of probable cause the basis thereof— when a question of law, when one of fact.

    Commissioners of highways, in the discharge of tlieir official duties, may remove an encroachment upon a highway after notice thereof, although such notice is informal.
    An action or proceeding- instituted by one person against another from wrongful or improper motives, and without probable cause to sustain it, is a malicious pros- • ecution. There is a distinction between a malicious prosecution and a malicious abuse of legal process.
    An abuse of legal process is where a party employs such process with some unlawful object in view and not to effect the purpose for which it was intended by law.
    It is the right of every person to institute criminal proceedings whenever he believes a public offense has been committed; and it would be both unjust and impolitic to make a prosecution which fails an actionable wrong; it is, however, the duty of every one not maliciously to institute against another proceedings which he has no good reason to believe are justified by the facts and law.
    To sustain an action for malicious prosecution it is necessary that three elements should concur in the transaction complained of, viz., the proceeding must have been instituted without probable cause; there must have been malice in instituting it, and it must have been completely terminated. The want of probable cause is the essentia? basis of the action, and the burden is upon the plaintiff to prove, by circumstances or otherwise, that the defendant had no probable ground for commencing the prosecution.
    What facts and circumstances amount to probable cause is a pure question of law, but whether they exist or not is a question of fact. If tire facts are controverted, then the question of probable cause should be submitted to the jury with instructions from the court as to the law. But when the facts are undisputed, or the plaintiff’s evidence fails to show want of probable cause, it becomes a mere question of law which the court must decide.
    Appeal by the plaintiff, Eugene J. Kline, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 8th day of November, 1893, upon the dismissal of the complaint directed by the court after a trial at the Onondaga Circuit before the court and a jury, and also from a decision and order made at the Onondaga Circuit and entered in said clerk’s office nonsuiting the plaintiff, with notice of an intention to bring up for review on such appeal the said judgment, order and decision.

      Homer Weston, for the appellant.

      Qoodélle do Notti/ngham, for the respondents.
   Martin, J.:

This action was brought for malicious prosecution. The defendants were commissioners of highways of the town of Onondaga, N. T. It appeared by the undisputed evidence in the case that in the village of Onondaga Valley, a hamlet in the town of Onondaga, a strip of land about sixty rods in length and six rods in width had been used uninterruptedly by the public for street and other purposes for a period of much more than twenty years. The plaintiff was the owner and in possession of a lot which fronted upon this land. Some time in the summer or fall of the year 1892 he inclosed a portion of it in front of his premises, by surrounding it with a pipe and post fence, by which the public was excluded therefrom and deprived of its use for the purposes for which it had formerly been used. The land inclosed had been used for more than twenty years as a road or passageway for travelers on foot, and sometimes teams were driven upon and across it. A sidewalk passed over it, and was in general use by persons going along that side of the street.

The manifest object of the plaintiff in erecting this fence was to procuro the use of a portion of this land to which he had no right, and to deprive the public of its use for any purpose, and especially as a street or highway. That he had no title to the premises thus inclosed, except such as was subject to the public easement, is obvious from the proof in 'this case. After he had thus inclosed this land, and on or about November 26,1S92, the defendants, as commissioners of highways of the town of Onondaga, served upon him a written notice requiring him forthwith to remove his fence and a sidewall? he had built in front of the land so inclosed. The plaintiff did not comply with the requirements of this notice, but permittedxtlie fence and walk to remain there until December 5, 1892.

On that day the defendants, as such commissioners, went to the place where the fence and sidewall? were, and commenced to remove them to enable the public to have the use of the premises for the purpose of passing over them as they had previously done. While the defendants were engaged in removing these obstructions, the plaintiff attempted to prevent them from doing so, and forcibly resisted the defendants in their efforts to remove them. Thereupon the defendants went to the office of George B. Clark, Esq., who was a justice of the peace in and for the town of Onondaga,. and stated to him the facts relating to this transaction, who advised them that the plaintiff was liable to arrest under the provisions of sections 47 and 124 of the Penal Code, for resisting public officers while engaged in the performance of their duties. The defendants then made a written complaint in which it was in effect stated that while they were attempting to perform their duties as such public officers, by removing the fence and walk in question, the plaintiff with force and arms willfully resisted them, and directed the men in his employ to aid him therein.

Upon this complaint the justice issued a warrant for a violation of sections 124 and 47 of the Penal Code in resisting public officers in discharging, or attempting to discharge, the duties of their office, and the plaintiff was subsequently arrested thereon. Afterwards he moved for his discharge on the ground of the insufficiency of the complaint and warrant, which motion was denied. He then jaleaded “ not guilty,” and elected to be tried by the justice and a jury. A jury was subsequently drawn, and upon the adjourned day the complainants were permitted, against the plaintiff’s objection, to withdraw the warrant, and no further proceedings were had in the matter.

The plaintiff was not imprisoned, except that he was arrested by an officer, taken before the justice, and afterwards permitted to go where he pleased, but directed to be present at the times to which the proceedings were adjourned. It is for that prosecution and arrest that this action was brought.

On the trial, after the evidence was closed, the court granted a nonsuit. The grounds upon which the motion was made, briefly stated, were: That the evidence failed to show a cause of action; that the plaintiff failed to show any right or title in himself to the premises in dispute, or any right to build a fence or walk thereon; that he failed to show want of probable cause for making such complaint and arrest, and that there was no evidence of malice in. making the complaint.

Tlie correctness of the court’s ruling in nonsuiting the plaintiff is challenged by him, and presents the most important and substantially the only question involved in this case. That the strip of land inclosed by him had been dedicated to the use of the public, and accepted for highway purposes among others, there can, we tliinlc, be no doubt. Therefore, in examining the question in this case, it must be assumed that the land in question had been dedicated and accepted for the purposes for which it had been used by the public for more than twenty years, and that one of the purposes was the use of it as a sidewalk by persons traveling along that side of the highway, and for driving upon when desired. We think the land in question had so far become a part of the public stre’et or highway as to authorize the defendants, as such commissioners, to remove 'any obstruction to the ordinary travel over it. Hence, the question arises whether the defendants, in removing such obstructions, were confined to the statutory remedy for the removal of encroachments upon public highways, or, whether they might, in their discretion, remove them without resorting to such proceedings. That question is not an open one in this court, as .it has, in effect, been held by us that commissioners of highways, in the discharge of their official duties, may remove an encroachment upon a highway, after notice thereof, although informal. (Hathaway v. Jenks, 67 Hun, 289.) Thus, we are led to the conclusion that the defendants, as such commissioners in the discharge of their official duties, were authorized to remove the obstructions in question.

That the defendants were public officers was known to the plaintiff ; that they were acting in the discharge of their official duties as such, in the removal of the fence and sidewalk, was apparent, and must have been understood by him; and he admits that he resisted them in the performance of such duties. Under these circumstances, we do not think he was entitled to recover, or to have any question in the case submitted to the jury.

It is the lawful right of every person to institute and set on foot criminal proceedings whenever he believes a public offense has been committed; and it would be both unjust and impolitic to make the prosecution which fails an actionable wrong. Nevertheless, it is a duty which every one owes to another not to institute proceedings maliciously against him, which he has no good reason to believe are justified by the facts and law. / An action or proceeding instituted by a person against another from wrongful or improper motives, and ■without probable cause to,,sustain it, is a malicious prosecution. There is a distinction between malicious prosecution and a malicious abuse of legal process. An abuse of legal process is where a party employs it for some unlawful object, and not to effect the purpose for which it was intended by law. It is clear that this action was for malicious prosecution and not for a malicious abuse of legal process, although the appellant in his brief seems to intimate that it was for the latter.

To sustain an action for malicious prosecution it is necessary that three elements shall concur in the transaction complained of: (1) The proceeding must have been instituted without probable cause. (2) There must have been malice in instituting it. (3) It must have been completely terminated. The want of probable cause is the essential basis of the action, and the burden is upon the plaintiff to prove by circumstances, or othenvisé, that the defendant had no probable ground for commencing the prosecution. What facts and circumstances amount to •probable cause is a pure question of law: but whether they exist or not may be a question of fact. If the facts are controverted, then the question of probable cause should be submitted to the jury with instructions from the court as to the law. .But when the facts are undisputed, or the plaintiff’s evidence fails to show want of probable cause, it becomes a mere question of law which the court must decide. These principles are so far elementary that no authorities need be cited to sustain them. Applying them to this case, it is obvious that the question of want of probable cause was one of law to be decided by the court.

A. careful consideration of the evidence in this case has led us to the conclusion that it was insufficient to justify the court in holding that there was a want of probable cause or in submitting the case to the jury, and that the plaintiff was properly nonsuited.

Having examined the other exceptions to which our attention was called by the appellant’s brief, and having found none that would justify a reversal of the judgment, or that requires special examination, we think the judgment should be affirmed.

Hardin, P. J., and Mrrwin, J., concurred.

Judgment affirmed, with costs.


text:
    John W. Truesdell, as Administrator, etc., of John Fitzgerald, Deceased, Respondent, v. Hannie L. Bourke, as Executrix, etc., of William J. Bourke, Deceased, Appellant.

      Action under chapter 814 of 1858 to recover money of a decedent held by a third person in fraud of creditors.

    Under the broad and comprehensive provisions of chapter 814 of the Laws of 1858 an action is maintainable to recover money which came into the hands of a third person in fraud of the creditors of a decedent, and if, while the money was thus in the hands of such person, it was demanded of him by the execu-' tor of the decedent on that ground, and he refused to give up the same, a recovery of such money by the executor will be sustained.
    Appeal by the defendant, Dannie L. Bourke, as executrix, etc., of William J. Bourke, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the lJtli day of January, 1894, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 20th day of January, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Jenney té Marshall, for the appellant.

      William, Kennedy, for the respondent.
   Martin, J.:

The statute under which this action was brought provides :

SeotioN 1. That any executor, administrator, receiver, assignee, or other trustee of an estate, or the property and effects of an insolvent estate, corporation, association, partnership or individual, may, for the benefit of creditors or others interested in the estate or property so held in trust, disaffirm, treat as void, and resist all acts done, transfers and agreements made in fraud of the rights of any creditor, including themselves and others, interested in any estate or property held by or of right belonging to any such trustee or estate.

§ 2. That every person who shall, in fraud of the rights' of creditors and others, have received, taken, or in any manner interfered with the estate, property or effects of any deceased person, or insolvent corporation, association, partnership or individual, shall be liable in the proper action to the executors, administrators, receivers or other trustees of such estate or property for the same, or the value of any property or effects so received or taken, and for all damages caused by such acts to any such trust estate.” (Laws 1858, chap. 314.)

This action was brought by the plaintiff as administrator of the estate of John Fitzgerald, deceased, to recover the sum of $1,000, with interest, which the plaintiff claimed belonged to the estate of the intestate, and was received and taken by William J. Bourke in fraud of the rights of the creditors of the estate of J ohu Fitzgerald, deceased.

The plaintiff’s intestate died at the city of Syracuse on the 28th day of February, 1882. At the time of his death he was, and for a long time had been, hopelessly insolvent, and his debts were many times greater in amount than the total assets which came into the hands of the administrator. After the death of John Fitzgerald, William J. Bourke, who was a Roman Catholic priest and pastor of the decedent, obtained through the hands of Kate Fitzgerald, a niece of the plaintiff’s intestate, the sum of $1,000, which belonged to the estate of the plaintiff’s intestate, and which Father Bourke testified the decedent had promised to give him to help build a school building for the church over which he presided.

The evidence introduced by the defendant tended to show that this money was received by Father Bourke as pastor or agent of the Church of St. John the Baptist to aid in building a charity school, and that he deposited it in his own name in the Syracuse Savings Bank. The evidence also tended to show that soon after the death of John Fitzgerald, a package which contained some of the property owned by the plaintiff’s intestate at the time of his death was secretly sent to the house of Father Bourke, presumably by Kate Fitzgerald, and that it was afterwards taken away by some girl unknown to him; and that after the death of ,tlie plaintiff’s intestate, Father Bourke stated to a witness called by the plaintiff that he had received this $1,000, but that it was a question whether or not he could keep it.

Subsequent to the commencement of this action, and before tlietrial, Father Bourke died, leaving a last will and testament, in which the defendant was named as his executrix, who was substituted as a party to this action. Ilis will contained the following clause: “ There is also deposited in the Syracuse Savings Bank the sum of one thousand dollars, which belonged to the Sacred Heart school under the supervision of the Sisters of St. Joseph, unless a judgment is rendered against me or my estate in the action pending in favor of John ~W. Truesdell, as administrator of the goods, chattels and credits of John Fitzgerald, in which event I direct said money to be applied in satisfaction of said judgment.”

A careful examination of all the evidence contained in the appeal book has led us to the conclusion that, although it was meager, owing to the fact that all the parties to the transaction had died before the trial, yet it was sufficient to justify the court in submitting to the jury the questions whether the $1,000 received by Father Bourke was received in fraud of the creditors of the plaintiff’s intestate, and whether the sum thus i-eceived was in his custody or under his control in that it was deposited in his name in the Syracuse Savings Bank at the time of the demand made by the plaintiff. We think the provisions of Father Bonrke’s will, with the other evidence in the case, wrere sufficient to justify the jury in finding that the $1,000 deposited in the Syracuse Savings Bank at the time of the demand was the property or the avails of it received from the estate of the plaintiff’s intestate, and that the money was received by him in fraud of the creditors of Jolm’Fitzgerald. If this money came into the hands of Father Bourke in fraud of the creditors of John Fitzgerald, or if, while it was in his possession or under his control, it was demanded by the plaintiff on that ground, and he refused to give it up, we think it could bo recovered under the provisions of the statute of 1858. That statute is broad and comprehensive and sufficient, we think, to authorize and uphold the recovery herein. (Barton v. Hosner, 21 Hun, 467; Lichtenberg v. Herdtfelder, 103 N. Y. 302; Harvey v. McDonnell, 113 id. 526; National Bank v. Levy, 127 id. 519.)

On the trial the defendant offered to prove by Rhoda Mara, one of the members of Father Bourke’s church, that after the $1,000 in question w'as received by him, he stated from the altar that he had received that sum from John Fitzgerald. This evidence was excluded. The same fact was offered to be proved by reading the cross-examination of James F. Keefe, who was sworn as a witness upon a former trial, and that evidence was also excluded. To these rulings the defendant excepted. It appeared from the offered evidence of James F. Keefe that this statement was made three or four months after the death of Fitzgerald. As it was not, therefore, any part of the res gestea, we think it was at most a mere declaration by the defendant’s testator in his own favor, that it was inadmissible, and that the exceptions to those rulings were not well taken.

We have examined the other exceptions to the admission and rejection of evidence, and to the judge’s charge, but have found none that would justify us in disturbing the judgment, or that need be specially discussed.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order affirmed, with costs.