author: Haight, J.:

text:
    In the Matter of the Probate of the Last Will and Testament of Alice W. Bradley, Deceased; Merritt E. Bradley, Petitioner, Appellant; John R. Bradley and Others, Respondents.

      Revocation of probate — a person interested in the estate — service of the citation —. supplemental citation.

    The fact that a person, who was named in the citation issued upon an application to have a will relating to personal property admitted to probate, appeared upon the return of the citation and filed objections to the probate, but did not appear to substantiate the same upon the adjourned day, and the will was thereupon admitted to probate, does not estop such person from thereafter proceeding, by petition under section 2647 of the Code of Civil Procedure, to apply for a revocation of the probate, upon the same grounds which were presented by his prior objections.
    The term “a person interested in the estate,” used in said section 2647 to designate those who are entitled to commence proceedings by petition thereunder for the revocation of probate, is not confined to legatees named in the will, but includes next of kin of the decedent.

      Semble, that the term “a person interested in the estate,” was adopted in the Code in place of the term “next of kin,” used in the Ee vised Statutes, in order to give persons other than the next of kin, but who were interested in the estate, such as a widow for instance, the right to petition.
    An “heir at law” is not, as such, “a person interested in the estate” under a will relating to personal property only, and a petition for the revocation of the probate of such a will, under said section 2647, which alleges that the petitioner is an heir at law of the decedent, without stating his relationship or whether he is a next of kin, is insufficient to show that the petitioner is a person interested in the estate and, therefore, entitled to institute the proceeding.
    The provision of section 2317 of the Code of Civil Procedure, that “ The presentation of a petition is deemed the commencement of a special proceeding within the meaning of any provision of this act which limits the time for the commencement thereof; hut in order to entitle the petitioner to the benefit- of this section, a citation issued upon the presentation of the petition must within sixty days thereafter he served,” etc., does not require the citation to he served within sixty days after the presentation of the petition, hut means that it must he served within sixty days after the citation is issued by the Surrogate’s Court.
    A petition for the revocation of the probate of a will of personal property under section 2647 of the Code was presented to the Surrogate’s Court two days before the expiration of the one year after the admission of the will to probate limited by section 2648 for the presentation of such a petition; a citation was thereupon issued which was defective as to parties and which as to certain parties was not served at all; on the return thereof, more than sixty days after the presentation of the petition, an amended or supplemental citation was issued by the surrogate, which was served upon certain of the parties named therein, and publication as to the other parties was commenced, within sixty days after its issuance.

      Held, that the proceedings were regular.
    A citation issued by a surrogate after and in place of an original citation, where there has been a failure to serve all the parties necessary or where other persons than those named therein were necessary parties to the proceeding, is a “ supplemental citation,” which a surrogate is authorized, by section 2481 of the Code, to issue under such circumstances, although it may not he marked “supplemental.”
    Appeal by the petitioner, Merritt E. Bradley, from a decree of the Surrogate’s Court of Wyoming county, entered in tbe office of the surrogate of that county on the 10th day of June, 1892, dismissing the appellant’s petition for the revocation of the probate of the will of Alice W. Bradley, deceased, and ratifying and confirming the probate of the will.

      Johnson do Charles, for the appellant.

      L. A. Hayward, for the respondents.
   Haight, J.:

On the 21th day of June, 1890, a paper purporting to be the last will and testament of Alice W. Bradley, deceased, was admitted to probate by the surrogate of Wyoming county. On the 22d day of June, 1891, the appellant petitioned that court for a decree revoking the probate, and for such other or further relief as may be just.” On the receipt of such petition the surrogate issued a citation directed to the legatees named in the will, citing them to appear at a Surrogate’s Court to be held in that county on the 8th day of September, 1891, at ten o’clock a. m., tiren and there to show cause why the probate of such will should not be revoked. Most of the legatees being non-residents of the State, an order of publication was made, and the citation was duly published in a newspaper known as the Wyoming County Leader for six successive weeks; but, through a mistake of some of the employees of the Perry Herald, it was published in that paper but four weeks. On the return day of the citation it appeared that John R. Bradley had not been served, and that the executor named in the will, L. A. Hayward, had not been made a party to the proceeding. The appellant thereupon applied to the surrogate to issue a supplemental citation including the name of Hayward as a party, which motion -was granted; and that citation was regularly served. It was made returnable on the 9th day of November, 1891, at which time the respondents through their attorney moved that the proceedings be dismissed, upon the following grounds:

“ 1. The petition to revoke the probate is made by Merritt E. Bradley, who was a party to the proceedings under which the letters testamentary were issued, and was named in the citation as one of the next of kin of the deceased. On the return day of the citation, May 26th, 1890, he appeared by his attorneys and filed his objection to the probate of the will. The objections were identical with those now presented as grounds for revoking the probate. The case was adjourned upon his application to June 21th, 1890, to give him time to support his objections by competent proof. On the adjourned day he did not appear, and the will was then admitted to probate. He has had his day in court, and is now estopped from further contest of the will upon the grounds urged before and settled by the decree.
“ 2. The petitioner in this case is not one of the persons authorized by the Code (section 2617) to institute a proceeding of this kind, as he is not interested in the estate. The former statute from which this section is partly taken, allowed ‘any of the next of kin’ to make the application. It is now necessary, under the above section, that the petitioner have a present pecuniary and existing interest in the estate. This petitioner has no interest whatever, not even a contingent one, as he gets nothing under the will. * * *
“ 3. The surrogate had no power to issue a second citation that was not even supplemental to the original citation, but one wholly new. There is no statute authorizing the issuing of such a citation ninety-one days after filing the petition, as was done in this case. It is the duty of the surrogate at once, on the presentation of the petition, to issue the citation.
“ 4. This case comes under the definition of special proceedings as given in sections 3333-4 and section 3343, subdivision 20 of the Code; and in a special proceeding, section 2517 of the Code, requires that service of a citation be made within sixty days after the presentation of the petition. The proof here shows that no service was made upon any of the parties, and no publication of the citation was made until 100 days after. The surrogate lost jurisdiction of the case by the failure to make service within the tune required by law.
“ 5. The jurisdiction of a surrogate relating to the revocation upon petition of the probate of a will, is wholly statutory, and the statute must be strictly followed. It cannot be altered or disregarded.”

This motion was granted, and from the decree entered thereon this appeal was taken.

Section 2647 of the Code of Civil Procedure provides that A person interested in the estate of the decedent may, within the time specified in the next section, present to the surrogate’s court in which a will of personal property was proved, a written petition, duly verified, containing allegations against the validity of the will, or the competency of the proof thereof, and praying that the probate thereof may be revoked, and that the persons enumerated in the next section but one may be cited to show cause why it should not be revoked. Upon the presentation of such a petition, the surrogate must issue a citation accordingly.”

The next section provides that the petition must be presented within one year after the recording of the decree admitting the will to probate.

It is claimed, as we have seen, that the appellant is estopped from presenting a petition under the provisions of the Code, for the reason that, on the return of the citation issued upon the application to have the will admitted to probate, he appeared and filed objections to such probate, and did not appear to substantiate the same upon the adjourned day thereafter. We do not so understand the Code. The provision is broad. A person interested in the estate ” may present the petition “ within one year after the recording of the decree admitting the will to probate.” The evident purpose was to afford a safeguard against imposition or mistake, and to afford a means of relief in the case of the discovery of new evidence. This question has been fully considered in The Matter of the Probate of the Will of Gouraud (95 N. Y. 256, 258, 259) and in The Matter of the Will of Kellum (50 id. 298), in which it was held that the petitioners had the right to have the whole question litigated and determined the same as if no adjudication had, been had thereon. It is true that those cases arose under the revised statute, but in the former case, the provisions of the Code were discussed and stated to be substantially to the same effect.

We cannot assent to the proposition that “a person interested in the estate ” must be a legatee under the will. Such a construction of the provision would virtually nullify the statute. It would deprive the next of kin who were not fortunate enough to be legatees of the right of the review given by the Code. Ordinarily, the persons who receive the benefits under a will are interested in the maintaining of it. Under the Revised Statutes, it was provided that “ any of the next of kin ” might present the petition. Under the Code, “ a person interested ” may present it. The change in phraseology was doubtless made for a purpose, and was doubtless intended to give others than the next of kin, but who were interested in the estate, such as a widow, for instance, the light to the petition.

The petition does not show that the appellant is a person interested,” under the provisions of the Code. It does allege that he is an heir at law. It does not state his relationship, or whether he is a next of kin. He may be an heir at law and not a next of kin. An heir at law may Tie entitled to take real estate by descent, and yet he-may not be entitled to a share in the distribution of the personal estate. Under the provisions of the Code, these proceedings are limited to wills of personal property. There may be a will disposing of both real and personal property, and the proceedings may be instituted as to such a will, but in such proceedings the devisees are not necessary parties, and the revocation, if made, would only extend to the personal property. (In the Matter of the Will of Kellum, 50 N. Y. 298, 300; In the Matter of Hamilton, 2 Connolly, 268.)

It does not, therefore, appear from the allegations of the petition that the appellant is a person interested in the personal estate of the deceased. But a stipulation appears in the appeal book which we think cures this defect. It was stipulated, That the appellant herein, Merritt E. Bradley, was a party to the proceedings under which letters testamentary were issued, and was named in the citation as one of the next of him, of deceased, but was not named in the said will either as legatee, devisee, executor or otherwise; that he is a/n hei/r at law and next of him, of said deceased.” It thus appears from the stipulation of the parties that the petitioner was a next of kin, and if a next of kin, under the Statute of Distribution he would be entitled to his portion of the personal property of the deceased not disposed of by will.

Section 2516 of the Code of Civil Procedure provides that “ Except in the case where it is otherwise especially prescribed by law, a special proceeding in a Surrogate’s Court must be commenced by the service of a citation issued upon the presentation of a petition. But upon the presentation of the petition the court acquires jurisdiction to do any act which may be done before actual service of citation.”

Section 2517 provides that The presentation of a petition is deemed the commencement of a special proceeding within the meaning of any provision of this act which limits the time for the commencement thereof ; but in order to entitle the petitioner to the benefit of this section, a citation issued upon the presentation of the petition must within sixty days thereafter be served, as prescribed in section 2520 of this act,” etc.

It is claimed that the citation must be served within sixty days after the presentation of the petition. We do not so understand the provision. It must, however, be served within sixty days after the citation is issued by the court. This is made clear by the provision of section 2519. But it is said that the citation issued in this case was not served within sixty days. It is true that the first citation was not properly served at all, and an amended, or supplemental, citation was issued, which was properly served within the statutory time. In The Matter of the Will of Gouraud {supra), the petition was presented but one day before the expiration of the year, but the citation thereon was not issued for over three months thereafter, more than ninety days after the proceedings had been commenced and the surrogate had acquired jurisdiction; and yet it was held that the proceedings were regular.

Code of Civil Procedure, section 2481, provides that “A surrogate in court or out of court, as the case requires, has power:

“ 1. To issue citations to parties in any matter within the jurisdiction of his court, and in a case prescribed by law to compel the attendance of a party.
“ 2. To adjourn from time to time a hearing or other proceeding in his court; and where all persons who are necessary parties have not been cited or notified, and citation or notice has not been waived by appearance or otherwise, it is his duty before proceeding further so to adjourn the same, and to issue a supplemental citation, or require the petitioner to give an additional notice, as may be necessary.”

Here we have express authority giving to the Surrogate’s Court the power to issue a supplemental citation where there has been a ' failure to serve all the parties necessary, or where other persons are necessary parties to the proceeding. Such a citation was issued in this case. It was not necessary that it should be marked supplemental.” The fact that it was issued after and in place of the other made it a supplemental citation, and it was served, or the publication thereof commenced, within the sixty days after it was issued, as required by section 2517. (In the Matter of the Last Will of Phalen, Deceased, 51 Hun, 208; In the Matter of the Will of Liddington, Deceased, 20 N. Y. St. Repr. 610, 615.)

The cases of Pryer v. Clapp (1 Dem. 387); Fountain v. Carter (2 id. 313); and In re Bonnett (1 Connolly, 294), as to the questions herein discussed, must be considered as overruled by the cases referred to.

The decree should be reversed and the proceedings remitted to the Surrogate’s Court of Wyoming county to proceed thereon, the costs to abide the final award of costs.

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

Decree of the Surrogate’s Court of Wyoming county appealed from reversed, and the proceedings remitted to that court to proceed thereon, costs to abide the final award of costs.


source: Caselaw Access Project

author: Barrett, J. :

license: Public Domain

text:
    The People of the State of New York, Respondent, v. William B. Hayes, Appellant.

      Perjury — number of witnesses necessary —conviction of, need not await the trial of the civil action — immoral consideration — mitigation of penalty, not ex post facto — immediate commitment of a witness — intent in the case of a false certificate of acknowledgment — privileged communications between husband and wife.

    On appeal from a judgment convicting the defendant of perjury in making a false affidavit to open a default in a civil action brought against him on a promissory note hy the payee thereof, who was a woman, it was claimed that perjury could notbe predicated upon the defendant’s denial in such affidavit that he ever gave the payee the note in question, for the reason that the fact was immaterial in that the note was founded upon an immoral consideration, namely, the continuance of illicit intercourse between the defendant and the payee.

      Held, that there was an entire absence of evidence that the note was given to secure the continuance of illicit intercourse, and, hence, that the question of materiality need not he considered.
    A promissory note given hy a married man to a woman whom he has seduced under promise of marriage, followed hy the birth of a child, in expiation of the wrong-doing and not in furtherance of it, is not illegal.
    On the trial of an indictment for perjury, the testimony of a single witness is sufficient to prove that the defendant swore as alleged in the indictment (as, e. g., the testimony of a notary public that the defendant swore to an affidavit before him); it is only the falsity of the statement sworn to which must he substantiated hy the oath of two witnesses or of one witness supported by corroborating and independent circumstances equivalent in weight to the testimony of a single witness.

      Semble, that a court Is not deprived of jurisdiction to try an indictment; for perjury, based upon the making of a false affidavit on which the opening of a default in a civil action was obtained, by the fact that the civil action is still pending and undetermined. The question of postponement on that ground is not jurisdictional, but is a question of propriety and rests in the discretion of the trial court.
    The amendment of section 106 of the Penal Code by chapter 662 of the Laws of 1892, striking out the minimum limitation upon the penalty for perjury by changing the penalty from “imprisonment for not less than two nor more than ten years,” to “imprisonment for a term not exceeding ten years,” is in mitigation of the penalty and hence is not in violation of the Constitution, as being ex post facto, as to an offense committed before its enactment.
    Upon the trial of.an indictment for perjury, a witness for the defense admitted, upon cross-examination, that he made a false certificate as a notary public to the effect that the wife of the defendant had appeared before him, and acknowledged the execution of an instrument purporting to have been executed by her; whereas, as matter of fact, she had not appeared before him nor acknowledged the execution of the instrument. At the close of the witness’ testimony, the trial judge directed his committal for the offense thus admitted.

      Held, that the action of the judge was proper and was not open to the objection that it prejudiced the defendant before the jury.
    An intent to defraud is not required to constitute the crime of forgery in the making of a false certificate of acknowledgment by an officer authorized to take the proof or acknowledgment of an instrument which by law may be recorded; all that is required is that he should willfully certify falsely. (Penal Code, § 510.)
    It appeared that the order opening the default in the civil action, granted upon the affidavit the making of which was alleged to constitute the perjury charged, was, by a clerical error, dated at a Special Term held on the 29th day of April, 1889, whereas it should have read 1891.

      Semble, that this error furnished no ground for striking out the entire record in the action.
    The plea of privileged communication will not avail a defendant in a criminal trial to prevent the introduction in evidence against him of letters written to him by his wife, brought into court by a third party to whom he has given them.
    Appeal by the defendant, 'William B. Hayes, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered on the 23d day of February, 1893, upon the verdict of a jury convicting the defendant, of the crime of perjury.

      George M. Gurtis, for the appellant.

      Henry B. B. Stapler, for the respondent.
   Barrett, J. :

The indictment charged the defendant with perjury in the making of a false affidavit, used upon a motion to open a default in a civil action.

The action in which the default occurred was in the Supreme Court in Monroe county. This action was founded upon a promissory note for $2,000, made by the defendant and payable to the order of the plaintiff therein, Annie M. Keating.

In the affidavit charged to be false, the defendant stated that he never gave Annie M. Keating a note, or ever had occasion to give her one; that he had never seen the note for $2,000, upon which her action was based, and knew nothing whatever about it; that, at the time when the note was dated, to wit, October 27, 1887, he was in Florida — the note purporting to have been made in New York— and that he went to Florida the 1st of September, 1887, and did not return -until the 1st of May, .1888.

Upon this affidavit a motion was made to open the default, which motion was granted, and the defendant was permitted to answer.

Evidence was given upon the trial tending to show that the affidavit, in the particulars specified in the indictment, was' false; that, in truth,' the defendant had given the note in question to Annie M. Keating; that he so gave it to her in New York upon the 27th of October, 1887, and that he was in New York and not in Florida upon that date.

The defendant offered evidence tending to sustain his affidavit, but this evidence was weak, contradictory and hopelessly improbable. Upon full consideration of all the evidence, we think the falsity of the affidavit was overwhelmingly established and the verdict of the jury thoroughly justified.

Numerous questions of law are presented by the appellant, but they are for the most part frivolous. "We do not propose to notice in detail the enormous mass of pointless exceptions which were taken to rulings upon evidence during this lengthy trial. The exceptions were in the main without merit, and in no instance was the defendant prejudiced, by the rulings of the learned court.

There are some questions, however, which should be considered:

(1) It is claimed that perjury could not be predicated of the' ’ defendant’s denial that he ever gave Miss Keating the note in question, for the reason that the fact was immaterial in that the note was void as founded upon an immoral consideration. We need not consider the question of materiality in view of the entire absence of evidence to sustain the premise. There was not a particle of evidehce that the note was given to secure the continuance of illicit intercourse. Miss Keating testified that in the year 1884 the defendant asked her to marry him and gave her an engagement ring. She had no knowledge at this time that he was a married man. Thereafter, and while she was still in ignorance of his marital status, illicit relations commenced between them, which continued for some years, and resulted in the birth of a boy child on the 11th of April, 1887. Before the .birth of this child Mrs. Hayes learned of her husband’s infidelity, and she had, in fact, become acquainted with the whole situation. Being herself childless, she desired to obtain possession of the boy. She says that the consideration of the note was Miss Keating’s promise to let her have the child, and that upon the latter’s refusal the note was returned. Miss Keating, on the other hand, says that the consideration was the settlement of a suit which she had threatened to bring against the defendant. Neither of these witnesses intimates that there was an immoral consideration. The effect of Mrs. Hayes’ testimony is, in substance, that the note was not really delivered. That of Miss Keating suggests a release of her right of action for breach of promise. The appellant contends that Miss Keating’s threat to consult a lawyer and commence a suit against him was an act of blackmail; but this contention ignores, first, the original promise of marriage, and, second, the fact that she was the mother of his child. The woman was not an adventuress, seeldng by falsehood and baseless threats to extort money from an innocent man. It was proper, under the circumstances, that he should provide for her.

The law condemns contracts in furtherance of immorality, but not those made in expiation of wrong-doing. This general principle is well settled. Thus it was held in Bunn v. Winthrop (1 Johns. Ch. 329), that past seduction is a valid consideration for a covenant for pecuniary reparation and support of the offspring. In Todd v. Weber (95 N. Y. 190), it was held that there was nothing illegal in an undertaking by a putative father to pay a sum of money to another in consideration of the support of his illegitimate child, though that other was the mother of the child. The same rule was laid down in Jennings v. Brown (9 M. & W. 496). In Jackson v. Finney (33 Ga. 512), a note given by the father of an illegitimate child for its support was held to be good as being a meritorious consideration. So also as to a note given by a seducer to the parent of the girl seduced. (Cutter v. Collins, 12 Cush. 233; Harter v. Johnson, 16 Ind. 271; Merritt v. Flemming, 42 Ala. 234.) In England, agreements in consideration of past cohabitation are enforced (Gray v. Mathias, 5 Ves. 286; Gibson v. Dickie, 3 M. & S. 463), though the cases are not uniform as to the necessity for a seal. (Beaumont v. Reeve, 8 Q. B. 483; Benyon v. Nettlefold, 3 Mac. & G. 94, 100; Kyne v. Moore, 1 Sim. & St. 64; Walker v. Perkins, 3 Burr, 1568; Smyth, v. Griffin, 13 Sim. 245; Simpson v. Lord Howden, 3 My. & Cr. 97, 102; Ayerst v. Jenkins, L. B. [16 Eq.] 275, 282; Batty v. Chester, 5 Beav. 103, 109.)

Even where the illicit connection is resumed and is never broken off, the court will not presume from that fact alone that the real consideration was future as well as past, nor, therefore, treat the deed as invalid. (Gray v. Mathias, supra; Hall v. Palmer, 3 Hare’s, 532; Vallance v. Blagden, 26 Ch. D. 353.)

The ground upon which the declaration was held to be good in Gibson v. Dickie {supra), was that the agreement “ was a voluntary compensation by way of maintenance, made to the plaintiff for the injury done her by their past illicit connection; * * * and that so far from it being an inducement to her to continue the cohabitation, it was rather an inducement to separate.”

The point that the note if given was not enforcible is, therefore, not well taken.

(2) The next contention is that the testimony of the notary, Townsend, was insufficient to prove that the defendant actually swore to the affidavit before him. It is true that this witness made contradictory statements upon the subject, but these contradictions were satisfactorily explained. A careful perusal of his entire testimony convinces us that he was truthful, and that the defendant did in fact personally appear before him and swear to the affidavit. This at all events was a proper question for the jury, and it was fairly presented to them by the learned court. Nor was it necessary that the notary should be corroborated. The testimony of a single witness is sufficient to prove that the defendant swore as alleged in the indictment. (See cases cited in 18 Am. & Eng. Ency. of Law, 324, note 1.) It is only the falsity of the statement sworn to which must be substantiated by the oath of two witnesses, or of one witness supported by corroborating and independent circumstances, equivalent in weight to the testimony of a single witness, (Ibid. 323.) ’

(3) There was ample corroboration of Miss Keating within the rule just stated. She was corroborated, not only by the documents generally, but by a special feature of the note itself. The body of this note was concededly in the handwriting of Mrs. Hayes, but she omitted to write the word “ date ” in the appropriate place. Miss Keating testified that this word was written by the defendant himself on the occasion when the note was delivered to her. In this she was corroborated by the testimony of two experts in handwriting, who testified that, in their opinion, based upon considerations which were detailed, the word “ date ” was written by the same person who wrote the signature to the instrument. And the signature “ W. B. Hayes,” was admittedly in the handwriting of the defendant. Three other witnesses also corroborated Miss Keating as to _ the defendant’s presence in the city of New York at or about the time when she says he gave her the note. One, a physician who attended him for an injury to his foot. Another, a person who resided in the same house with him, and who identified him both personally and with regard to the injured foot. The third, a servant in the defendant’s family. This testimony not only corroborated Miss Keating upon the affirmative case, but negatived the weak and unsatisfactory testimony with which the defendant attempted to prove an alibi.

(4) The point is made that the Court of General Sessions had no jurisdiction to try the indictment, for the reason that the civil action is still pending and undetermined. There is nothing in this point; The court certainly had jurisdiction to try the indictment, even if it would have been better to defer such trial until after the conclusion of the civil action. It was not a question of jurisdiction, but of propriety. Moreover, this question was not properly raised below. The defendant did not ask to defer the trial. He proceeded without objection, and without even informing .the court of the continued pendency of the civil action. And further, he neither moved to dismiss the indictment upon this ground, nor for an acquittal when the prosecution rested, nor in arrest of judgment, nor for a new trial. The only reference we find to this point in the record is its occasional presentation, seemingly in a most inconsequential way, as an objection to the admission of competent evidence, and a request at the conclusion of the learned judge’s charge that he further instruct the jury that they must acquit, because under the law “ the court in such a case has no jurisdiction.”

The practice in England is to postpone the trial for perjury until the cause out of which it arises is determined. (Wharton Crim. Law [7th ed.], § 2280 ; Rex v. Simmonds, 1 Carr. & Payne, 84.) In Pennsylvania the rule seems to be that a prosecution for perjury, alleged to have been committed in an affidavit of defense, will not be entertained until after final judgment in the case in which the affidavit is made. (The Commonwealth v. Dickinson, 3 Penn. Law Journal Report, 163.) In the case cited, however, the affidavit of defense was in the nature of a direct answer in the action. It was not, as here, an affidavit used collaterally upon a motion in the cause — a motion, too, which has. been finally disposed of. . There, too, the question was brought directly before the court on an application upon habeas corpus to discharge the defendant. All this was before indictment, and while the defendant was subject only to an alderman’s preliminary warrant. And although the defendant was released from the custody of his bail and discharged, there is not a suggestion that an indictment — if the prosecution had proceeded so far — would have been quashed. On the contrary, the court referred to the English rule with approval, and declared that the practice in Pennsylvania was not to suffer am i/ndAetment for perjury to he tried until the proceeding in which it was alleged the offense had been committed had been determined.

We think the English rule is a reasonable one, and that the question of postponement should be left to the sound discretion of the court. The indictment here was good. It could not have been successfully demurred to. And the question of the defendant’s guilt or innocence, upon the trial, to which he submitted without objection, was not affected by tbe incident of tbe pendency of the civil action.

That is a complete answer to the only point which on this head is now presented, or which was presented below. If the defendant desired to await the termination of the civil action, he should have made a proper application to that effect before entering upon the trial of the indictment.

(5) The perjury was committed prior to the passage of chapter 662 of the Laws of 1892, amending section 106 of the Penal Code. This amendment changed the penalty previously prescribed for this offense by abolishing the minimum limitation. Prior to the amendment, the penalty read as follows : By imprisonment for not less than two nor more than ten years.” Now it reads: By imprisonment for a term not exceeding ten years.”

It is contended that this amendment, as applicable to perjury committed prior to its enactment, was ex post facto.

An ex post facto law was defined by Chief Justice Marshall to be one which rendered an act punishable in a manner in which it was not punishable when it was committed. (Fletcher v. Peck, 6 Cranch, 87-138). If, however, the punishment be increased, though the manner of punishment be the same, the law is ex post facto. (Shepherd v. The People, 25 N. Y. 415.) A law which retains the manner of punishment, but simply reduces its extent is not ex post facto as to offenses committed before its passage. (Commonwealth v. Wyman, 12 Cush. 237; State v. Arlin, 39 N. H. 179, 180.) This doctrine has been repeatedly asserted in this State. In Shepherd v. The People (supra), Sutherland, J., said that “A law, the effect of which is simply to reduce or diminish the punishment with which an act was punishable when committed, cannot be an ex post facto law, because it inflicts no new or additional punishment.” So, in Hartung v. The People (22 N. Y. 105), Denio, J., observed that, in his opinion, it would be perfectly competent for the Legislature, by a general law, to remit any separable portion of the prescribed penalty. Eor instance, if the punishment were fine and imprisonment, a law which should dispense with either the fine or the imprisonment might, I think, be lawfully applied to existing offenses, and so, in my opinion, the term of imprisonment might be reduced, or the number of stripes diminished, in cases punishable in that manner. Anything which, if applied to an individual sentence, would fairly fall within the idea of a remission of a part of the sentence, would not be liable to objection.”

And again, on a subsequent appeal in the same case (26 N. Y. 169), the same learned judge stated that the act previously under consideration “was considered to be ex post faeto because it attempted to change the punishment which the law had attached to the offense of the prisoner when it was committed, not by remitbrng some divisible portion of it, but by altering its kind and character.”

This doctrine applies with equal force to an act which simply vests in the courts authority to impose a less penalty than even the existing minimum.

"What was said in Dolan v. Thomas (94 Mass. [12 Allen] 421), is entirely applicable to the act under consideration: “ The effect of the statute was merely to vest in the court a discretion by the exercise of which they were authorized to mitigate the sentence to which an offender was liable by dispensing with a portion of the prescribed punishment. The extent of the repeal of previous statutes is then only this, that, in a certain class of cases, instead of a fixed and inflexible rule of punishment, which could not be modified or varied, the court has authority to substitute a milder sentence. Clearly, such a statute is not a violation of any right or privilege of an accused party nor does it render the class of offenses to which it relates, and which were committed prior to its enactment, dispunishable. It does not inflict any greater punishment than was before described: it is not, therefore, ex post facto; it only authorizes a mitigation of a penalty ; it is, therefore, an act of clemency, which violates no right, but grants a privilege to a convicted party.”

(6) A witness for the defense, Noah, admitted upon cross-examination that he made a false certificate as a notary public to the effect that Mrs. Hayes had appeared before him and acknowledged the execution of an instrument purporting to have been executed by her. As matter of fact, Mrs. Hayes had not appeared before him nor acknowledged the execution of the instrument. At the close of his testimony the learned judge directed his committal for the offense thus admitted. The appellant claims that by this action of the court he was prejudiced before the jury.

It was not the action of the court which affected the credibility of the witness, but his own confession in the presence of the jury that he had committed a peculiarly dangerous crime. If such conduct as the witness acknowledged were to pass without instant condemnation, it would have a most pernicious effect. Titles to real estate, the genuineness of conveyances, the security of mortgages, all depend upon the strict fidelity with which public officers, intrusted by law with the duty of talcing acknowledgments, perform their functions. No judge with a proper sense of what he owes to the public should sit supinely by and permit such a confession to be made as though it was a matter of no moment or of every-day occurrence. There was, under the circumstances, but one proper course to pursue, and that was -to indicate the exceptionable character of the offense by directing the witness’ immediate prosecution. That was better than mere words of rebuke; still better than to permit the guilty officer to leave the court room unchecked and unrebuked. The latter course would have been unworthy of the occasion and would have evinced reprehensible indifference to a matter of great public concern. ' '

It is contended that what Noah confessed did not amount to a crime, because he had no intent to defraud. But the statute does not require an intent to defraud to constitute the crime of forgery in making a false certificate with regard to an acknowledgment. Ordinarily, this intent is required’ to constitute forgery, but in the case of officers authorized to take the proof or acknowledgment of an instrument which by law may be recorded, all that is required is that he should willfully certify falsely. (Penal Code, § 510.)

The committal of this witness was what the jury must have expected as the fitting sequence to his confession of crime. And it could have had no other effect upon them than a wholesome one. The injury to the defendant, if any, was in the fact confessed, not in the treatment which the confession necessitated.

(T) The order opening the default was dated at a Special Term held on the 29th day of April, 1889. The year “ 1889 ” was a clerical error. It should have read “ 1891.” The point is made that the entire record should have been stricken out because of this error. But clearly the order in question was that which was actually made on the decision of the motion. It was brought from the files with the affidavit and notice of motion. The real fact is apparent. But the order was not essential to the prosecution. The affidavit which was used on the motion was produced from the files, and that was the essential thing. The perjury would have been the same if the decision had been the other way or if there had been no decision. The affidavit was used to affect the decision, and that was sufficient.

(8) Certain letters written by Mrs. Hayes to the defendant were offered in evidence by the prosecution on the cross-examination of Mrs. Hayes. They were objected to by the defendant on the ground that they were privileged communications. These letters were not produced by Mrs. Hayes as evidence against her husband. They were given by the defendant to his mistress before the trial, and were placed in the hands of the district attorney. They thus came into the possession of a third party by the defendant’s shameless disregard of marital confidence. He opened the door and exposed the expression of this confidence. He cannot now close the door. It is said by Wharton (§ 767), that the privilege is personal to the parties; a third person who happened to overhear a confidential conversation between husband and wife may be examined as to such conversation. ,.A letter, also, written confidentially by husband to wife is admissible against the husband’ when brought into court by a third party. (See, also, State v. Hoyt, 47 Conn. 518; State v. Buffington, 20 Kan. 599.)

We have thus endeavored to cover the principal points made’by the appellant in the elaborate brief of 115 pages which was submitted to us. There are in this brief many other points, but they are trivial, and we do not deem them worthy of special consideration. The charge of the learned judge was eminently fair, and the exceptions thereto are without merit.

Upon the whole, we thint the defendant had a fair trial, that he was justly convicted, and that no errors were committed to his prejudice.

The judgment should, therefore, be affirmed.

Van Brunt, P. L, and Eollett, J., concurred.

Judgment affirmed.


author: Barrett, J.:

text:
    In the Matter of the Probate of the Last Will and Testament of Mary A. Edson, Deceased; Marmont B. Edson, Contestant, Appellant; John E. Parsons and Others, Proponents, Respondents.

      Legacy to the attorney who drew the will — undue influence.

    The mere fact that the attorney who drew a will is named as one of the executors, to whom individually the testator’s residuary estate is thereby bequeathed, is insufficient to create a presumption against the validity of the legacy, on the ground of undue influence; it is at most a suspicious circumstance, the effect of which may be dissipated and deprived of weight by the facts surrounding the case.
    Appeal by the contestant, Marmont B. Edson, from a decree of the surrogate of the county of New York, made and entered on the 14th day of January, 1891, admitting to probate the instruments propounded as the last will and. testament of Mary A. Edson, deceased, and codicils thereto.

      W. F. Ped&rick, Treadwell Cleveland and Joseph H. Choate, for the appellant.

      Pa/oid B. Ogden, for the respondents.
   Barrett, J.:

The appellant makes no claim with regard to the formalities attending the execution of the will in question. Nor is it contended that at the time of its execution the testatrix was of unsound mind. The sole question presented by this appeal is whether there was undue influence. The appellant concedes that there was no actual fraud, but he insists that the facts surrounding the preparation and execution of the will raise a presumption of undue influence. The fact mainly relied upon is that Mr. Parsons, the attorney who drew the will, is himself a legatee thei’eunder. It is not contended that this fact of itself raises a presumption of undue influence ; nor could it be successfully contended. (Post v. Mason, 91 N. Y. 539.) The claim is that, coupling all the other facts with this central fact, the presumption .is made out. This requires an examination of all the facts.

A previous will was made in the year 1881. It also was drawn by Mr. Parsons. By this previous will Miss Edson gave to her sister Susan three equal fourth parts of her estate, together with the remainder of the other one-fourth part after the payment therefrom of certain legacies. It also provided that if she should survive her sister, the residue of her estate, after' the payment of a number of legacies, should go to her brother, Marmont B. Edson. Simultaneously with the execution of this will Miss Susan Edson made a similar will, giving the testatrix three-fourths of her estate, and also the remaining one-fourth after the payment of certain legacies. Miss Susan Edson died in June, 1885 ; her will was duly admitted to probate, and letters testamentary thereon were issued to Mr. Parsons and the testatrix. Mr. Parsons thereafter occasionally advised the testatrix about her business affairs and attended to her investments. No change was made in Miss Mary Edson’s will until the 2d of May, 1890, when the will now contested was executed. Mr. Parsons drew this will. He was called in and had his first consultation with regard to it on the 12th day of April, 1890. Miss Edson was then ill, and remained ill until the twenty-ninth of the following month, when she died. By this last will Mr. Parsons, Mr. John A. Bartow and Mr. Charles S. Eairchildwere appointed executors, and numerous legacies were given. Miss Edson then gave one-third of the residue of her estate to these executors in trust for the use and benefit of her brother Marmont for fife, with power to him to appoint by will who should take the principal of such one-third upon his death. The remainder of her estate she gave as follows:

“ All the rest, residue and remainder of my estate I give and bequeath to my executors, to be divided by them among such incorporated religious, benevolent and charitable societies of the city of New York, and in such amounts as shall be appointed by them with the approval of my friend, the Rev. Dr. William R. Huntington, if living.
“ If for any reason any legacy or legacies left by this my will, either pecuniary or residuary, shall lapse or fail, I give and bequeath the amount thereof absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no condition, leaving the same to them personally and absolutely, and without any limitation or restriction.”

It is this last provision which is attacked by Mr. Marmont B. Edson, and which has led to the present contest.

After the execution of this will Miss Edson executed three codicils, varying the legacies, but otherwise reaffirming the provisions of the will; and in the second codicil, executed two days before her death, she repeats and reaffirms the above-quoted provision. And this second codicil is likewise attacked.

We have carefully considered all the evidence which was adduced before the learned surrogate, and we fail to find any circumstance bearing upon the central.fact of the legacy to the three executors as individuals which raises a presumption of undue influence. On the contrary, the evidence is all the other way and tends to dissipate even a suspicion of undue influence. It is true that Mr. Parsons was Miss Edson’s legal adviser and personal friend, but it is not true that she implicitly followed his advice. Miss Edson was possessed of a strong will. She was quite firm in following the bent of her own mind and judgment; and she was not readily influenced. She sometimes rejected loans that Mr. Parsons' had approved of and recommended to her. At one time he advised her to sign an agreement for the consolidation of the Edison Electric Light Company, in which she was interested as a stockholder, with three manufacturing companies. She did so, but subsequently insisted, against his judgment, upon the withdrawal of her name. She insisted upon remaining in the city and taking charge of her own affairs at times when he thought she would be better away, leaving her troubles to him. Upon another occasion he expressed a very decided opinion to both of the Misses Edson against their holding Electric Company’s stock, but was “ given to understand that they would do as they chose to.” This unwillingness io accept advice cost them considerable money, and the testatrix subsequently admitted to Mr. Parsons that if she had acted in accordance with the opinions ” which he had expressed, she and her sister would have been saved much loss.”

Even when Miss Edson was upon her death-bed this strength of will was marked. When a change of medical treatment was suggested, she said something to the effect that she was satisfied with the treatment and that is all there is about it.” When, subsequently, the matter was pressed, she declined to change the treatment— that is, the school of medicine — though willing to change the practitioner. Her letter on the subject indicates the correctness of a remark made by Mr. Parsons to Mr. Marmont Edson — when the latter requested him to speak to Miss Edson about a change of treatment — to the effect that “ his sister would not permit anybody to volunteer suggestions or advice about her affairs,” and it also illustrates the force of Mr. Edson’s reply that “ he had not the courage to make such suggestion to his sister.” That letter is underlined in many places and it speaks emphatically of the patient’s will. I shall he able,” she says, to be rid of Dr. Thompson, and have a new doctor, but by no means to change practice. * * * I will to-day study c the papers ’ and try to have them ready for you when you are ready for them. * * * I feel it is best to choose as I home in my case. No more Dr. Thompson, hut a new doctor, and, in my case, no Allopathic treatment.”

Other illustrations might be given, hut they are unnecessary. The whole matter was well summed up by Dr. Peterson when he testified that “ she had a will of her own and did just as she wanted to.”

This is not the case, therefore, of a confidential adviser imposing his will upon a mind naturally weak, or upon a strong mind enfeebled by age or sickness. Miss Edson’s mind was clear and her will was strong until the end. And Mr. Parsons’ relations with her were never of an especially close, constant or confidential character. There had, in fact, been no occasion for such relations. He had had little or no law business to transact for her. The legal work attendant upon her investments had been performed by others under his general direction. He had given advice which sometimes was followed and sometimes was not. He' undoubtedly had her respect’ and esteem; her confidence, also, as a lawyer of integrity and good judgment. But there was nothing whatever in their relations to justify the presumption of any special influence.

Coming down to the actual facts with regard to the preparation of the will, we find none of the indicia of undue influence. The testatrix was not secluded, nor was she surrounded by Mr. Parsons’ adherents. She was perfectly free to see. and advise with whom she pleased. Mr. Parsons came when he was requested to come, and even then was not an especially frequent visitor.

Nor was there any haste or secrecy about the execution of the instrument. After consultation and instructions, a typewritten draft was sent to Miss Edson, and she, in her own handwriting, altered the provision for her brother Marmont, from one-half of the residue to one-third. The execution of the will and codicils was deliberate and attended with all proper precautions. The testimony on this head is clear and conclusive. When the contestant desired information with regard to the will it was readily afforded him. He met Mr. Parsons at Miss Edson’s bedside two days before she died, and then and there the will was read to him. This meeting was at Mr. Parsons’ own suggestion. Miss Edson produced a copy of the will from a bundle of papers that she kept under her pillow, and then Mr. Parsons read it, pausing ” (we quote from the testimony) at each paragraph, or at each provision, in the progress of the reading, there being conversation between the brother and the sister, and as to this or that provision, she asking whether he had anything to say, or was that right or something of that kind, and so the reading was completed.”

This interview lasted for an hour or two, and it affords evidence, not only of the openness of the transaction, but of Miss Edson’s clearness of mind and strength of purpose down to within two days of her death.

That this interview aroused no suspicion of undue influence in Mr. Edson’s mind is apparent from what followed. Later, upon the same day, he told Mr. Parsons that it would be very gratifying if his sister would give some legacy to his son, Jarvis.

I told him,” said Mr. Parsons in reply, that I could not make to her any suggestion about this testamentary provision ; that I had limited myself to answering the questions which she put to me and that I should continue to do so ; that, as he very well knew, 'she was not the sort of person whom cmy one would be Ulcely to venture to make suggestions to, and he suggested himself, I think at that interview, if not at that interview at the only other interview that I ever had with him, that they, referring to the members of his family, had found fault with him that he had not influenced his sister, and that he had responded to them that they Tmew perfectly well that his sister was not a person whom a/ny one could i/nfl/wence.”

It should be observed that Mr. Edson was not examined as a witness in the Surrogate’s Court, and that the testimony of Mr. Parsons stands entirely uncontradicted.

Mr. Parsons, however, promised that he would repeat to Miss Edson what he, Marmont Edson, had just said about his son Jarvis. And the result was that upon the same evening Miss Edson executed the third codicil, in which she gave a legacy of $20,000 to Jarvis Edson.

We think that, upon all the evidence, the learned surrogate was fully justified in the statement that the contestant’s case absolutely and totally fails.” There is really nothing left of it save the mere fact that Mr. Parsons was one of the three executors to whom individually the residuary estate was bequeathed, and that, under well-settled rules, was insufficient to create a presumption against the validity of the legacy. (In the Matter of Smith, 95 N. Y. 522; Loder v. Whelpley, 111 id. 250; Parfitt v. Lawless, L. R. [2 Prob. & Div.] 462.)

It was at most a suspicious circumstance. Such a circumstance “ is,” as was said by Baron Parke in Barry v. Butlin (1 Curteis’ Ecc. 637), of more or less weight according to the facts of each particular case; in some of no weight at all.”

Under the surroundings of this case it was a circumstance of but little weight. If it aroused a suspicion at all, that suspicion was completely dissipated when all the facts were placed before the court.

The decree of the surrogate should be affirmed, with costs.

Tan Brunt, P. J.,. and Eollett, J., concurred.

Decree affirmed, with costs.


text:
    Simon Klaber and James Klaber, Respondents, v. William Taylor, Carlton S. Gilson and James Armstrong as Executors, etc., of John Taylor, Deceased, Appellants.

      Pund held as security against claims — equitable assignment thereof.

    , The person eventually entitled to the balance of a fund held by executors, as security for the payment of such claims against their testator’s estate growing out of a certain transaction as they might be compelled to pay, signed and delivered to the executors a paper directing them to compromise, settle and pay, for an amount arbitrarily fixed, a claim made against the estate by a third party, which was disputed by the executors. This paper was not delivered to the third party, nor was it issued with his knowledge, and no agreement or understanding on the subject was had with him; it was retained by the executors, who never tried to settle the claim.

      Held, that this did not work an equitable assignment of part of the fund or entitle the third party to maintain an action against the executors for a specific part of the fund.
    Appeal by the defendants, "William Taylor, Carlton S. Gilson and James Armstrong, as executors, etc., of John Taylor, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the city and county of New York on the 12th day of December, 1892, upon a verdict 'rendered by direction of the court at the New York Circuit.

      Hamilton Odell, for the appellants.

      Morris 8. Wise, for the respondents.
   Barrett, J.:

The defendants are the executors of John Taylor, deceased. Mr. Taylor in his lifetime held mortgages to a large amount upon an apartment house named “ the Osborne,” which was built by one Thomas Osborne. The plaintiffs furnished certain marble work to be used in this building, for which there is still due them $1,000. Upon Taylor’s death, an agreement was entered into between his executors, these defendants, and Mr. and Mrs. Osborne for a settlement of all questions with regard to Taylor’s mortgages. The material part of this agreement, as bearing upon the present action, is that between the defendants and Mrs. Osborne. It recites that Mrs. Osborne claims to have advanced to her husband out of her separate estate the sum of $30,000 “ toward the erection of said Osborne1 apartment house.”

For considerations not necessary to be detailed, the defendants agree to pay Mrs. Osborne $5,000 upon the signing of the agreement, and to hold $25,000 for her benefit, subject to certain terms and conditions. These terms and conditions are substantially as follows : Claims having been made against Taylor’s estate, growing out of the building in question, which were to be defended, the executors were to hold this $25,000 as their security against such claims. In case of defeat the executors were to pay themselves out of the sum so withheld, but in case of success they were to pay Mrs. Osborne the proportionate part of the sum thus released. The agreement then provides as follows :

“ This mode of procedure is to be continued by the executors until the whole amount of such claims shall have been paid or are finally disposed of, or until the whole of said balance shall have been exhausted, either by payment of claims or payment to said Susannah Osborne; when exhausted in either way, the executors are to be and are hereby released from any further liability or payment on account hereof.”

It appears that the plaintiffs’ claim already referred to was included in the list specified in the agreement, and was, consequently, one of those as security for which the defendants were to hold the $25,000.

The plaintiffs never proceeded against the defendants upon this claim. They charged the marble work to Mr. Osborne upon their books and subsequently brought an action against him for the amount so due them, in which'they recovered judgment on the 5th of March, 1890. Nor is the present action brought to recover upon the claim referred to in the agreement, but to recover a specific part of the $25,000 held by the defendants as security for that claim. The facts upon which the latter contention is based are briefly these: A little over a year after the agreement was made Mrs. Osborne signed a paper in which she authorized and directed the defendants, out of the moneys remaining in their hands under the agreement, to compromise, settle with and pay it, Klaber & Son, in full settlement of their claim, not to exceed the sum of $939.”

This paper was received by the defendants and retainéd by them. But they never acted upon it further than that the defendant Gil-son, as executor, drew a check for the amount, payable to the order of the defendant Armstrong, who never used it. The defendants in fact never tried to compromise or settle ” with Klaber & Son, and the latter knew nothing of what Mrs. Osborne had done, and never heard of the order, check or transaction, until long afterwards.

We can scarcely treat as serious the contention that, upon these facts, there was an equitable assignment of part of the sum reserved by the defendants. The moneys were not held by the defendants, for the payment of the plaintiffs’ claim, or for the payment of any claim, but as security for the payment by them of such claims as should be established against them under the agreement. Mrs. Osborne had no more right to require the defendants to compromise and settle the plaintiffs’ claim than she had to compel the plaintiffs to accept less than their due. The plaintiffs had no possible claim against her, and, consequently, there was no basis for an appropriation to pay a debt of hers. But even if she chose to appropriate her own money to the payment of her husband’s debts, she could only do so when she became entitled to the fund, by virtue of its release from the claims against the defendants as specified in the agreement. She could not secure such release by forcing the defendants to pay $939 upon a claim which, as against them, they believed to be wholly unjust. Mrs. Osborne, therefore, had no fund in the defendants’ hands which she could presently appropriate, and, consequently, the order effected no such appropriation. It simply amounted to an expression of her wish that the defendants should concede their liability to the extent suggested, and induce the plaintiffs to look at it in the same way. And, further, there was no delivery of the instrument to the proposed assignee, no agreement or understanding on the subject, and no knowledge even on the part of such assignee that the instrument had been executed.

A suggestion is made that the defendants may be liable upon the doctrine enunciated in Lawrence v. Fox (20 N. Y. 268). This celebrated case has been invoked in support of many vagaries, but none quite so far fetched as this. Mrs. Osborne assumes to direct the defendants to settle a claim against themselves, made by a third person (which claim they dispute), for an amount which she arbitrarily fixes, and to pay the sum, in case the third person is willing to .accept it, out of moneys which they hold for their own security.

There is surely no possible analogy between this and a promise made by the defendants to Mrs. Osborne upon a valuable consideration for the benefit of the plaintiffs.

There is one other fact which should be mentioned. It appears that on an examination in supplementary proceedings in another case, Mr. Armstrong submitted an account in which Mrs. Osborne was charged with the amount of the check for $939 as paid to Haber & Son in settlement of the claim. This charge was a plain mistake. The fact was that the check was not delivered or used, and the amount was not paid in settlement or otherwise. The entry was simply an inaccurate statement made by an oversight to a stranger to the present suit a statement which misled no one, and of which neither Mrs. Osborne nor Haber was aware. Such a statement certainly created no estoppel, nor did it in anywise affect the real facts of the case.

The conclusion is inevitable, from all the facts, that this action is without merit, and that the complaint should have been dismissed.

The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellants to abide the event.

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

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


text:
    Elizabeth Grafton, Appellant, v. William T. Brigham and Others, Respondents.

      Landloi'd and tenant — action for rent, against an assignee of the lease — conclusiveness of a judgment rendered in summary proceedings — taxes.

    A defect in the service of the precept in a summary proceeding to dispossess a tenant for non-payment of rent may be cured, and jurisdiction of the person conferred upon the magistrate, by the general appearance of the tenant, by attorney, upon the return day.
    A judgment recovered in a summary proceeding to dispossess a tenant, in which the landlord’s petition and affidavit alleged the original lease, the assignment thereof to the defendant, his entry and attornment thereunder, the amount of rent due and the holding over without permission after default, and in which the defendant appeared on the return of the precept and made no objection and interposed no defense upon the merits, is conclusive, in an action subsequently brought by the landlord against the defendant for rent, upon the defendant’s liability as an assignee of the lease in possession, and will preclude him from showing, as a defense, that there was at the time covered by said judgment no longer any privity of estate between him and the plaintiff, because he had then assigned the lease and vacated the demised premises.
    When the liability of a tenant as assignee of a lease is thus conclusively established, the liability extends to all covenants under the lease which run with the land, and where the obligation to pay taxes, as well as rent, rested upon the original lessee, the assignee of the lease will be liable for such taxes to the lessor.
    Appeal by the plaintiff, Elizabeth Grafton, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the city and county of New York on the 24th day of February, 1893, upon a verdict rendered by direction of the court at the New York Circuit.

      James A. O’ Gorman, for the appellant.

      Henry L. Sprague, for the respondents.
   Barrett, J.:

This action was for rent against the assignees of the original tenant. The complaint sets out the lease and the assignment thereof to the defendants “subject to the covenants therein contained.” It is then averred as follows:

“That thereupon and thereunder the defendants entered into occupation and possession of said premises under the terms and conditions of said agreement, and did attorn to, pay rent under and as provided by said agreement for the premises aforesaid to this plaintiff as their landlord.”

The defendants admitted the facts thus averred, and their sole defense was, that before the rent here claimed became due, they in their turn assigned the lease to one Chapin and vacated the premises, Chapin thereupon entering into possession and attorning to the plaintiff.

Hpon the trial the defendants gave evidence tending to establish the facts thus affirmatively pleaded, and the plaintiff, in rebuttal, put in evidence the judgment of a District Court dispossessing these defendants for tlie non-payment of the rent, for the recovery of which the present action was brought. The defendants objected to this judgment, claiming, first, that it was void for want of jurisdiction, and, second, that it was not res ad/jxidicata as to the relation of landlord and tenant or as to their liability as assignees.

The first objection was based upon an irregularity in the service of the precept in the summary proceeding. It must be conceded that the precept was not served according to law, but the irregularity in that respect was cured. The record shows that the tenants appeared generally upon the return day, and that the justice thereupon wrote upon the back of the precept, “Answer to be filed by 11 a. m. If not filed, judgment to be signed; if filed, to be adjourned to 13th.” The city marshal who had charge of the proceedings also testified that there was an attorney who appeared for the tenants. There was thus a waiver of any defect in the service of process, and jurisdiction to proceed was conferred upon the justice. A magistrate in these proceedings can acquire jurisdiction of the person by consent though not, of course, of the subject-matter. (McCarthy v. Noble, 5 N. Y. Leg. Obs. 380; Campbell v. Mallory, 22 How. Pr. 189; and see Sims v. Humphrey, 4 Den. 185; Nemetty v. Naylor, 100 N. Y. 569.)

No attempt was here made to dispute this appearance or to show that it was unauthorized. The judgment was, therefore, jurisdictionally valid.

The other point is equally untenable. It was distinctly held in Brown v. The Mayor (66 N. Y. 385), that a judgment taken by default in these summary proceedings, until reversed, set aside or vacated, is conclusive (in an action by the landlord against the tenant to recover the rent) of the facts alleged in the affidavit and which are required by the statute to be alleged as the basis of the proceedings. In the proceedings under consideration the essential facts alleged in the landlord’s petition and affidavit were the original lease, the assignment thereof. to the defendants, their entry and attornment thereunder, the amount of rent due and the holding over without permission after default. As to all these facts (except the amount of rent 'due) the judgment was conclusive. Even as to the amount due, Brown v. The Mayor, would seem to be in point. It was held, however, in Jarvis v. Driggs (69 N. Y. 147), that this particular question was not decided in Brown v. The Mayor, and that the tenant was not concluded by the landlord’s affidavit as to the amount of rent. It is said in the latter case that the amount of rent is non-essential, as the landlord is entitled to a warrant if any rent whatever is due, and the tenant holds over without permission after demand. The reason of the distinction is not apparent, as the landlord must fail unless he establishes a demand for the amount due as averred. This is as essential to obtain judgment of dispossession as the existence of the tenancy or other jurisdictional facts.

Be that as it may, however, the judgment is clearly binding upon the question of the defendants’ liability as assignees in possession. In other words, upon every fact alleged in the landlord’s affidavit except as to the amount of rent. The general doctrine enunciated in Brown v. The Mayor, is not' questioned in Jarvis v. Driggs, and it has since been reaffirmed in many cases (Leavitt v. Wolcott, 95 N. Y. 222; Blair v. Bartlett, 15 id. 153; Nemetty v. Naylor, 100 id. 570).

The judgment under consideration certainly depended upon the original lease, the assignment thereof to the defendants, and the fact that they held over and continued i/npossession of the demised premises without the permission of the landlord. As to these facts they are estopped from questioning the judgment, and such facts are conclusive in favor of the plaintiffs right to recover the rent reserved in the lease prior to the dispossession. The defendants had an opportunity of showing before the justice that they were not assignees in possession, that in fact they had assigned the lease and vacated the premises, and that their assignees were in possession, but they did not choose to avail themselves of this defense. As was said in Brown v. The Mayor, they were “ informed of the claim made ” against them and they were “ called upon to contest it.” They could have absented themselves if they desired to question the service of the precept. Or they could have appeared and objected to such service. But they did neither. They simply appeared, without mating any objection or interposing any defense upon the merits. Under such- circumstances the judgment is conclusive upon their liability as assignees in possession. Being 'so concluded, they are liable on all covenants that run with the land. Thus, they are liable for the taxes as well as for the rent proper, for such was the obligation of the original lessee. (Taylor’s Landl. & Ten. § 437.)

It was not necessary to put the original lease in evidence, as it was admitted by the pleadings. The assignment to, and attornment by, the defendants were also admitted. That being so, the unpaid rent and taxes wereprvma facie due and payable by the defendants,' and the plaintiff was not called upon to furnish any other proof upon that head. To absolve themselves from tbe liability arising upon this state of facts, tbe defendants were bound to show that at the time when tbe rent and taxes became due, under tbe terms of tbe lease, there was no longer any privity of estate between themselves and tbe plaintiff. In other words, that they bad then assigned tbe lease and vacated tbe demised premises. This, however, it was impossible for them to show, because tbe very reverse was conclusively established by tbe judgment in tbe summary proceeding.

It follows that tbe verdict should have been for tbe plaintiff and not for the defendant. Tbe judgment should, therefore, be reversed and a new trial ordered, with costs to tbe appellant to abide tbe event.

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

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


text:
    Mary Duffy, Respondent, v. Catharine Duffy (John McArdle, Individually, and as Administrator, etc. of Catharine Duffy, Deceased, Substituted, etc., Appellant), Impleaded with Francis Duffy and Others, Respondents.

      Testamentary provision in lieu of dower — widow’s election to accept it —pa/rtition.

    A widow’s election to accept a testamentary provision in lieu of dower follows the running, and takes effect upon the expiration, of the statutory year provided for such election (1 R. S. 742, § 14), unless in the interim there has heen an unequivocal assertion of a claim to dower and a renunciation of the provision made hy the will.
    A testator devised to his widow, in lieu of dower, the undivided half of certain real estate or one-half of the net proceeds thereof ; the widow made no claim to dower, nor did she enter upon the testator’s lands individually (although
      she collected rents therefrom as executrix), within one year after her husband’s death, and under the statute her election to accept the provision of the will became fixed; but in an action for the partition of the land, one-half of which was devised to her, the widow, in her answer, denied the tenancy in common set up in the complaint and alleged that by his will her husband devised all his real estate to her, and asserted absolute ownership in fee of the premises in question and of the whole thereof.

      Reid, that the widow was not concluded by this claim of superior right, and that by making it she did not reject the provision of the will as between such provision and the dower right.
    The interlocutory decree in the action for partition required the widow to indicate her refusal of the provisions of the will, and her election to receive dower, in writing, within thirty days after the sale, and provided that in case she failed to do this she should be deemed to have accepted the provisions of the will. The widow died before the sale, and the order or judgment of distribution made thereafter, after a recital to the effect that the widow had died without having accepted the provisions of her husband’s will in lieu of dower, so disposed of the proceeds of the sale as to deprive the widow’s representative of any share therein.

      Reid, that whether the above provision of the interlocutory decree was authorized, in that it attempted to give the widow more than the statutory year to determine whether she would prefer dower to the provisions of the will, would not be considered;
    That even if the interlocutory decree was right in this respect, it did not justify the above recital in the order or judgment of distribution, which neither followed the interlocutory decree nor was warranted by the facts;
    That all that could be finally adjudged, pursuant to the interlocutory decree, was that the widow died without having refused the provisions of the will or having elected to receive dower, and that, even as to that, the interlocutory decree ceased to be operative upon her death, since she had thirty days after the sale thereunder to file her refusal.
    It appeared that all the facts essential to a final disposition of the question were before the court upon a motion for a resettlement of the order or judgment of distribution.

      Reid, that the right of the widow’s representative to one-half of the net proceeds of the sale then sufficiently appeared, and that such order or judgment should be modified accordingly.
    Appeals by the defendant, John McArdle, individually and as administrator, etc., of Catharine Duffy, deceased, substituted as a defendant in the place and stead of said Catharine Duffy, from three orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 31st day of May, 1892, the 29th day of June, 1892, and the 23d day of March, 1893, respectively.

      The orders appealed from are further described in the opinion.
    The action was brought for the partition of certain real property of which Philip Duffy died seized. The defendant, Catharine Duffy, who died since the commencement of the action, was the widow of said Philip Duffy; the plaintiff and the other defendants are the heirs at law of Philip Duffy, being his brothers and sisters.

      jRufus M. Williams, for the appellant McArdle.

      Sidney H. Stuart, for the plaintiff-respondent.

      W. Irwim for Susan Daly, defendant and respondent.

      Messrs. Doherty, D'urnin <& Hendrick, for Francis Duffy et ah, defendants and respondents.
   Barrett, J.:

There are here three appeals. First. An appeal from what is called an order made by Mr. Justice Lawrence at Special Term on the 31st day of May, 1892, confirming a referee’s report of sale in partition, and decreeing distribution of the proceeds of sale. Second. An appeal from an order made by the same justice at Special Term, on the 22d day of June, 1892, denying a motion to resettle the previous order by varying the direction therein as to the distribution of a certain part of the proceeds of sale. Third. An appeal from an order made by Mr. Justice Ingraham, at Special Term, denying a motion to amend the interlocutory judgment in the particulars as to which relief had been sought by the motion last referred to.

The substantial question brought up by these appeals is whether Catharine Duffy, the widow of Philip Duffy, did or did not elect in her lifetime to accept the provision made for her in her husband’s will in lieu of dower. That provision was a devise of the undivided half of the property sold under the decree of partition herein, “ or one-half of the net proceeds thereof, to her or her heirs or devisees forever.” Philip Duffy died on the 3d day of June 1886. Catharine made no claim to dower within one year thereafter. Under the statute then, her election to accept the provisions of the will became fixed and settled. She could not thereafter reject such provision and claim lier dower. (1 R. S. 742, § 14; Akin v. Kellogg, 119 N. Y. 447, 448.)

It is contended, however, that there was an express repudiation of the provision of the will; not in the manner contemplated by the statute — for Mrs. Duffy neither entered upon the lands individually nor did she commence proceedings for the recovery or assignment of dower — but by the assertion in her answer in this action of a greater right than that conferred by the provision of the will. We say that Mrs. Duffy never entered upon the lands individually because it is claimed that her acts in collecting rents emphasized her refusal to accept the provisions of the will. But she collected these rents as executrix, and her acts in that regard had no bearing upon the question of her individual election.

In her answer, Mrs. Duffy denies the tenancy in common set up in the complaint; alleges that, by the will, her husband devised all his real estate to her, and asserts absolute ownership in fee of the premises in question and of the whole thereof. We do not think that Mrs. Duffy was concluded by this claim of superior right. By making it she did not reject the provision of the will as between such provision and the dower right.- The question whether she would accept such provision rather than dower was not involved in the assertion of another and a different right which was greater than either, and the assertion of the greater right was not inconsistent with the acceptance of the lesser. Her claim of absolute ownership involved an inaccurate construction of her- husband’s will, not repudiation of what was really provided. If the situation had been reversed, her baseless assertion of absolute ownership would not have relieved her from the running of the statutory year nor would an election thereafter to take dower have been permitted. The election to accfept the testamentary provision follows the running of the statutory year, unless in the witerim there is, as was said in Chamberlain v. Chamberlain (43 N. Y. 440), an unequivocal assertion of a claim to dower and a renunciation of the provisions made by the will.” Here there was neither assertion of fhe one right nor renunciation of the other. There was simply what amounted to an unfounded claim, based upon an inaccurate opinion, that the will gave her more than it really did give her, and as a sequence, that she not only accepted, but actually insisted upon all that it gave her, tbe remaining one-half as well as the one-half clearly devised, that is, the whole.

It is contended, however, that the order of distribution was right because it followed the interlocutory decree which was made on the 19th of December, 188Y. By this latter decree Mrs. Duffy was required to indicate her refusal of the provisions of the will and her election to accept dower by an instrument in writing to be filed, and a certified copy thereof to be delivered to the referee within thirty days after the sale. In case she failed to do this, the decree provides that she shall be deemed to have accepted the provisions of the will. These words then immediately follow this latter expression.:

“ To be fixed by the said referee, according to the principles of law applicable to annuities, and to, be paid over to her in a gross sum; or at her. election, one-third of the proceeds of said sale to be paid into court, according to law and the rules and practice of the court, for the purpose of being invested for her benefit, according to law.”

This is somewhat confusing, but the meaning can be gathered from the context. It is quite evident that the words which we have quoted were intended to apply to an election to receive dower and not to the acceptance of the provisions of the will. Plainly, they could not have applied to an acceptance of the provisions of the will. The decree should be read as though all that preceded these words, with regard to the maimer of refusal and election, had been embraced in a parenthesis. It would then read clearly enough, and, doubtless, as was intended, to wit: “ The dower of the said defendant Catharine Duffy, wife of Philip Duffy, deceased, in case she refuses to accept the provisions of said will of said Philip Duffy and elects to receive said dower * * * to be fixed by the said referee according to the principles of law applicable to annuities, etc.”

Mrs. Duffy died long before the sale, and she never filed a refusal to accept the provisions of the will or an election to receive dower. It will be observed that she was not required to file an election to accept the provisions of the will. Acceptance was deemed to follow her failure to file “such refusal or election” — that is, such refusal of the provisions of the will or such election to receive dower. Whether this part of the interlocutory decree was authorized, we need not consider. It attempted to give the widow more tlian the statutory year to determine whether she would prefer dower to the provisions of the will. But even if the decree was right in this respect, it did not justify the recital in the order-appealed from of May 31, 1892, under which recital Mrs. Duffy’s representative has been deprived of any share in the proceeds of the sale. This recital is as follows:

“And it appearing to the satisfaction of the court, by the affidavits of William Irwin and Sidney Ii. Stuart, that the defendant, Catharine Duffy, died on the 19th day of November, 1890, without having accepted the provisions of the will of Philip Duffy, deceased, in lieu of her dower in his estate, and without having elected to receive the same in lieu thereof.”

This, as we have seen, does not follow the interlocutory decree, nor is it warranted by the facts. Mrs. Duffy had accepted the provisions of the will by failing to “ commence proceedings for the recovery or assignment ” of her dower within one year after the death of her husband, and she thereby had elected to receive such provisions, whatever they were cmd however they migty be construed, in lieu of dower.

What has been called the order of May 31, 1892, was in reality the final judgment in the action entered pursuant to section 1577 of the Code of Civil Procedure. It was founded upon the report of sale and upon the pleadings, interlocutory judgment and all the proceedings in the action. But it was not founded upon the affidavits of William Irwin and Sidney H. Stuart, which are recited therein. The notice of the application makes no mention of these or of any affidavits, nor are they to be found in the record. These gentlemen made affidavits to oppose the subsequent motion for a resettlement of this judgment, but none, apjiarently, to support the recital under which the court adjudicated against Mrs. Duffy’s representative. All that could be finally adjudged following the interlocutory decree aloné, was that Mrs. Duffy died without having refused the provisions of the will or elected to receive dower. Even as to that, the interlocutory decree ceased to be operative upon her death. For she had thirty days after the sale thereunder to file her refusal. It is apparent that, upon her death, further directions became imperative, and that her representative was entitled to a hearing in the usual way upon proper proofs.

We think, however, that all the facts essential to a final disposition of the question in dispute were before the court upon the motion for a resettlement of the order or judgment of distribution, and that the right of Mrs. Duffy’s representative to one-half of the net proceeds of the sale then sufficiently appeared.

The order of June 22, 1892, should, therefore, be reversed and the motion granted, and, accordingly, the order or judgment of May 31, 1892, should be modified by striking out the recital above referred to, and instead thereof adjudging that Catharine Duffy did elect to accept, prior to her death, the undivided one-half interest in the property first described in the complaint and in said judgment of partition, in lieu of her dower, and that her estate and next of kin are entitled to receive the same, and that the referee named in the judgment of partition be directed to pay over to the administrator of the estate of the said Catharine Duffy, deceased, one-half of the net proceeds arising from the sale of said premises, with, ten dollars costs of this appeal, and disbursements payable out of the general proceeds of the sale.

And the appeal from the order of March 23, 1893, should be dismissed, without costs.

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

Order of June 22,1892, reversed and the motion granted, and the judgment or order of May 31,1892, modified as directed in opinion, with ten dollars costs of this appeal, and disbursements payable out of the general proceeds of the sale.

The appeal from the order of March 23,1893, dismissed, without costs.


text:
    Jane McKenzie and Another, as Executrices, etc., of Alexander McKenzie, Deceased, Plaintiffs, v. Loftus D. Hatton, Defendant.

      License by a landlord to a contractor at work on adjoining premises to protect the leaded premises — acts of the licensee in excess of the license — liability of the landlord to the tenant for the contractor's acts — eviction — counterclaim in an action for rent.

    When the owner of leased premises gives a license, as called for by the New York Consolidation Act (Laws of 1882, chap. 410, § 474), permitting a contractor at work upon adjoining premises to enter the leased premises to do all things necessary for the purpose of preserving the same from injury, he is not responsible to his tenant in possession of the premises for wrongful acts of the licensee in excess of the license (as, e. g., in stopping the running of an engine which supplied the tenant with power), committed by the licensee either as a trespasser or through permission of the tenant.
    Such an act does not constitute even a partial eviction of the tenant, where he continues throughout in the legal occupation of the entire demised premises and has relinquished no part thereof, and it does not furnish a defense to an action for rent.
    Nor is such a wrongful act a subject of counterclaim in an action brought by the landlord against the tenant for rent.
    Motion by tbe defendant, Loftus D. Hatton, for a new trial on exceptions taken by the defendant upon a trial at the New York Circuit, and ordered to be heard at the General Term in the first instance., a verdict having been directed for the plaintiffs, on the 8th day of February, 1893.

      Eckow'd W. S. Johnston, for the plaintiffs.

      Foley <& Powell, for the defendant.
   Barrett, J.:

This action was for rent. The lease was admitted, also the nonpayment of the rent. The sole defense was a partial eviction. This was pleaded first as a defense, and then as a counterclaim. Upon the trial, the plaintiffs proved the lease and rested. The defendant then gave evidence tending to show that, in the month of July, 1892, certain contractors began to excavate, for the purpose of building, upon the lot adjoining the demised premises, and, desiring to go ten feet below the curb, they obtained from the plaintiffs the ordinary license to enter, as called for by the Consolidation Act. (Laws of 1882, chap. 410, § 414.) This license was in the following language:

“New Yoke, June 28, 1892.
“ Messrs. N. Larkin & Son, Contractors <&c.:
Dear Sirs.— In respect to the excavation which you are making at 18 and 20, &c., Washington Place, and adjoining the property No. 35 West Fourth Street on the rear owned by our clients, you will take notice that you are. hereby permitted to enter upon said premises, No. 35 West Fourth street, to do all things necessary for the purpose of preserving the walls and building of said premises from injury, and that you will be held responsible under the law for any injury that may occur.
“ Respectfully yours,
“D. J. NEWLAND,
“Atty. for Jane McKenzie, Executrix and Trustee, <&c.,
121 Nassau St., N. Y.
“JOHNSTON & JOHNSTON,
“ Attys. for Alice J. Jones, Executrix and Trustee, dec.,
“ 8 & 10 Centre St., N. Y. City.”

Armed with this paper, the contractors called upon the defendant, who told them that he required security against loss or damage ; that he had not given them authority to enter, and that he would hold them responsible for entrance until he had consulted his counsel. The contractors, however, insisted upon entering, telling the defendant that they were bound to go ahead with their business, and that they did not care if they tore the building down. “ Then,” said the defendant, “ I called them in presence of my engineer, and told them, mrder authority to enter from the landlord, to make arrangements with the engineer at what time they desired to enter, what they desired to do, and to notify me, the engineer to notify me as the work went along, so as to keep me posted as to what they were doing.”

There was an engine in the basement of the premises in question which was connected with the second floor by means of belting and shafting, and which was used to furnish power for the purpose of the defendant’s business.

After the above conversation, the contractors entered the premises and proceeded to insert beams in the basement walls and in the passageway going up stairs. They inserted these beams, at such points and in such a manner that the engine could not be run. The consequence was that, for want of such power, the defendant was unable to use his second floor for the purpose to which he had devoted it. This condition of things lasted for several months and constituted the partial eviction of which complaint is made.

Upon this state of facts, a verdict for the plaintiffs was directed; and, we think, properly. , The plaintiffs were in nowise responsible for the acts complained of. Their license was to enter, to do what was necessary for the preservation of the demised premises, not to do anything which might injure them. The moment the contractors did anything contrary to the terms of the license they became trespassers, and the defendant had his remedy against them for the damages caused by their unauthorized acts. These contractors and their employees were not the owner’s servants. Nor were they brought Within that relation by the license. The sole effect of the license was to throw upon the person making the excavations the duty of preserving the wall of the demised premises from injury. (Consolidation Act, above cited.) That duty is, by the act, dependent upon the granting of the license. . If, therefore, such license had been here refused, and in consequence the wall had been injured, the defendant would have had just cause for complaint-against the plaintiffs. He certainly has no such cause where the license has been given but abused.

The defendant also overlooks the fact that the entry here was necessarily under his own authority. Either that or it was a trespass notwithstanding the plaintiff’s license. The defendant had exclusive possession of the premises under his lease, and he could not be disturbed in that possession without his own consent. His-license, as well as that of the owner, was therefore, necessary. (Johnson v. Oppenheim, 55 N. Y. 280; Sherwood v. Seamam, 2 Bosw. 130). And if the contractors exceeded the limits of such license the defendant had his remedy.

The defendant asked to go to the jury on the question of eviction, and also as to the damages claimed in his counterclaim. This-was properly refused, for two reasons : First. Because there was-no eviction in that the defendant has continued throughout in the legal occupation of the entire premises. (Boreel v. Lawton, 90 N. Y. 297.) He never relinquished possession even of the engine room or second floor. Second. Because a counterclaim was not available in an action on the lease for rent due. thereunder. Eviction was necessary to constitute a breach of the covenant of quiet enjoyment ; but, as we have seen, there was no eviction. Eor the wrong done to the defendant, the plaintiffs, as already pointed out, are not responsible. But even if they were, the right of action for that wrong could not be the subject of a counterclaim, for the reason, as was said in Boreel v. Lawton (supra), that it does not arise out of the contract or transaction set forth in the complaint, nor is it connected with the subject of the action, nor is it a cause of action on contract. (See the cases there cited. Edgerton v. Page, 20 N. Y. 281; Lounsbery v. Snyder, 31 id. 514; Home Insurance Co. v. Sherman, 46 id. 370, and Levy v. Bend, 1 E. D. Smith, 169.)

The exceptions should, therefore, be overruled, and judgment rendered for the plaintiffs on the verdict, with costs.

Yan Brunt, P. L, and Follett, J., concurred.

Exceptions overruled and judgment rendered for the plaintiffs on the verdict, with costs.