author: Euger, Ch. J.

text:
    The People of the State of New York, Respondent, v. John Carpenter, Appellant.
    The existence in the mind of a person of an abstract opinion as to the propriety or impropriety of a certain defense in cases theretofore coming to his knowledge does not "necessarily disqualify him from sitting as a juror in another case where such defense is intended to be made ; it furnishes no evidence or presumption that he has any prejudice or bias against the defense when honestly interposed.

      On the trial of an indictment for murder wherein the defense was insanity, a person called as a juror, after having stated under oath that he was unbiased in the present case and had no opinion as to the guilt or innocence of the defendant, testified, that if the defense of insanity was interposed he would have a prejudice against it, adding “ my answer only implies that I believe the defense of insanity has been misused and abused. I am not prejudiced against a person who is insane. It is a prejudice against sham defenses.” Also, that he did not think It would control or influence his judgment against the defense. Held, the incompetency of the juror was not successfully established.
    Another juror, after he had testified that he would go into the jury-box with a bias against the defense of insanity, testified, that notwithstanding this, if accepted as a juror, he thought he could so divest his mind of the “ opinion as to receive and consider the evidence without any bias or opinion against the prisoner,” adding, “ I have an opinion against the misuse of insanity.” Held, that the juror was properly held competent.
    The two jurors were challenged peremptorily by defendant. When the panel was completed he still had the right to fourteen peremptory challenges. Held, that the determination of the court as to the competency of the jurors, even if erroneous, could not have injured the prisoner, and so was not a ground fof reversal.
    The court, at the outset of the trial, gave notice that he should require the defendant to make such peremptory challenges as he desired, to each juror as he was called and examined and before he was sworn individually. Each of the jurors were examined and accepted by both parties before he was sworn. A peremptory challenge to one of the j urors was interposed by defendant’s counsel after the juror had been individually sworn and the panel completed, but before they had been sworn in a body as a completed panel. The court rejected the challenge. Held no error. (Code of Grim. Pro., § 369.)
    There is no rule of practice which requires the court on a criminal trial to postpone the swearing of the jury until the panel is completed ; it is within the discretion of the court to determine the practice, and the prisoner’s legal rights are not impaired if, after he has been allowed a fair opportunity to interpose a peremptory challenge to a proposed j qror, he is not permitted the further exercise of the right by the administration of the oath.
    The defendant killed the deceased with a knife ; this was proved by witnesses who saw the occurrence, and the knife was taken from him. A physician called as a witness for the prosecution testified that the wounds were caused by a ciescent-shaped knife; the knife, which had been identified, was then shown witness, and he was asked if the knife shown would produce the wounds he had described. This was objected to as incompetent, irrelevant and immaterial. The objection was overruled. Held no error; also, that as the testimony was merely cumulative on an uncontroverted point, the testimony was harmless.

      A medical expert, called as a witness by defendant, was asked and permitted to answer, under objection and exception, the question : “ "Do you consider Dr. McDonald an authority upon mental diseases?” This was claimed to be improper, because the prosecution intended to call Dr. McDonald as a witness. That fact was not then made to appear to the trial court, but McDonald was subsequently called. Held, that the objection was untenable; that the ruling could not be made erroneous by the subsequent action on the part of the people.

      It seems that if the subsequent events of the trial rendered the testimony improper, the remedy of the defendant was to move to strike it out and to except to a refusal to do so.
    The court was requested but refused to charge : “ If some controlling disease was in truth the acting power within him (the prisoner) which he could not resist, or if he had not a sufficient use of his reason to control the passion which prompted the act complained of, he is not responsible.” Held no error,
    (Argued March 25, 1886 ;
    decided April 13, 1886.)
    Appeal from judgment of the General Term'of the Supreme Court, in the third judicial department, entered upon an order made January 11,1886, which affirmed a judgment of the Court of Oyer and Terminer of the city and county of New York, entered upon a verdict convicting defendant of the crime of murder in the first degree. (Reported below, 38 Hun, 490.)
    The material facts are stated in the opinion.

      Adolphus Z>. Pape for appellant.
    The court should have excluded White from the jury as prejudiced against the defense of insanity. (Code of Crim. Pro., § 374, subd. 2; id. 376; People v. Casey, 96 N. Y. 115; Greenfield v. People, 74 id. 277; People v. Tyrrell, 21 Weekly Dig. 493.) The prisoner is entitled to have his challenge for cause determined according to law, and to make or withhold his peremptory challenges according to his pleasure. (People v. Bodine, 1 Denio, 281; Burt v. Panjaud, 99 U. S. 180; People v. Willett, 36 Hun, 500.) The jury should be sworn collectively, as a body, at one and the same time. (Code of Crim. Pro., §§ 369, 387; 4 Bl. Com. [Kerr, 4th ed.] 364; Code of Crim. Pro., § 372 ; Hildreth v. City of Troy, 4 N. E. Rep’r, 559; Babcock v. People, 15 Hun, 347, 353.) It was error to allow the deputy coroner to be asked: In your statement you say that these wounds were caused by a crescent-shaped knife; would a knife, such, as I now show you, produce the wounds which you have described? ( Wilson v. People, 4 Park. Cr. 619.) Facts, not opinions, are what should be furnished to the jury, and they, from that, are to determine the kind of weapon used. (People v. Rector, 19 Wend. 574.) It was error to allow an expert, who proved the prisoner’s insanity, to be asked if he considered Dr. McDonald an authority on mental diseases. (Adams v. Greenwich, Ins. Co., 70 N. Y. 166 ; 1 Greenl. on Ev. [14th ed.], §469; People v. White, 14 Wend. 111.) Purely imaginary or abstract questions, assuming facts or theories for which there is no foundation in the evidence, are not admissible as a matter of right. (People v. Augsbury, 2 N. Y. Crim. 561.)

      D'eLancey Nicoll for respondent.
    The evidence justified the verdict, and the proof of deliberation and premeditation was well within the recent adjudications on the subject. (People v. Cornetti, 92 N. Y. 85 ; People v. Majone, 91 id. 211 ; Leighton v. People, 88 id. 117; People v. Hovey, 92 id. 554; Sindram v. People, 88 id. 196; Conroy v. People, 2 N. Y. Crim. Law, 565.) Where the statutes are silent as to the mode of impaneling a jury, after the jurors are returned into the court, all subsequent proceedings in relation to the formation of a jury are left to the discretion of the court. (Thorn. & Mer. on Juries, 288; People v. Damon, 13 Wend. 351.) When each individual juror is sworn in as soon as he has been accepted by the prosecution and the defendant, and before he takes his seat in the jury box, the right of peremptory challenge exists only from the time the juror appears until he is actually sworn. (Regina v. Sullivan, 8 Adol. & Ellis, 83; Epps v. State, 19 Ga. 102; McFadden v. Comm.,23 Penn. St. 17; State v. Anderson, 4 Nev. 265 ; Rast v. State, 61 Ala. 89 ; State v. Patrick, 3 Jones’ L. 443 ; State v. Porter, 18 Conn. 166 ; State v. Cameron, 2 Chand. [Wis.] 172.) There is no provision in the Code of Criminal Procedure, directing the court to swear the jurors collectively for the purpose of extending the right of peremptory challenge or for any purpose. (Code of Crim. Pro., §§ 369, 370, 371, 372, 373, 387.) The challenge for actual bias to the jurors White and Lehmaier, respectively, was properly overruled by the court. (Code of Crim. Pro., §§ 376, 377 ; Commonwealth v. Porter, 4 Gray, 423; Commonwealth v. Boswell, 16 Pick. 153; T. & M. on Juries, art. 2, §§ 193, 196, 197.)
   Euger, Ch. J.

Upon the trial of the defendant for murder in the first degree, the uncontradicted evidence established that on May 26, 1884, he fatally stabbed one Mary Carpenter, his wife, with a knife by repeated stabs upon her. neck, body' and breast in the presence of a number of people, in the open street, in broad daylight. He had become embittered' against her for several reasons, prominent among which was an effort on her part to procure a decree of divorce, and for which purpose, she had caused papers to be served upon him while he was imprisoned at Sing Sing upon a former conviction for crime. After this time and while still imprisoned, in speaking of her action in respect thereto, he, on two or three occasions, expressed his intention to kill her.

Upon being released from prison in April, 1884, he attempted to discover her place of residence, and having found it, frequented its vicinity for some weeks previous to the homicide. On the day in question, he waited near the corner of Third avenue and Twenty-sixth street for several hours, armed with a weapon resembling a shoemaker’s knife, until his wife, accompanied by an unmarried sister, appeared in the street near him. As they approached, he attacked both ladies with "his knife, cutting them and continuing to strike his wife, following her into an adjoining building, where she fled for refuge, until from repeated blows she sank to the ground, and expired.

The only defense attempted on the trial was an effort to establish the insanity of the defendant. This was the sole issue before the jury, and considerable evidence was taken both for and against the theory of the defense. Ho evidence offered by the defendant upon this issue was excluded, and the case was submitted to the jury under instructions, evincing thetenderest regard for his rights, and no exceptions were taken thereto, save in respect to one unimportant particular.

. "The trial judge seems to have conducted the trial with great care, and a determination that no material error should occur in his rulings, which would operate to the defendant’s disadvantage: The jury found the defendant guilty of the crime charged, and the judgment of the court rendered on the verdict has been approved by the Greneral Term, and must be affirmed here unless we find some error committed during the trial, which prejudiced the fights of the defendant.

After a careful examination of the case, we are constrained to say that no such error was committed. The exceptions presented for our consideration relate to,three subjects only, viz.: The charge of the court, the admission of alleged incompetent evidence against the prisoner, and errors claimed to have occurred in the course of the selection of the jury. They may all be characterized as of trivial importance.

We will first consider those relating to the formation of the jury. The individuals who were finally selected to hear and determine the case were free from any objections, .and wore voluntarily accepted by the defendant after ample opportunity afforded him" to raise any objection he desired, as to their competency, or to procure their exclusion by way of peremptory challenge. When the panel was completed, the defendant had remaining the right to make fourteen peremptory challenges, and the power of excluding any and all of the persons sitting on the jury if he had desired to do so, and had at the proper time chosen to exercise his right of peremptory challenge. The jury as selected, must therefore, be considered as being free from any reasonable objection which could have been made to them by the defendant, and to have been competent in all respects to hear and determine the case.

It is, however, urged that White and Lehmaier, two of the jurymen called, against whom the defendant exercised the right of peremptory challenge, should have been rejected for cause, and thus have saved to him two of the challenges to which he was by law entitled. The fact that the right to make fourteen peremptory challenges was allowed to lapse for want of occasion to use them, demonstrates that the defendant could not have; been injured by the decision of the trial court in respect to the jurymen named, however erroneous it might have been. (People v. Casey, 96 N. Y. 115; State v. Potter, 18 Conn. 166.) But we are of the opinion that the incompetency of these men to sit as jurymen was not successfully established by the evidence. It is unquestionably the right of a person on trial for an alleged crime to have the issue made, tried and determined by a fair, competent and disinterested jury, standing impartially between himself and his accusers. But this right does not extend so far, as to enable him to exclude from such jury persons holding abstract opinions not affecting their capacity to decide impartially the particular case upon the evidence produced. The objection in this case was attempted to be shown by examining the jurymen as to the opinions entertained by them upon the subject of insanity as a defense to criminal prosecutions. White testified, among other things, that “ my mind is practically clear and unbiased as between the people and this prisoner.” “ I have no opinion now as to the guilt or innocence of the defendant.” “ If the defense of insanity was interposed, I would have a prejudice against it.” “My answer only implies that I believe the defense of insanity has been misused and abused, and I am not prejudiced against a person who is insane.” “It is a prejudice against sham defenses.” “I don’t think that feeling would control or influence my judgment against the defense of insanity.” Lehmaier testified substantially as follows: “ I have no prejudice or bias against the defense, except when misused, and I can’t tell until I hear the evidence whether it is misused.” “ I would go into the jury box with a bias against that defense.” In answer to the question, “ Notwithstanding what you have read, if accepted as a juror, can you so divest your mind of the opinion as to receive the evidence, or consider it without any bias or prejudice against this prisoner % ” lie said, “ I am sorry to say I think I can, I have an opinion against the misuse of insanity.” Upon this evidence the trig,! judge held both of the jurymen competent, and, we think, correctly so decided. (Commonwealth v. Buzzell, 16 Pick. 160 ; Commonwealth v. Porter, 4 Gray, 423, 424.) The inquiry here, related to the condition of the juror’s mind as" affected by the knowledge and information acquired by him as to criminal trials which had theretofore come within the range of his observation and experience, and his ansxver was, in effect, simply that he thought the defense of insanity had frequently been used in cases where it had no foundation in fact. Can it be reasonably said that this opinion furnishes any ground for saying that such a person is incompetent to hear’ and determine any case where the defense of insanity is honestly interposed ? We do not think that the existence of an abstract opinion on the part of an individual as to the propriety or impropriety of certain defenses in cases theretofore coming to his knowledge necessarily disqualifies him from sitting as a juror in other cases, even where such defenses are intended to be made. If the proof had demonstrated that the proposed juryman did not believe in the existence of a state of mental derangement, or that such a condition did not constitute a defense to a criminal prosecution, quite a different question would' have been presented. But a belief derived from observation and experience that men have theretofore interposed a defense which did not in fact exist to prosecutions for crime, does not in itself, furnish any evidence or presumption that the person holding such a belief has any prejudice or bias against such a defense when honestly interposed. As well might it be said that a person who has sat upon a jury where fraud, or alibi, or incendiarism was the subject of the issue tried would thereafter be incompetent to sit on juries where similar subjects were again to be investigated. It is impossible for individuals to divest themselves of the effect, which knowledge, information and observation impresses upon their minds, and unless the impression produces such an effect as renders the individual incapable of acting impartially in determining the particular issue to he tried, it constitutes no valid objection to his competency. "The issue in this case was whether the defendant was sane or insane at the time he committed the homicide; and the fact that the jurymen were of the opinion that other men were not insane at the time of the commission of alleged crimes, did not render them incompetent to pass upon other cases of alleged insanity. Each one of the proposed jurors testified substantially that he could render a just verdict upon the evidence in respect to the defense of insanity without prejudice or bias against the prisoner, and this was all that the most jealous regard for the rights of the prisoner could require, from the jurors selected to determine the truth of the case. To hold such an objection tenable would put it in the power of the criminal to paralyze the administration of justice by asserting the defense of insanity, and thereby excluding from the jury those who believed that such a defense had been theretofore dishonestly interposed as a shield for crime. The result of innumerable trials in the past shows that such a belief is widespread, and seriously entertained by the community at large, and to-adopt such a test for admissibility to the jury box would be to erect an obstacle to the prompt and efficient administration of the law, instead of furnishing a guard for the protection of innocence.

By the express provisions of the Code of Criminal Procedure, unless the evidence shows “ the existence of a state of mind on the part of the person in reference to the ease or to either party'which, satisfies the court, in the exercise of a sound discretion, that such person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this Code as actual bias,” the person challenged shall be declared competent. (Subd. 2, § 276, Code of Crim. Pro.) So far as the objection in question is concerned the jurymen challenged were wholly free from any knowledge or information as to the condition of the defendant, or the facts of the case, which would produce prejudice or bias against him or his proposed defense. There is no pretense that the men did not believe in the existence of insanity, or the validity of that condition as an exemption from responsibility for crime; but the claim is, that because they believe some persons have falsely used that defense, they are, therefore, incompetent to sit in any case where the defense arises. It is true that the further objection was-made to the juryman Lehmaier that he entértained an opinion as to the guilt or innocence of the defendant, derived from 'what he had heard from the circumstances of the homicide, which ought to disqualify him osa juror. But we are clearly of the opinion that, under the rule established by the Code of Criminal Procedure (§ 376), the proof did not show any such condition of his mind as disqualified him for this reason from sitting as a juror.

The exception taken to the ruling of the court requiring the defendant to make such peremptory challenges as he desired to each juror as he was called and examined and before he was individually sworn, is pressed upon our attention, and the' further exception raising the same question to the rejection by the court of a peremptory challenge to one of the jurors after he had been individually sworn, and the panel had been completed, but before they had been sworn.in a body as a completed panel. The position of the court was deliberately taken at the commencement of the trial, and communicated to the defen dant’scounsel to the effect that they would be required to make such peremptory challenges as they desired to interpose to each juror after he was called and examined and before he was sworn in as a juror. Each of the jurors in the panel was called, examined and accepted by both parties before he was sworn in, and the complaint of the defendant is that the right of peremptory challenge, which in some cases he had deliberately withheld.until all of the jurors were sworn, was not continued to him after the full panel was secured. We are not aware of any authority for this position.

The Code of Criminal Procedure provides that “ before a juror is called the defendant must be informed by the court or under its direction that if he intend to challenge an individual juror he must do so when the juror appears and before he is sworn.” (§ 369.) It is not claimed that this requirement was omitted. “A challenge m.ust be taken when the juror appears and before he is sworn, but the court may, in its discretion, for good cause, set aside a juror at any time before evidence is given in the action.” It is not claimed that any case was made calling for the exercise by the court of the discretion thus provided for, and the validity of this exception must depend upon the question as to whether’ there is any rule of practice which requires the court to postpone the swearing of the jury, until the drawing of the panel is wholly completed. We have been referred to no authority to that effect, and the language of the provision quoted seems to imply that each juror is to be sworn as he is called and accepted by the parties. In The People v. Damon (13 Wend. 351), Judge Savage in a capital case says: “ The regular practice is to challenge jurors as they come to the book to be sworn and before they are sworn, but I apprehend this is matter of practice and may be departed from in the discretion of the court.” This is believed to be the general practice in the courts of this State, and such also, seems to be the rule in the English courts. (Reg. v. Frost, 9 Car. & P. 129), and also in the courts of many of the sister States. (Epps v. State, 19 Ga. 102 ; McFadden v. Comm., 23 Penn. St. 12, 17; Rast v. State, 61 Ala. 89; State v. Potter, 18 Conn. 166.)

The statute being silent as to the time when the jury shall be sworn, we think it was within the discretion of the trial court to determine the practice, and that no impairment of the prisoner’s legal right is made after he has been allowed a fair opportunity to interpose a peremptory challenge to a proposed juror, that he is foreclosed as to the further exercise of the right, by the administration of the oath to the juror, at anytime after he has been examined and accepted.

The objection was taken to the question put to a physician, “ In your statement you say that these wounds were caused by a crescent-shaped knife; would a knife such as I now show you produce' the wounds which you have described,” upon the ground that it was incompetent, irrelevant and immaterial. The objection was overruled and an exception taken. This objection does not raise the question that the evidence was inadmissible because it called for an opinion, but aside from that answer to the exception, we see no error in the ruling. The knife with which the fatal wounds were proved to have been inflicted was taken at the time of the homicide from the hand of the prisoner and produced and identified on the trial beyond controversy. USTo dispute arose on the trial as to the character of the weapon used, or but that the identical knife produced, was the instrument with which the defendant committed the crime. The evidence was merely cumulative upon an uncontroverted point and could by no possibility have done harm to the rights of the prisoner. A similar question was held to be proper in Gardiner v. People (6 Park. Cr. 155, 157). In Wilson v. People (4 Park. 619), the issue was as to the cause of death, and the objectionable question called for the opinion of the witness as to the kind of instrument used in producing certain wounds. It was held improper. This case is clearly distinguishable from the one under discussion.

The exception taken to the decision of the court in overruling the objection to the question, Do you consider Dr. McDonald an authority upon mental diseases,” put to an expert produced by the defendant upon cross-examination by the people, is claimed to have been well taken. It is said to have been improper, because the prosecution intended to call Dr. McDonald as one of the people’s witnesses on the trial. That fact certainly did not appear to the trial court Avhen it passed upon the objection, and Ave do not see how that ruling could be made erroneous by the subsequent action of the people in calling the person named as a witness. The question when asked was quite immaterial, and no error was then committed by the court in allowing it to be answered. If the subsequent events of the trial rendered it improper, the remedy of the party objecting was to' move to strike out the objectionable evidence and except to a refusal to do so.

Other objections were made to questions put by the people to defendant’s witnesses by way of cross-examination, but we think there were none that were important or exceeded the latitude which the court were authorized to allow by way of cross-examination.

The only exception remaining which is deemed of sufficient importance to merit particular notice is that taken to the refusal of the court to charge according to the request of the prisoner’s counsel, If some controlling disease was in truth the acting power within him (the prisoner) which he could not resist, or if he had not a sufficient use of his reason to control the passion which prompted the act complained of, he is not responsible.” The principle of this request is not only impliedly condemned by sections 21 and 23 of the Penal Code, but has been held to be untenable by the express decision of this court. (Flanagan v. People, 52 N. Y. 467.)

Judge Andrews there says: “Indulgence in evil passions weakens the restraining power of the will and conscience, and the rule suggested would be the cover for the commission of crime and its justification. The doctrine that a criminal act may be excused upon the motion of an irresistible impulse to commit it, when the offender has the ability to discover his legal and moral duty in respect to it, has no place in the law.”

The learned trial judge had laid down the rule governing the jury in considering such a defense in the language of the statute, which furnishes a simple, clear and intelligible guide for their deliberations, and from a careful and painstaking examination of the evidence in the case, we see no reason to suppose that they have been mistaken as to its character and effect, or the legal principles applicable thereto.

It seems quite impossible to resist the conclusion that the crime was committed by the defendant with deliberation and premeditation, and with a full consciousness of the wicked and unlawful character of the act he proposed to do, and that. the jury were justified- in rendering a verdict of guilty against him.

The judgment should be affirmed.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Louis Willett, Appellant.
    An indictment for murder in the first degree contained nine counts; three of them alleged the killing as perpetrated while the accused was engaged in the commission of or the attempt to commit a felony, i. e., grand larceny. These were demurred to on the ground that the counts did not contain a correct statement of that offense. They averred that the defendant “ did feloniously steal, take, and carry away ” certain property, which was specifically described, and its value stated at a sum which was more than 825, and its ownership was also stated. Held, that the demurrer was properly overruled; that the counts contained a sufficient averment of the crime of grand larceny.
    The verdict was a general one of guilty. Held, that as other counts ia the-indictment were good, the conviction must be sustained even if the counts demurred to were defective.
    The ordinary common-law counts for murder are still sufficient as a plead- . ing to sustain a conviction.
    (Argued March 25, 1886 ;
    decided April 13, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made the fourth Tuesday of January, 1886, which affirmed a judgment of the Court of Oyer and Terminer in and for the county of Ulster, convicting the defendant of the crime of murder, and affirming an order overruling a demurrer to three counts of the indictment herein.
    The material facts are stated in the opinion.

      William Lounsbery for appellant.
    The indictment was insufficient. It should have described the act so that the facts pleaded would lead to the guilt of the crime as a conclusion. (Code of Crim. Pro., § 275, subd. 2; id., § 183; Penal Code, § 528.) The indictment was defective as it does not allege an appropriation of the goods, with felonious intent, to the use of the defendant or of any other person other than the owner. (Archbold’s Crim. Pl. 366; McCourt v. People, 64 N. Y. 583.) The acts charged in the indictment do not constitute larceny in the first or second degree. (Penal Code, §§ 528, 530, 531.)

      A. T. Clearwater for respondent.
    Tlie demurrer was properly overruled; the first three counts of the indictment containing a correct statement of the offense of grand larceny. (Penal Code, §§ 530, 531, 533, 534.) Presumptions of law or matters of which judicial notice is taken need not be stated in an indictment. (Code of Crim. Pro., § 286.) The court will take judicial notice that he who is engaged in stealing property of the value of more than $25 is engaged in the commission of a felony. (Code of Crim. Pro., §§ 273, 283, 284, 285.) If an indictment contains one good count, it is sufficient, although there may be other defective counts therein. (Phelps v. People, 72 N. Y. 365 ; People v. Davis, 56 id. 95; Gunther v. People, 24 id. 100; Critchton v. People, 6 Park. Cr. 361; 1 Keyes, 344; 1 Abb. Ct. App. Dec. 470; People v. Stein, 1 Park. Cr. 202; Barron v. People, id. 246; 4 id. 26; 33 How. Pr. 70; Frazer v. People, 54 Barb. 306, 308 ; People v. Herrick, 13 Wend. 91, 92; Bretschofsky v. People, 3 Hun, 40; 60 N. Y. 616; Lyons v. People, 68 Ill. 272; Latham v. Queen, 9 Cox’s Cr. Cas. 516; Cook v. State, 49 Miss. 9 ; Estes v. State, 55 Ga. 131; Adams v. State, 52 id. 565; Chappell v. State, 52 Ala. 359; 1 Bishop’s Cr. Pr. [2d ed.], § 1015 ; 3 Whart. Cr. L. [7th ed.], §§ 3208, 3209; People v. Gonzalez, 35 N. Y. 60; Wood v. People, 61 id. 117.) Where an indictment contains several counts, some of which are good, the fact that some of the counts are bad does not make a conviction erroneous where the verdict is general. (Hope v. People, 83 N. Y. 418 ; Pontius v. People, 82 id. 339 ; People v. Davis, 56 id. 85.) The statute defining homicide is not a rule of pleading, but a guide to the conduct of the trial, prescribing the proof requisite to a conviction ; and an indictment containing a count charging murder in the common-law form, if sustained by evidence, justifies a conviction for any of the degrees of felonious homicide known to the law. (People v. Enoch, 13 Wend. 159-172; People v. White, 22 id. 169, 175; Fitzgerald v. People, 37 id. 413, 422; Kennedy v. People, 39 id. 245, 250; Cox v. People, 80 id. 500; People v. Conroy, 97 id. 62; White v. Comm., 6 Bing. [Penn.] 179 ; Fuller v.
      State, 1 Blackf. [Ind.] 63 ; Wicks v. Comm., 2 Brock. [Va.] 389; Mitchell v. State, 5 Yerg. [Tenn.] 340 ; S. C., 8 id. 514; Comm. v. Flannigan, 7 Watts & Serg. [Penn.] 415.) The rule that a penal statute is to be strictly construed does not apply to the Penal Code. (Penal Code, § 11.) Eo indictment • is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits. (Code of Crim. Pro., § 285.)
   Finch, J.

This appeal brings up the record alone and raises merely a question of pleading. The indictment contains nine counts, each charging the prisoner with the crime of murder. To the first three a demurrer was interposed upon the ground that they did not sufficiently charge the commission of the crime. • They aim to allege a murder perpetrated while engaged in the commission of a felony, or in the attempt to commit it; the felony intended being the crime of grand larceny. The defects pointed out are omissions asserted to be necessary to a correct statement of that offense, and consist in a failure to charge the particular intent essential to the crime, and to describe it as grand larceny so as to make it a felony. In the indictment the property stolen is specifically described, its ownership alleged, and its value stated at a sum greater than $25. The theft is then averred in this form : “ Did feloniously steal, take and carry away.” This language is identical with that used in Phelps v. People (72 N. Y. 334, 350), where it was held a sufficient averment of the crime of grand larceny, and in the precise words of the statute. The use of the word feloniously ” was deemed a sufficient averment of the intent necessary to constitute the crime, and the value of the property taken was a sum larger than $25, which fact was pleaded by alleging the full value. We do not think this authority is made inapplicable by the later definitions of the Penal Code. (§ 528.) That section defines with considerable detail what acts shall constitute larceny, and what intent shall characterize the crime, and in the end provides that he who with such intent does any of such acts, steals such property and is guilty of larceny.” The word steals ” is thus defined by the statute itself as covering all the prescribed derails, and its use in the indictment which charges the taking to have been felonious, or with a criminal intent, sufficiently includes the particular intent needed to constitute the larceny. It was not in the least difficult for the prisoner to understand from the indictment the nature of the crime with which he was charged. We think the pleading sufficiently alleged the commission of, or attempt to commit the crime of grand larceny. There is another answer to the argument in behalf of the prisoner. His demurrer was overruled, and at the close of the trial a general verdict of guilty was rendered. That verdict should be sustained if any count in the indictment is good (Phelps v. People, 72 N. Y. 335; Hope v. People, 83 id. 418, 424); and the demurrer to the first three leaves the remainder unassailed and without objection. Two of these are the ordinary common-law counts, which through all the mutations of the statutes defining the crime of murder, and discriminating between its different degrees, we have held to be sufficient as a pleading to sustain a conviction. We have so recently and so fully discussed the subject that a repetition of our views is not needed. (People v. Conroy, 97 N. Y. 62.) Those counts being good and the verdict a general one, the conviction must be affirmed irrespective of the question whether the first three counts were cjefective or not. The indictment largely follows old precedents, whose involved efforts at precision and profuse and awkward verbiage leading to objections of the most technical character, and opening doors to acute and refined criticism, it was the purpose of the Code of Criminal Procedure to reform. The reformation wins its way slowly, but it is our duty to support it when sufficiently attempted, and to encourage the desired result. To sustain the common-law form of an indictment for murder has been the steady ruling of the courts through all changes of definition and of practice, and we see no .reason to depart from that policy, unless by safe and prudent steps to permit that form when used to be further simplified, and brought more nearly to the standard prescribed by the Code.

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Andrews, J.

text:
    Herman Rosenberg et al., Respondents, v. Hugo Block et al., Appellants.
    In an action by the members of an alleged special partnership, to recover the proceeds of goods claimed to have been sold by defendants as agents for plaintiffs, defendants averred in their answer, in substance, that the pretended partnership was a sham resorted to to prevent the creditors of R., the active partner, from reaching his property, and that he was in fact the sole person interested in the business, and defendants set up as an offset an individual indebtedness of R. to them. On the trial it appeared that R., previous to the alleged formation of the special partnership, was individually engaged in business, that he failed, made an assignment, preferring his sister B., the special partner, to a large amount; that the capital of the special partnership was contributed by B., the only contribution of R. being his time and skill. Defendant then offered evidence tending to prove that the claim of B: so preferred was in fact fictitious; that the" assigned property was transferred by the assignor to B. in pretended payment of the fictitious debt, who put it in as the capital of the special partnership which was formed immediately after such transfer, and that R. received and appropriated all the profits of the business. This evidence was excluded. Held error; that the rule prohibiting a creditor, before reducing his claim to judgment, from maintaining an action to set aside an assignment by the debtor as fraudulent, had no application, as defendants were not seeking to set aside the assignment, but simply to show that the plaintiff against whom they have a counter-claim is the sole party interested in the claim sought to be enforced by them, and so that they were entitled to be allowed the counter-claim.

      Rosenberg v, Bloek (18 J. & S. 357), reversed.
    (Argued March 25, 1886;
    decided April 13, 1886.)
    Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made June 16, 1884, which affirmed a judgment in favor of plaintiffs, entered upon a verdict and affirming an order denying a motion for a new trial. (Reported below, 18 J. & S. 357.)

      The complaint in this action alleged a limited partnership between the plaintiffs, formed under the laws of Virginia, under the name of the plaintiff Rosenberg, who was the general, and plaintiff Bottigheimer, the special partner; that said firm delivered to defendants’ firm certain goods, to be sold by them as agents for plaintiff, and proceeds remitted, that defendants' sold the goods, but did not remit proceeds, etc. The answer alleged, among other things, that the alleged special partnership was merely nominal and fictitious; that Rosenberg was the sole person interested in the business and its assets, the pretended partnership having been resorted to to prevent the creditors of Rosenberg from reaching his property, and that he was indebted to the defendants for the goods sold and delivered. This indebtedness defendants set up as a counter-claim.
    On the trial it appeared that prior to the formation of the special partnership, Rosenberg was individually engaged in business in Virginia, that he failed in business and made an assignment for the benefit of creditors, in which he preferred the plaintiff Bottigheimer for an alleged indebtedness of about $4,000. The defendants then offered the proof specified in the opinion, which was objected to and excluded.

      Samuel W. Weiss for appellants.
    It was proper to ask the plaintiff, Rosenberg, whether he had done all he was advised or believed it necessary or proper to do toward giving the fact of partnership due publicity. (Nicolay v. Unger, 8 N. Y. 54; Terpenning v. Corn Exch. I. Co., 43 id. 279.) Defendants had the right to have a non-responsive or objectionable answer obtained under a commission stricken out. (Lansing v. Cooley, 13 Abb. 272; Greenman v. O'Connor, 25 Mich. 30 ; Kingsbury v. Moses, 45 N. H. 222.) Where fraud is an alleged element in a cause, facts which naturally and logically indicate its existence, the subsequent acts of the parties charged with it, and circumstances tending to show the fraudulent intent are competent evidence. (Shultz v. Hoagland, 85 N. Y. 464; Hubbard v. Briggs, 31 id. 538; Dambman v. Butterfield, 2 Hun, 284.) Any creditor may attack an assignment collaterally; a creditor must be a judgment creditor only when there is a proceeding in equity by him to set aside the assignment. (Bishop’s Insolv. Assign., §§ 237, 243.) bic special partnership was established. ( VanIngen v. Whitman, 62 N. Y. 513 ; Maginn v. Lawrence, 45 Sup. Ct. 235.) Actions like this must be brought in the name of the general partner only. (Code of Civ. Pro., § 488, subd. 5; id. 498; commissioners’ note, § 488; Simar v. Canady, 53 N. Y. 298; Old Code, § 144.) There was no evidence that plaintiff’s firm caused to be delivered any merchandise upon any agreement of agency and remittance by defendants. (Hogan v. Short, 24 Wend. 458.) To recover, plaintiffs were bound to establish defendant’s receipt of the money before action commencéd. (Nat. Trust Co. v. Gleason, 77 N. Y. 400; N. Y. Guard, and Indemnity Co. v. Gleason, 78 id. 503; Edwards v. Farmers' Ins. Co., 21 Wend. 482; Dows v. Morewood, 10 Barb. 187; Everett v. Salters, 15 Wend. 474; Morris v. Rexford, 18 N. Y. 522; Smith v. Mayor, etc., 2,1 id. 518; Whitcomb v. Hungerford,, 42 Barb. 178; Bush v. Filley, 49 id. 600 ; Ford v. Ford, 53 id. 525.) The court erred in refusing the request to charge that if the jury find that at the time of the commencement of this action, defendants had not received any money from the sale of the goods mentioned in the complaint, they must find against plaintiffs and for defendants. (Nat. Trust Co. v. Gleason, 11 N. Y. 400.) Under the circumstances, defendants were entitled, as a matter of right, to an allowance of their counter-claim against any recovery on plaintiff’s claim. (Pratt v. Collins, 20 Hun, 126; Stacey v. Deey, 1 Term. R., note c; Carr v. Hinchcliff, 4 B. & C. 547.) The mere knowledge of the existence of a special partnership, wherein Herman Rosenberg was interested, does not change the rule. (Moore v. Clemenston, 2 Camp. 22.) To deprive defendants of their right of set-off herein, it must have been shown, and was not, that in this particular transaction, Rosenberg was acting on behalf of the firm, and defendants had knowledge, or good reason to believe, that he was so acting. (Hogan v. Short, 24 Wend. 462.)

      Theron G. Strong for respondents.
    There could be no controversy over, the amount received, because the terms upon which they were authorized to sell were definite, and they informed the plaintiffs that they had sold the goods presumably as authorized. (Allen v. Brown, 44 N. Y. 228; Gray v. Murray, 8 Johns. Ch. 167.) The defendants are clearly estopped from denying the sale and receipts of the proceeds. (Ackley v. Dygart, 33 Barb. 176; Voorhis v. Olmstead, 66 N. Y. 113; O'Leary v. Board, 93 id. 1.) The motion to dismiss the complaint, on the ground that no special partnership was legally formed under the Virginia Code, and that the action should be in the name of the general partner alone, was properly denied. (Va. Code, § 4.) If the defendants did not know that the partnership was formed, they had a right,- under the authorities, to offset against the proceeds of the goods in then-hands the individual indebtedness of Rosenberg to them. If, however, they did know of the formation of the partnership, they would not have this right. (Pratt v. Collins, 20 Hun, 126 ; Menagh v. Whitwell, 52 N. Y. 146; Atkins v. Saxton, 77 id. 195, 199; Falkland v. St. Nicholas' Bk., 84 id. 245.) The defendants, so far as Rosenberg is concerned, did not even show themselves to be judgment creditors, and, therefore, not even as having taken the first step toward exhausting their remedy against him, and if they had brought suit against him to set aside the assignment, or to attack it as fraudulent, they would have had no standing. (Southard v. Benner, 72 N. Y. 424; Thurber v. Blanck, 50 id. 80.)
   Andrews, J.

The jury found upon evidence which justified the submission of the question to them, that the defendants, when they received the goods, had notice that they belonged to a special partnership, doing business under the name of “H. Rosenberg,” and were not the individual property of Rosenberg. Upon this finding it is plain that there was no right to set off the individual debt of Rosenberg, against the plaintiff’s claim. It is insisted, however, that the trial judge improperly excluded certain questions.put to the plaintiff Rosenberg, relating to the disposition by his general assignee for the benefit of creditors of the assigned property, under his assignment of January 18, 1882, by which it was sought to prove that the assigned property in whole, or in part, constituted the contribution of the special partner to the capital of the special partnership formed between the assignor Rosenberg, and his sister, Mrs. Bottiglieimer, February 2, 1882. It is also insisted that the judge erred in excluding other questions put to Rosenberg, as to the consideration of the indebtedness of about $4,000 for which Mrs. Bottiglieimer was preferred in the assignment, and questions relating to the management of the special partnership, and as to who received the profits of the business. The defendants in their answer alleged in substance that the pretended special partnership was a mere sham, and that Rosenberg was in fact the sole person interested in the business and assets, and that the partnership was resorted to as a mere cover to prevent his creditors from reaching his.property. If these facts had been established the right of set-off attached. The questions excluded should, we think, have been allowed upon this issue. They were not objected to or excluded upon any suggestion as to the order of proof, but on a general objection, no special ground being specified. If the answers had disclosed that there was no debt owing to Mrs. Bottigheimer from Rosenberg when his assignment was made; that the assigned property was transferred to her by the assignor in pretended payment of this fictitious debt, and that Rosenberg acted nominally as her agent in the transaction, and that immediately thereafter the special partnership was formed, and this property was put in as the capital of the special partner, and that Rosenberg received and appropriated the profits of the business; it cannot be said that these facts were not relevant to the issue tendered by the answer as to the real ownership of the consigned goods. In passing upon the exception the defendants are entitled to the presumption that the answers to the excluded questions, if allowed, would" have tended to establish the facts upon which they relied, and to which the questions pointed. The claim that the defendants cannot in this action assail the bona Jides of the assignment of Rosenberg, under the rule that a creditor at large cannot, before reducing his claim to judgment, maintain an action to set it aside as fraudulent (Southard v. Benner 72 N. Y. 424), is not tenable. The defendants are not seeking to set aside the assignment. Being called upon to pay a debt, they answer that they have a counter-claim against one of the plaintiffs, and that he is the sole party interested in the claim which is sought to be enforced against them. The assignment has been executed, and we see no principle which precludes the defendants from, showing that the property which went into the special partnership, was his, and that the pretended transfer by the assignor to Mrs. Bottigheimer was a mere cover for Rosenberg. For the error in rejecting the answers to the questions referred to, the judgment should be reversed.

All concur.

Judgment reversed.


author: Miller, J.

text:
    Phebe Schuster et al., Respondents, v. The Dutchess County Insurance Company, Appellant.
    A policy of fire insurance issued by defendant for a premium in gross insured the plaintiffs for the sum of $800 on their dwelling-house and $700 on their household furniture and other personal property therein. By the terms of the policy it was vitiated by any false, statement in the application for insurance. The application stated that the insured were the owners of the real estate. This was in fact untrue. In an action upon the policy, held, that the contract was severable; that while the misrepresentation rendered the policy void as to the insurance on the dwelling, and if made with full knowledge of its falsity, might affect the whole insurance, yet if made in good faith and under a misconception as to the fact, it did not affect the insurance upon the personalty, and there being evidence tending to show good faith, this was a question of fact for the jury.
    The policy contained a condition rendering it void in case of any misrepresentation or false swearing in any statement or affidavit in reference to a loss. In the proofs of loss it was stated that plaintiffs were owners of the real estate. Held, that if this was done honestly and under a mistake as to the ownership, it did not vitiate the insurance on the personal property, and the question was properly submitted to the jury.
    (Argued March 25,1886;
    decided April 13, 1886.)
    Appeal from, judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made Hay 6, 1884, which affirmed a judgment in favor of plaintiffs, entered upon a verdict.
    This action was upon a policy of fire insurance issued by the defendants, which for a premium of • $29 insured the plaintiffs, “ $700 on their dwelling-house, $500 on their household furniture and wearing apparel therein.”
    In and by the policy of insurance it was provided that all applications for insurance should be in writing according to the printed forms prepared by the company; and that such application should contain the place where the property was situated. Also that the property should be insured in the name of all the owners, and that any misrepresentation or concealment in the application should render the policy void and of no effect. It was also provided that all persons sustaining loss or damage, should make and deliver to the company proof of loss, wherein they should declare on oath what their interest in the property insured was at the time of the loss or damage, and that any misrepresentation, concealment or fraud, or false swearing in any statement or affidavit in relation to the loss or damage, should forfeit all claims by virtue of the policy, and should be a full bar to all remedies upon the same. In the application, and in response to the question, “ Who owns and who occupies the premises, and for what purpose is the house occupied ? ” the plaintiffs answered, “ owned by applicants and occupied by them as a dwelling, and one part used as a small country store.” In the proof of loss delivered to the company, signed and sworn to by the plaintiff, Louis Schuster, it was stated that the company insured the plaintiffs against loss and damage “ to the amount of $1,500, as follows: $700 on their dwelling-house, $800 on their household furniture and wearing apparel therein,” and that the property insured belonged to “ Phebe Schuster and Louis Schuster in equal parts.”
    The land formerly belonged to plaintiffs, but had been sold on mortgage foreclosure.

      T. F. Bush for appellant.
    A false representation of a material fact is sufficient to avoid a policy of insurance made on the faith of it. Whether the false representation be by mistake or design, it is a legal and practical fraud. (Armour v. Transatlantic Ins. Co., 90 N. Y. 456.) The plaintiffs were bound by their agreement to.answer truthfully and at their peril. (Graham v. Firemans' Ins. Co., 87 N. Y. 69.) By the agreement of the parties, the misrepresentation is put upon the same footing as a breach of warranty. (Armour v. Transatl. Ins. Co., 90 N. Y. 456 ; Graham v. Fireman's Ins. Co., 87 id. 69; Burritt v. Saratoga Co. Mut. Ins. Co., 5 Hill, 188 ; Jackson v. St. Paul Ins. Co., 33 Hun, 65 ; Savage v. Howard Ins. Co., 52 N. Y. 504.) A warranty must be literally true, and fully complied with, or the contract fails, regardless of questions of motive, or materiality. (Pierce v. Emp. Ins. Co., 62 Barb. 636; Burritt v. Saratoga Co. Mut. Ins. Co., 5 Hill, 188; Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75 ; Lasher v. St. Joesph's F. Ins. Co., 86 N. Y. 423 ; Gates v. Madison Co. Mut. Ins, Co., 2 id. 43; Chaffee v. Catt. Co. Ins. Co., 18 id. 376 ; Le Roy v. Market F. Ins. Co., 39 id, 90 ; Shoemaker v. Glens Falls Ins. Co., 60 Barb. 84.) The title of the assured to the property at risk, and the extent of his interest is a matter directly affecting the risk. (Savage v. Howard Ins. Co., 52 N. Y. 504; Graham v. Fireman's Ins. Co., 87 id. 79.) If in the present case the application had been simply for an insurance upon the furniture, and the same misrepresentation had been made in response to the same inquiry, it would have been fatal to the insurance. (Wall v. East River Mut. Ins. Co., 7 N. Y. 370; Burleigh v. Gebhard F. Ins. Co., 90 id. 220.) A misrepresentation in procuring a policy of insurance directly relating" to the risk upon the building affects also the risk upon the personal property therein, especially where the matters misrepresented are the subject of direct inquiry in the application, and in such case there is no ground for distinction between the two classes of property. ( Wilson v. Herkimer Co. Mut. Ins. Co., 6 N. Y. 53 ; Wall v. East River Ins. Co., 7 id. 370; Chaffee v. Catt. Co. Ins. Co., 18 id. 376 ; Le Roy v. Market F. Ins. Co., 39 id. 90; Burleigh v. Gebhard F. Ins. Co., 90 id. 220; Shoemaker v. Glens Falls Ins. Co., 60 Barb. 84; Jackson v. Paul Ins. Co., 33 Hun, 60 ; May on Ins. 301, § 277; Wood on Ins. 268, § 152; Ætna Ins. Co. v. Rush, 44 Mich. 55; Moore v. Va. Ins. Co., 28 Gratt. 375; Lovejoy v. Augusta Ins. Co., 45 Me. 472 ; Gould v. York Co. Ins. Co., 47 id. 403; Friesmuth v. Agawam Ins. Co., 10 Cush. 587; Brown v. Peo. Mut. Ins. Co., id. 280 ; Kimball v. Howard Ins. Co., 3 Gray, 583; Gallaman v. Penn. Ins. Co., 56 Penn. St. 210; Schumitsch v. Am. Ins. Co., 48 Wis. 26 ; Richardson v. Maine Ins. Co., 46 Me. 394.)

      Thornton A. Niven for'respondents.
    The policy in suit was severable. (Alb. L. J., March 25, 1882, p. 224; Merrill v. Agri. Ins. Co., 73 N. Y. 452; Sunderlin v. Ætna Ins. Co., 18 Hun, 522; 8 N. Y. Weekly Dig. 530; Dacy v. Agri. Ins. Co., 21 Hun, 83 ; Holmes v. Drew, 16 id. 491; Woodward v. Repub. F. Ins. Co., 32 id. 365.)
   Miller, J.

In the case of Merrill v. The Agricultural Ins. Co. (73 N. Y. 452), this court held that where, by a policy upon several separate and distinct classes or species of property, each of which is separately valued, the sum total of the valuation is insured on payment of a premium in gross, the contract is severable, and a breach of a condition avoiding the policy as to one of the items does not affect it as to the others; at least where there is nothing in the terms, in the nature of the contract, or of the different subjects of the insurance, or in the surrounding circumstances, from which it can be inferred that the insurer would not have been likely to have assumed the risk on one or several of the subjects of the insurance, unless induced by the profit or advantage of having a risk upon all.

In this case there was a separate insurance upon the buildings erected on the real estate as well as upon the personal property. By the policy different classes of property were insured for separate and distinct amounts, and under the case cited, it must be considered not as a contract entire in itself, but as one which is severable, and in which the separate amounts specified may be distinguished and a recovery had for one of them without regard to the others. The same view of the question was taken in an elaborate opinion in the unreported case in this court of Heacock v. Saratoga Mutual Fire Ins. Co. In that case the policy insured the plaintiff, on his woolen factory and on his machinery separately, and it appeared that the plaintiff had no title to the real estate, yet a recovery was had for the value of the machinery separately. The case is strikingly analogous to the one under consideration, and taken in connection with Merrill v. Agri. Ins. Co. (supra), appears to be conclusive upon the question presented. The alleged false representation here consisted in the statement made as to the ownership of the building insured, and while such representation rendered the policy void as to the real estate, and if made with full knowledge of its falsity, might affect the entire policy, the facts connected with it were a proper subject for consideration in reference to the personal property, which was severed from the real estate,'in determining whether a fraud was intended ; and in view of the authorities cited, it was a question for the jury to decide whether, under the circumstances, there was an intent to defraud, or whether the misrepresentations were made under a misapprehension as to ownership of the property.

The counsel for the appellant insists that the negotiation for this policy was vitiated by the false representation in the application and no contract resulted from it, and we are referred to numerous authorities to sustain the position that a false representation of a material fact is sufficient to avoid a policy of insurance made on the faith of it, whether the false representation be by mistake or design ; that such false representation, whether known to be untrue or not, defeats the policy under the contract of insurance contained in the same, and places a misrepresentation upon the same footing as a breach of warranty.

There is no doubt as to the general application of the rule stated, but as we have seen, the authorities cited make a distinction and allow a severance between separate items of insurance on property in the same policy, and in such a case the rule referred to is not applicable. It is claimed that a distinction exists between the case of Merrill v. Agri. Ins. Co. and the one considered, but we are unable to perceive any difference between the two cases, which prevents the application of the same principle to both of them. In the present case, the insured, by their agent, misrepresented that they were the owners of the real estate, while in the case cited, the insured placed an incumbrance on the property after the policy was issued, but the same principle applies to both cases, inasmuch as the amounts insured in the policies were 'severable. Nor can it, we think, be said that it was unnecessary to consider the question now presented in the case cited, and for that reason it is not in point.

The appellant’s counsel also insists that any recovery by the plaintiff is barred by the misrepresentation and false swearing in the proof of loss. This is claimed under the provision in the policy, that “ any misrepresentation or concealment, or fraud or false swearing, in any statement or affidavit in relation to loss or damage, shall forfeit all claim by virtue of this policy and shall be a full bar to all remedies upon the same.”

Upon the trial there was evidence tending to show that the plaintiffs supposed and believed they were the owners of the real estate, and that they made the affidavit accordingly. If this was done honestly and in good faith, while laboring under a mistake in law as to their ownership, there is no ground for claiming that the representation was fraudulent and that it should prevent a recovery. This question and all others as to the plaintiffs’ fraudulent intent were submitted to the consideration of the jury, and, as they found for the plaintiffs, their verdict must be regarded as final and conclusive.

No error was committed by the court in refusing to charge, as requested, that if the jury believed from the evidence that Mr. Schuster made and swore to the proof of loss and delivered •it to the defendant, intending thereby to obtain from the defendant the amount of insurance upon the house, knowing that the insured were not the owners of it, such false proof of loss precluded a recovery by the plaintiffs.

The court upon the trial charged generally that if there was fraud, not limiting it to the personal property, there could be no recovery, thus presenting that question to the consideration of the jury. The request as made asked the court to charge that an untrue statement, not fraudulently made, as to the real estate would defeat a recovery as to the personal. This would have established an erroneous rule for the guidance of the jury, and in refusing the request as made, the court followed the decisions already cited.

The judgment should be affirmed.

All concur. •

Judgment affirmed.


author: Rapallo, J.

text:
    Mary Frank, Respondent, v. The Mutual Life Insurance Company of New York et al., Appellants.
    An assignment, by a married woman, of a policy of insurance for her benefit upon the life of her husband, made prior to the passage of the acts authorizing such an assignment (Chap. 821, Laws of 1873 ; chap. 248, Laws of 1879), is voidable at her option ; and this although the premiums on the policy were paid by her out of her separate estate, and although no reference is made in the policy to the statute (Chap. 59, Laws of 1840), authorizing the issuing of .such policies. The non-assignability of the policy did not depend upon the question whether the premiums were paid by the husband, the wife, or a third person.
    Where, however, such an assignment was made by the wife, and after the thirty days’ notice of a premium falling due, required by the act of 1876 (Chap. 341, Laws of 1876), had been given to her, the assignee surrendered the policy to the company, and such premium was not paid or tendered to the company, and no subsequent premiums were paid or tendered by her. Said,. that the policy was forfeited, under the condition therein declaring it void, if premiums should not be paid wheh due; that as between her and the company she was placed in no better position in this respect by her assignment of the policy and its surrender, than if she had retained it; also the facts that when the policy was surrendered, the company attached to it the assignee’s receipt for the sum paid him, stamped on the policy the word “ paid,” and retained it in its possession, did not amount to a conversion of the policy and did not prevent the assured, had she desired to avoid the assignment, from so notifying the company or tendering the premiums as they fell due.

      Whitehead v. H. T. M. L. Ins. Go. {ante, p. 148), distinguished. '
    But held, that the wife could maintain an action as for money had and received against the assignee to recover the amount received by him on such surrender, less the premiums paid by him, with interest; that her right to avoid the assignment existed as well after as before the surrender, and that an action against him was a sufficient election to avoid the assignment and adopt his act in receiving the avails of the policy.
    The policy was assigned by the wife in 1875. In 1876 the assignee assigned it, with her consent, to another, who surrendered it for a sum paid. This action was brought in 1881, among other things, to recover of the second assignee the amount so received less premiums paid by him. Held, that the delay in making the election to avoid the assignment did not forfeit her right so to do, as it was insufficient to bar her claim under the statute of limitations.
    Defendant D., the second assignee, offered evidence to the effect that, when he paid the premium in 1876, the secretary of the insurance company informed him that the policy had lapsed, but that if he would pay tire premiums due, the company would revive the policy for his benefit alone. Held, that the evidence was properly excluded; that the policy could not be revived and at the same time converted into an insurance in favor of D. only; that, if the policy was forfeited and the forfeiture waived, the assured was entitled to the benefits of the waiver and revival.
    (Argued January 26, 1886;
    decided April 20, 1886.)
    Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of Hew York, entered upon an order made at the January term, 1884, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.
    This action was brought by plaintiff, a married woman, to recover the surrender value of a policy of insurance issued by the defendant company to plaintiff on the life of her husband in 1869, or for a judgment requiring the company to issue a paid-up policy. The policy was assigned by plaintiff in 1875 to one Kopfer who, in 1876, with the assent of plaintiff, assigned it to defendant Demond; the latter, in January, 1877, surrendered the policy to the company, receiving therefor the sum of §2,970.42.
    The further material facts are stated in the opinion.

      Julien T. Ernies for the Mutual Life Insurance Company, appellant.
    The policy was not taken out under the statute of 1840, as amended, and as the policy is a common-law one, the assignments made by the plaintiff are valid and binding on her. (Whitehead v. N. Y. L. I. Co., 33 Hun, 429 ; Brummer v. Cohn, 9 Daly, 39, 46; 86 N. Y. 11, 15 ; Smillie v. Quinn, 90 id. 492, 495; 25 Hun, 334 ; Olmsted v. Keyes, 85 N. Y. 605 ; Burrough v. Conn. L. I. Co., 34 Conn. 305, 314; Barry v. Equit. I. Co., 59 N. Y. 593; Wilson v. Lawrence, 13 Hun, 241, 593 ; Kupfer v. Frank, 4 Civ. Pro, 54; Moore v. Met. Bk., 54 N. Y. 41.) The plaintiff herself could have lawfully' surrendered the policy to the company and discharged it from further liability. (Sedgwick on Stat. and Const. Law, 153; In re Corners Cent. Park, 50 N. Y. 497; The Cherokee Tobacco, 11 Wall. 616; Excelsior Petr. Co. v. Lacey, 63 N. Y. 422; Ross v. Wigg, 36 Hun, 111; In re Swam, 33 id. 203.) She could confer upon another person the right to surrender it for her and as her agent, and her assignment must be construed, as to this defendant, as conferring this power. (Robinson v. Mut. Benefit Ins. Co., 16 Blatchf. 194.) If the assignment was void, the rights and duties of the parties to the contract remained as they were before the assignment. (Leonard v. Clinton, 26 Hun, 290 ; Bloomingdale v. Lisburger, 24 id. 350; Whitehead v. N. Y. L. I. Co., 63 How. 395; S. C., 33 Hun, 425 ; Pilcher v. N. Y. L. I. Co., 33 La. Ann. 422; Herrick v. Nat. L. I. Co., 5 Ins. L. J. 80.) The plaintiff lost all rights created by the policy, by its lapse for the non-payment of the premium due January 21,1877. [Smillie v. Quinn, 90 N. Y. 497.) The plaintiff cannot be allowed to question the assignments, in order to enable her to sue for an alleged conversion. [Smillie v. Quinn, 90 N. Y. 335; Barron v. Brummer, 3 N. E. Rep’r, 474.) The plaintiff can only recover judgment in any event against Demond alone for money had and received. (Gray v. Palmer, 2 Rob. 500; 41 N. Y. 620.) Even if the plaintiff has the right to avoid the assignments and every thing done under them, this defendant was not guilty of a conversion. (Pollock on Ins. 8; Cary v. Hotaling, 1 Hill, 311; Schroeppel v. Corning, 5 Denio, 236 ; Broughton v. Bruce, 20 Wend. 234; Stafford v. Raaf, 9 Cow. 626; Young v. Billiter, 30 L. J. [N. S.] 153; 25 L. J. [N. S.] Q. B. 172,174.) Under the rules governing the measure of damages, plaintiff could recover against the company only nominal damages, even if a case of conversion is made out against this defendant. (Baker v. Drake, 53 N. Y. 211; Gruman v. Smith, 81 id. 25 ; Colt v. Owens, 90 id. 370; Devlin v. Pike, 5 Daly, 85 ; Stevens v. Low, 2 Hill, 132; Wuesthoff v. Germania Life, 20 J. & S. 208.)

      John H. V. Arnold for George W. Demond, appellant.
    Demond took the absolute legal title to the policy with plaintiff’s assent, subject only to her right of disaffirmance, and that right might be barred by the statute of limitations. (Schroeppel v. Corning, 5 Denio, 236.) The custody of the policy in Demond or in the company did not affect or impair plaintiff’s rights, nor could any delivery or surrender from one to the other affect or impair them. (Douglass v. Knick. L. Ins. Co., 83 N. Y. 504; Knox v. N. Y. L. Ins. Co., 104 U. S. 88.) If there has been any loss to plaintiff, it has not occurred through any thing Demond or the company did, but through her own neglect to pay premiums. (Dickinson v. Dudley, 17 Hun, 572; Atty-Gen'l v. Guardian L. Ins. Co., 14 Week. Dig. 328 ; Thayer v. Manley, 73 N. Y. 305.) She cannot recover the amount received by Demond as money had and received to her use, for that money never belonged to her and was not paid to him for her or for her benefit. She cannot claim that the surrender was invalid, and at the same time claim the moneys received for it. (Patrick v. Metcalf 37 N. Y. 333; Butterworth v. Gould, 41 id. 450; Osby v. Conant, 5 Lans. 310; Rowe v. Bk. of Auburn, 51 N. Y. 674; Hathaway v. Town, 54 id. 655.)

      A. H. Dyett for respondent.
    The policy was not assignable by Mrs. Frank under any circumstances or for any purpose. (Laws of 1840, chap. 80; amended by Laws of. 1858, chap. 187; Laws of 1862, chap. 70; Laws of 1866, chap. 656, § 2; Laws of 1870, chap. 277; Eadie v. Slimmon, 26 N. Y. 9 ; Brummer v. Cohen, 86 id. 11,14,15,17; Mut. L. Ins. Co. v. Terry, 62 How,. 325 ; Wilson v. Lawrence, 13 Hun, 238 ; affirmed, 86 N. Y. 585; DeJonge v. Goldsmith, id. 614; Barry v. Brune, 71 id. 261; Barry v. Equit. L. Ins. Co., 59 id. 587.) Both of the defendants were guilty of a conversion of the policy. (Schroeppell v. Corning, 5 Denio, 236 ; S. C., 6 N. Y. 107; Boyce v. Brockway, 31 id. 490; Kingman v. Pierce, 17 Mass. 247; Donnell v. Thompson, 13 Ala. 440; Bissell v. Drake, 19 Johns. 66; 6 Wend. 609 ; 5 Denio, 240, 244, 528, 532; 22 Wend. 285; 31 N. Y. 493; 9 Bosw. 322, 326 ; 6 Abb. [N. S.] 209, 214; 3 N. Y. 506; 39 id. 441; Holbrook v. Wright, 24 Wend. 169, 179, 180; Murray v. Burling, 10 Johns. 172; Connah v. Hale, 23 Wend. 462; Bristol v. Burt, 7 Johns. 254; Wilson v. Lawrence, 13 Hun, 240 ; 39 N. Y. 441; 40 id. 314.) The policy being a non-negotiable chose in action, Demond took only his assignor’s title and the company took only Demond’s, subject to all the rights and equities between Demond and the plaintiff, and even the latent equities of third persons. (Trustees of Union College v. Wheeler, 61 N. Y. [Dwight, C.] 104 et seg. ; Greene v. Warwick, 64 N. Y. 220, 224; Spraights v. Hawley, 39 id. 441; Ballard v. Burgett, 40 id. 314.) In every case of conversion the plaintiff’s title remains unaffected, and he may sue any other person liable for the same conversion. It is only when the judgment is paid that the title passes. (8 Cow. 43-45 ; 31 N. Y. 210, 215; 73 id. 305, 309.) As pledgee Demond could only collect or enforce the policy. (Wheeler v. Newbold, 16 N. Y. 392, 398.) And any other disposition of it, without first demanding the debt and giving the plaintiff notióe to. redeem, was a conversion. (Farwell v. Imp. & Trad. Bk., 90 N. Y. 490; Baker v. Drake, 66 id. 518.) It is no defense to an action for a wrong that there is another party who is equally guilty. (Daven

      port v. Ruckman, 81 N. Y. 568, 574 ; Low v. Mumford, 14 Johns. 426; Creed v. Hartman, 8 Bosw. 128 ; Wehle v. Butler, 61 N. Y. 247; 8 Cow. 43-45.) As the “ surrender and delivery ” of the policy was without authority of the plaintiff, no title to or interest in the policy passed to or was acquired by the company, and the plaintiff’s title to it remained unaffected. (8 Cow. 43-45; 31 N. Y. 215.) No payment or tender by the plaintiff of the premium filling due January 21, 1877, was necessary. . By the cancellation, surrender, stamping as “ paid," and payment by the company to Demond of the surrender value of January ninth, and the subsequent retention in their possession of the policy by the company, they had selected Demond as the only person whom they recognized, and it would have been a vain and absurd thing afterward to tender payment of that premium. (Robinson v. Nat. Bk. of New Berne, 95 N. Y. 637, 643, 644.) No demand of the policy or the money upon either of the defendants was necessary before bringing this action. (Pease v. Smith, 61 N. Y. 477; Connah v. Hale, 23 Wend. 462, 466 ; Sharp v. Whipple, 1 Bosw. 557; Trow v. Shannon, 78 N. Y. 453 ; Robinson v. Nat. Bk. of New Berne, 95 id. 637, 643, 644; Davidson v. Donadi, 2 E. D. Smith, 121; 6 Hun, 529 ; 4 Daly, 223; 5 N. Y. Weekly Dig. 486; 5 Denio, 236, 240, 242, 250, 251; 9 Bosw. 322, 326.) The act of 1840 does not make it necessary that the husband should pay the premiums. (Act of 1840, as amended by Laws of 1858, chap. 187; Laws of 1866, chap. 656 ; Laws of 1870, chap. 277; Wilson v. Lawrence, 76 N. Y. 585 ; S. C., 13 Hun, 238, 241; Brummer v. Cohen, 86 N. Y. 11; DeJonge v. Goldsmith, 86 id. 614; Barry v. Equit. L. Ins. Co., 59 id. 587; Eadie v. Slimmon, 26 id. 9; Mut. L. Ins. Co. v. Terry, 62 How. 325 ; Barry v. Brune, 71 N. Y. 261; Smillie v. Quinn, 90 id. 492.)
   Rapallo, J.

We are of opinion that the policy issued by the defendant company to the plaintiff on the life of her husband, on the 21st of January, 1869, was, under the decision of this court in Brummer v. Cohn (86 N. Y. 11), and preceding cases therein referred to, not assignable by her, and that she had the right to avoid the assignment made by her to Martin Kupfer on the 16th of September, 1875. That, consequently, the subsequent assignment made by Kupfer, with her consent, on the 17th of August, 1876, to the defendant Demond, and the surrender by him to the company on the 9th of January, 1877, were not binding upon her.

The learned counsel for the insurance company contended that the policy was not taken out under the act of 1840, and was not within the decisions holding such policies to be nonassignable, for the reasons that the contract of insurance was with the wife and that she paid the first premium, as appears from the recital in the policy, and that the husband paid none of the premiums out of his own funds.

There is no finding that the premiums, subsequent to the first, were paid by the wife, or that they were not paid by the husband, nor was there any request to find such facts. The only finding with respect to who paid the premiums, other than the last two paid, is that the policy was issued to the plaintiff in consideration of the sum of $178.50, duly paid to the company by the plaintiff, and of the quarter annual payment of a like amount on certain days during the continuance of the policy.

The only evidence on that point on the trial, in addition to the recital in the policy, was the testimony of the plaintiff’s husband, who stated that he paid the premiums himself for his wife up to April, 1876, but on cross-examination he said he could not recollect whether or not they were paid by his wife’s father out of his own money. The premiums due in July and October, 1876, are found to have been paid by the defendant Demond.

The act of 1840 (Chap. 80) is not confined to cases where the premiums are paid by or out of the funds of the husband. As originally enacted it authorized any married woman to cause to be insured, for her sole use, the life of her husband, and provided that the amount of insurance when due should be payable to her, free from the claims of the representatives of the husband or of any of his creditors, but that such exemption should not apply where the amount of premium annually paid should exceed $300. But by the act of 1858 (Chap. 187) this condition of the exemption was confined to cases where the premium, exceeding $300, was paid “out of the funds or property of the husband,” clearly implying that the act contemplated their being paid from some other source; and by the act of 1877 (Chap. 277) the condition was further modified so as to provide merely that where the amount of premium paid out of the funds or property of the husband should exceed $500, the excess should inure to the benefit of the creditors of the husband. In Eadie v. Slimmon (26 N. Y. 9), the leading case upon this subject, and in most of the cases which have followed it, the same feature appears to which the counsel refer as taking the present case out of the principle of those cases. The policy in Eadie v. Slimmon recited the payment by the wife of the premium for the first year, and that recital does not appear to have been controverted in any manner, and in none of the cases in this court is the question whether the premium was paid by the husband or the wife treated as material.

In Wilson v. Lawrence (8 Hun, 593 ; S. C., 13 id. 228, 241) it was deemed by the Supreme Court material to inquire by whom the premiums were paid. The ipolicy contained the same recital, and, so far as appeared when the case first came before the court at General Term (8 Hun, 593), the wife had paid the premiums. On this ground the court held that the policy, being valid at common law, was not issued under the statute, and that her assignment of it to the plaintiff was good, to the extent of securing the repayment to her assignee of the sum paid by him on the assignment. On a new trial it was proved and found, notwithstanding the recital in the policy of the payment of the first premium by the wife, that in fact all the premiums had been paid by the husband, and on that ground the policy was held to be non-assignable. (S. C., 13 Hun, 238, 241.) The judgment was affirmed in this court (S. C., 76 N. Y. 585), but the supposed distinction was not considered here.

The argument of counsel is that inasmuch as at common law the wife had an. insurable interest in the life of her husband (a point which had not been decided by this court at the time of the decision in Eadie v. Slimmon), an insurance thereon for her benefit, where the premiums were paid out of her separate estate by her or her trustee, would be valid, and would be protected against the creditors of the husband, independently of the statute; therefore, that in such a case a policy taken out by her, especially where, as in this case, it contained no reference to the statute, was not taken out under the statute, and was assignable by her.

We think the court has gone too far in the other direction to ' justify it in establishing this distinction now. The rule that such policies were'not assignable, was not derived from any provision of the statute, but was established by the decisions of the court, and has been steadily adhered to. In the case in which it was first promulgated (Eadie v. Slimmon, 26 N. Y. 9) the case discloses, as has already been stated, that the contract of the company was with the wife, and the first premium was paid by her, and the decision has been followed in many subsequent cases. In 1873 the doctrine of those cases was recognized by the legislature by conferring upon married women the power to assign their policies, when they had no children, on complying with certain formalities (Laws of 1873, chap. 341), and in 1879 full power to assign was conferred upon them without those conditions, provided the husband consented to the assignment. (Laws of 1879, chap. 248.) We are not disposed at this late date to introduce the distinction claimed, although it is sustained by forcible arguments.

It is further argued that inasmuch as it has been decided by this court in Smillie v. Quinn (90 N. Y. 492) that a policy taken out by a wife on the life of her husband is not liable, even for the debts of the wife, and the amount of premiums which may be paid otherwise than out of the funds of the husband is unlimited, a married woman having property might place such property beyond the reach of her own creditors by investing it in effecting insurance to an extravagant amount on the life of her husband. It seems from the report of the case of Smillie v. Quinn in the Supreme Court (25 Hun, 334) that it was found as a fact that the premiums were paid with the funds of the husband, and that fact was made one of the grounds upon which that court held the proceeds of the policy not liable for the debts of the wife. In this court (S. C., 90 N. Y. 492) that circumstance is not relied upon, and the decision is placed upon the grounds that the wife alone had the right to avoid the assignment, and reclaim the policy, and that she could not be compelled to do so, and that a receiver appointed in a proceeding instituted by her judgment'Creditors had no such right. It was also held in that case that her assignment was not fraudulent as against her judgment creditors under the circumstances of that case. But should such a case arise as is supposed in the argument of counsel, it would present questions which are not concluded by the decision in Smillie v. Quinn, and which are not presented in the case now before us. It is sufficient to say that the non-assignability of such a policy at the time the assignment now in controversy was made, did not depend upon the question whether the premiums were paid by the husband or by the wife, or by a third person. Since then all such policies have been made assignable by the wife with the consent of the husband. (Laws of 1879, chap. 248.)

But although we hold that the plaintiff was protected by the principle established in Eadie v. Slimmon, and subsequent cases, and that the result was that she had the right to avoid her assignment and reclaim her policy, as is held in Smillie v. Quinn (90 N. Y. 492), it does not follow that she has established in this case any right of action against the defendant, the insurance company. She certainly cannot claim under the policy, for she has failed to perform its conditions. This was held by the court below, and, as we think, correctly. The condition* of the policy was- that if the premiums thereon should not be paid when due, the policy should cease and determine. It is found by .the trial court that the premium falling due on the 21st of January, 1877, was not, nor was any subsequent premium paid to the company, and that on the 21st of January, 1877, the policy and all the right of the plaintiff therein became lapsed and forfeited, and all payments thereon became forfeited to the company. It is also found that the thirty days’ notice required by chapter 341 of the Laws of 1876 had been given by the company to the plaintiff. These facts preclude any recovery by her on the policy. As between her and the company she was placed in no better position in this respect by her assignment of the policy and its surrender by her assignee, than she would have been in if she had retained the policy. She had 'the right to avoid her assignment and reclaim her policy, and if she had tendered the premium to the company it would have been its duty to accept it. ¡Nothing had been done to prevent that course being pursued. The fact is found that when the policy was surrendered to the company by the defendant Demond, the company attached to it his receipt for the sum paid him, and stamped ón the back of the policy the words : “ Paid January 9, 1877,” and has ever since retained possession of the policy so canceled. There was nothing in all this which prevented the plaintiff, had she desired to avoid her assignment, from so notifying the company, and paying or tendering the premiums as they fell due, and, in the absence of such tender, it is not to be presumed that the company would have refused to accept them.

On these grounds the court below held that the plaintiff was not entitled to require the company to issue a paid-up policy pursuant to t-he provisions of the original policy, but found as a conclusion of law that the plaintiff was entitled to recover, both of the company and Demond, the sum of $2,979.42, with interest, less $357 for premiums paid by Demond, the balance being the amount paid by the company to Demond on the 9th of January, 1877, when he surrendered the policy.

In the conclusions of law set forth in the decision of the court, the ground of this recovery is not stated. There is no finding of the conversion of the policy by either Demond or the company, nor is -there any finding or any allegation in the complaint, or any proof that it was ever demanded of either. The finding is that no demand was made of Demond. But in the opinion of the learned trial judge he states that he holds the facts to be sufficient to render the defendants liable for a conversion of the plaintiffs property.

The complaint, after setting forth the policy and the assignment from the plaintiff to Kupfer as collateral security for a loan from him to the plaintiff’s husband, and the assignment from Kupfer to the defendant Demond, alleges that Demond, in some manner unknown to the plaintiff, delivered up the policy to the company, who thereupon paid him therefor the sum of $2,970.42, and canceled .the policy, and has ever since retained possession of the same so canceled. That the policy was not assignable by the plaintiff, who had no power to assign the same, and in law she was still entitled to the same and all benefit and advantage thereof as if she had never assigned the same to any one, and she demanded as relief judgment against the defendants for the sum of $5,333, or whatever sum might be the surrender-value of the policy, with interest from January 9, 1877, or that the company be adjudged to issue to her a paid-up policy as provided in the original policy.'

Dnder this complaint, which sets forth a causé of action ex contractu, it is difficult to see how a recovery can be had for a cause of action ex delicto, or how in the face of the claim that the plaintiff is still entitled to the same benefit and advantage from the policy as if she had never assigned it, she can recover on the ground that either of the defendants has converted it.

But so far as the defendant, the insurance company, is concerned, there are further insuperable difficulties in the way of sustaining an action for conversion. In the first place, the possession of the policy by the defendant Demond was lawful until the plaintiff elected to avoid 'her assignment and reclaim her policy, and, until she did so reclaim it, neither of the parties was guilty of a wrong in holding it, and further, what was done by the company did not amount to a conversion.

■ The mere receipt of the policy from Demond, who stood in the place of her assignee, and the payment to him of the surrender value and marking the policy canceled, before any electian on her part to avoid the assignment, and retaining the policy in their possession, was no violation of her rights and did not impair them, as she herself avers in her complaint, in which she states that the policy is still in the possession of the company, and that she is entitled to the same benefit and advantage thereof as if she had never assigned it. The loss of her claim against the company is due, not to the surrender of the policy, or its cancellation, but to her failure to keep it alive by the payment of premiums, and this failure was in no manner attributable to the acts either of Dernond or of the company.

It is in this respect that the present case differs decisively from Whitehead v. N. Y. Mutual Ins. Co., recently decided. In that case we held that the non-payment of the premiums after the surrender of the policy, was occasioned in part by the wrongful act of the company in accepting a surrender from one having no authority to represent the assured, and that the insurance company participated with the husband in keeping the wife and children in ignorance of their rights. In the present case accepting the- surrender was not, as we have said, a wrong to the plaintiff, nor was she in any manner kept in ignorance of her rights, or prevented by any act of the company from continuing her payments, nor had the company, in the case last cited, given to the assured the notice required by the act of 1876 (Chap. 341), and which was essential to entitle it to terminate the policy.

In the recent case of Martin v. Tradesmen's Ins. Co., (101 N. Y. 498), we held that where an insurance company had issued a policy to M. & K. upon a steamboat, loss payable to the H. & JEL Company who were mortgagees, and afterward at the request of a third person, presumed to represent the mortgagees, the company altered the policy by drawing a line through the names of M. & K., and interlining in then* place the name of J. G. as the assured, and interlining after the names of the mortgagees, the words “ to the extent of their interest and balance, if any, to I. G.,” leaving, however, the original language of the policy legible, and returned the policy thus altered to the person who had requested the alteration, the rights of the parties were not impaired, and. they could not maintain an action against the company as for a conversion of the policy. This decision shows that the mere stamping of the policy paid ” in the present case, leaving it in other respects in its original condition, did not impair the rights of the plaintiff, and that she sustained no damage therefrom.

For these reasons, and there being no theory other than that of conversion upon which the company can be held liable,, the judgment against the Mutual Life Insurance Company should be reversed.

The cause of action against the defendant, Demond stands upon a different footing. We do not think that under the pleadings a recovery in tort for a conversion can be sustained against him, but they are properly framed to sustain an action for money had and received, and the judgment against him conforms to that theory, being for the precise sum received by him from the company less the premiums paid by him with interest. He was in possession of the policy under a title which, as we have already shown, was invalid and avoidable at her option. While so in possession and while the policy was still in force, he surrendered it and received therefor the sum for which judgment has been rendered against him.' Whether or not these acts constituted as to him a conversion of the policy is immaterial, for even if they did, she could waive the tort and adopt his acts as having been performed for her benefit. Her right to avoid the assignment could be exercised as well after as before his receipt of the avails of the policy, and the bringing of this action against him was a sufficient election to avoid the assignment and adopt his act in receiving the avails. It is true that he paid for the assignment from Kupfer in August, 1876, the amount which Kupfer had advanced in 1875, and which as is found went to the use of plaintiff’s husband, and that the plaintiff slept upon her rights until 1881, when this action was brought, and she elected to repudiate her acts on the faith of which the defendant advanced his money. But the period not being sufficient to bar her claim by the statute of limitations, we see no ground upon which we can deny to her the protection against her own acts which is afforded her by Eadie v. Slimmon and like cases.

The exception taken by the defendant Demond to the exclusion of evidence that in August, 1876, when he paid the premium due July 21, 1876, the secretary of the insurance company informed him that the policy had lapsed, but that if he, Demond, would pay the premiums already due, the company would revive the policy for his benefit alone, was not in our judgment well taken. Mo new policy was issued to Demond, and the existing policy could not be.revived and at the same time converted into an insurance in favor of Demond alone. If it was forfeited and the acceptance of the premium from Demond was a waiver of the forfeiture and revival of the policy, the assured was entitled to the benefit of such waiver and revival. But there was no proof that it had been forfeited at that time, as it does not appear that the thirty days’ notice required by chapter 341 of the Laws of 1876, had then been given. If the policy had been forfeited, a waiver of the forfeiture would necessarily inure to the benefit of whoever was entitled to the policy.

The judgment should he affirmed, with costs as to the defendant Demond, and reversed as to the defendant the Mutual Life Insurance Company of Mew York, and new trial granted, with costs to abide the event.

All concur.

Judgment accordingly.

        Ante, p. 143.