text:
    WILLIAM A. SWEET, Appellant, v. THE CITY OF SYRACUSE and Others, Respondents.

      When the subject of a local bill is sufficiently expressed in its title — the provisions of the Constitution, limiting the term of water bonds to twenty years apply only to cities of over one hundred thousand inhabitants — what is a local bill appropriating public property to local purposes and requiring a two-thirds vote of the legislature.

    'The title of chapter 291 of the Laws of 1889, entitled “An act to establish and maintain a water department in and for the city of Syracuse,” sufficiently expresses the purpose of said bill, which was to furnish said city with water, and does not violate the provisions of the State Constitution (art. S, § 16) requiring the subject of a local or private bill to be expressed in its title.

      The provisions of the Constitution (art. 8, § 11), declaring that the term of bonds-issued by a city for a supply of water shall not exceed twenty years, and requiring the creation of a sinking fund for their redemption, apply only to a. city of over one hundred thousand inhabitants.
    In 1843 the canal board, which was duly authorized so to do, adopted a resolution “that the waters of Skaneateles lake, and the outlet of the same, be and they are hereby appropriated to the use of the public for a reservoir and feeder to-the Erie canal.” A dam was built b}r the canal board, which assumed control of the flow of the lake, the bed of which, so far as appeared, belonged to the State. The waters not necessary to the canal supply were conducted ofi beneath the canal and were thereafter allowed to flow in their natural channel.
    In an action brought by a taxpayer to test the validity of chapter 291, Laws of 1889, as amended in section 18 thereof by chapter 314, Laws of 1890, granting, lipón conditions therein stated, to the city of Syracuse the right to use the surplus waters of said lake:

      Held, that the action of the canal board was an absolute and permanent appropriation by the State to its use of all the waters of said lake.
    That said section 18, as amended by the act of 1890, was an act in impairment, of the previous complete ownership of the State in said waters.
    That said act of 1890 was, therefore, a bill appropriating public property for local purposes, and, not having received the assent of two-thirds of each branch of the legislature, required in such case by article 1 of section 9 of the Constitution, it. was void and said section 18 as amended was consequently invalid.
    Appeal by the plaintiff William A. Sweet upon a case and exceptions from a judgment, entered in the cleric’s office of Onondaga, county on the 10th day of December, 1890, in favor of the defendants, after a trial by the court at the Onondaga Special Term.
    Action by the plaintiff, as a resident and taxpayer of the city of Syracuse, to have declared unconstitutional, inoperative ■ and void chapter 291 of the Laws of 1889, entitled “An act to establish and maintain a water department in and for the city of Syracuse,” and also chapter 314 of the Laws of 1890, which amended section 18 of the act of 1889; and to restrain the defendants from doing any act in furtherance or consummation of the scheme or plan of those acts.
    By the act of 1889 the mayor of the city of Syracuse was directed to appoint a board of water commissioners to be known as the “ Syracuse Water Board.” This board was authorized and directed “ for and in the name of the city of Syracuse, to acquire, construct, maintain, control and operate a system of water-works to furnish the city of Syracuse and its inhabitants with water from Skaneateles lake.” It was authorized also to purchase and acquire by deed or otherwise all lands, waters or other property “ necessary for the acquisition, construction, maintenance, control and operation of said water-works,” and to acquire the rights and property of any existing corporation or company organized to supply the city of Syracuse and its inhabitants with water and to maintain and operate the same, the title ■of all property acquired to vest in the city. The power to exercise the right of eminent domain was conferred, and the manner of its exercise provided for. Section 18 of the act was as follows :
    “§ 18. The Syracuse water-board, by and with the consent of the ■canal board, is hereby authorized and empowered to appropriate so much of the waters of Skaneateles lake as may be necessary to supply the city- of Syracuse and its inhabitants with water; upon the express condition, however, that the city of Syracuse shall, when so required by the canal board, furnish from such source or sources, and in such manner as the canal board may designate, as much water for the use of the Erie canal as shall be taken by the city from Skaneateles lake, and the power granted in this act shall be ■deemed to include authority and power to provide such compensating water supply for the Erie canal, and to do and perform all those ■acts and things which shall be needful to acquire for said city and 'its inhabitants the waters of Skaneateles lake.”
    Provision was made for the issuing by the city, whenever the board considered it necessary, of bonds to an amount not exceeding in the aggregate the sum of $3,000,000, all payable on July 1,1920, bearing interest semi-annually; the proceeds of these bonds to be used by the board “ solely for the acquisition and construction of the system of water-works herein provided for, and for the purpose of acquiring property, rights, privileges and franchises therefor, or to be used in connection therewith, and for providing a compensating water supply for the Erie canal as specified in section eighteen of this act.” No sinking fund was provided for.
    The consent of the canal board, called for by section 18, was not given, and thereupon the act of 1890 was passed, which amended section 18 so as to read as follows :
    “§ 18. The Syracuse water-board is hereby authorized, imder the. restrictions and conditions hereinafter mentioned, to take and conduct water, not required for the Erie canal, from Skaneateles lake to said city, through a pipe or main not exceeding thirty inches in diameter, for the purpose of supplying said city and its inhabitants with water. Before any water shall be so taken, however, the water board shall, at the cost and expense of said city, increase the storage capacity of said lake sufficiently to store therein all the ordinary flow of its water-shed; the fact of such necessary reconstruction having been made shall he certified by the state engineer and surveyor and superintendent of public works and filed in the office of superintendent of public works. All the work authorized by this section, including the placing and maintenance of said pipe, shall be executed under the direction, supervision and control of the superintendent of public works, and in accordance with the plans and specifications therefor to be prepared or approved by the state engineer and surveyor. The dam and all structures connected therewith, together with the regulation at ail times of the flow of water from said lake into the aforesaid pipe, shall be and continue in the exclusive charge and control of the superintendent of public works, and shall be maintained and kept in repair by or under the direction of said superintendent at the cost and expense of the city of Syracuse. This section shall be construed to vest in the state engineer and surveyor the power to prescribe the plan of construction and location of the gate-house or other means for delivering the water of said lake into said pipe; and if for any reason the flow of water into said pipe shall prevent the State from having a sufficient quantity for all the uses of the Erie canal, the said superintendent of public works is authorized and required to stop the flow of water into said pipe, in whole or in part, so far as may be necessary in his judgment to secure such sufficient quantity; it being understood that the rights of the city of Syracuse hereby conferred in, and to such surplus waters, are to be subject always to the superior claims of the State thereto. Before any water shall be taken from Skaneateles lake, under the provisions of this act, the city of Syracuse shall acquire or extinguish all water-power rights upon the outlet of said lake to be affected by the proposed storage of water. The city of Syracuse shall at all times protect and save harmless the State of New York from and against all claims and demands of riparian owners upon said lake and outlet for loss or damage occasioned by any act or structure authorized hereby. The powers granted to the Syracuse water board to acquire property under this act, and to make payment therefor, shall be deemed, to include full power and authority to do and perform all acts and things necessary or proper to enable said city to acquire, store and obtain water from Skaneateles lake in accordance with the provisions of this section.”
    Neither of the acts received the assent of two-thirds of the members elected to each branch of the legislature.
    It was claimed by the plaintiff in his complaint, and at the trial, that the Skaneateles lake and outlet were a reservoir and feeder of the Erie canal and a part thereof, and that the acts above referred to, in assuming to grant to the city of Syracuse the waters of said lake and outlet, were in violation of the provision of the Constitution which forbade the sale, lease or disposition of the Erie canal; that said acts were also in violation of that provision of the Constitution that forbade any appropriation of tlie public moneys or property for local or private purposes without the assent of two-thirds of the members elected to each branch of the legislature; that the provision for issuing bonds was unconstitutional as the term of payment exceeded twenty years and no sinking fund was provided; that the title of the acts was insufficient on the ground that the subject was not adequately expressed. As to all of these propositions the court ruled against the plaintiff and an exception was duly taken.
    The plaintiff also claimed, and there was evidence on the subject, that the plan of obtaining water from Skaneateles lake was inadequate, improvident and wasteful.

      Charles H. Pech and George F. Gomstock, for the appellant.

      G. L. Stone, W. A. Beach and W. P. Gannon, for the respondents.
   Merwin, J.:

The plaintiff in this case seeks a remedy under the provisions of section 1925 of the Code of Civil Procedure, as supplemented by chapter 531 of the Laws of 1881 and chapter 673 of the Laws of 1887. Under these statutes it was held by the Court of Appeals, in Talcott v. City of Buffalo (26 N. E. Rep., 263; 34 N. Y. St. Rep., 871), that the remedy was confined to cases where the acts complained of are without power, or where corruption, 'fraud, or bad faith amounting to fraud, is charged, it being said that the terms waste ” and injury ” used in the statute, comprehended only-illegal, wrongful or dishonest official acts, and were not intended to’ subject the official action of boards, officers or municipal bodies, acting within the limits of their jurisdiction and discretion, but which some taxpayer might conceive to be unwise, improvident or based on errors of judgment, to the supervision of the judicial tribunal.”

Upon this basis, the questions in this case are :

1. Whether the act of 1889 is unconstitutional, by reason of its. title, as in violation of section 16, article 3 of the Constitution,, which provides that no local or private bill shall embrace more than, one subject, and that shall be expressed in the title.

2. Whether the provisions in the act of 1889 for the issuing of bonds are invalid, under section 11 of article 8 of the Constitution of this State, by reason of the term of the bonds exceeding twenty years and the absence of any provision for a sinking fund.

3. Whether section 18 of the act, as amended in 1890, is in violation of section 6 of article Y of the Constitution which provides that the legislature shall not sell, lease or otherwise dispose of the Erie canal, or is in violation of section 9 of article 1 of the Constitution, which provides for the assent of two-thirds of each branch of the legislature to every bill appropriating the public moneys or property for local or private purposes.

1. The title of the act of 1889 is “ An act to establish and maintain a water department in and for the city of Syracuse.” The claim is that this does not adequately express the subject of the act,, which is to supply the city of Syracuse with -water.

In People ex rel. City of Rochester v. Briggs (50 N. Y., 554) it was held that the title, “ An act to amend the several acts in relation to the city of Rochester,” expressed a subject broad enough to embrace all the details of the charter and government of the city of Rochester. In Astor v. Arcade Railroad Company (113 N. Y., 93, 110) it is said : “ When the subject is expressed, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germane to the title. The title must be such, at least, as fairly to suggest or give a clue to the subject dealt with in the act, and unless it comes up to this standard it falls below the constitutional requirement-.” In Cooley on Constitutional Limitations (172; 5 th ed., 174) it is said : “ The generality of a title is, therefore, no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary and proper connection. The legislature must ■determine for itself how broad and comprehensive shall be the object of a statute, and how much particularity shall be employed in the title in defining it.”

Within these rules, the title in question was sufficient. A wrater ■department, as that expression is ordinarily understood to mean, could not be established and maintained without a supply of water. The obtaining of such supply would, therefore, be within the scope of the subject as expressed in the title.

2. Section 11 of article 8 of the Constitution is as follows:

“Sec. 11. No county, city, town or village shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation ; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. This section shall not prevent such county, city, town or village from making such provision for the aid or support of its poor as may be authorized by lawn No county containing a city of over one hundred thousand inhabitants, or any such city, shall be allowed to become indebted for any purpose or in any maimer to an amount which, including existing indebtedness, shall exceed ten per ■centum of the assessed valuation of the real estate of such county ■or city subject to taxation, as it appeared by the assessment-rolls of ;said county or city on the last assessment for State or county taxes prior to the incurring of such indebtedness; and all indebtedness in excess of such limitation, except such as may now exist, shall be absolutely void except as herein otherwise provided. No such county or such city, whose present indebtedness exceeds ten per centum of the assessed valuation of its real estate subject to taxation, shall be allowed to become indebted in any further amount until such indebtedness shall be reduced within such limit. This section shall not be construed to prevent the issuing of certificates ■of indebtedness or revenue bonds issued in anticipation of the collection of taxes for amounts actually contained, or to be contained, in the taxes for the year when such certificates or revenue bonds are issued and payable out of such taxes. Nor shall this section be construed to prevent the issue of bonds to provide for the supply of water, but the term of the bonds issued to provide for the supply of water shall not exceed twenty years; and a sinking fund .shall be created, on the issuing of the said bonds for their redemption, by raising annually a sum which will produce an amount equal to the sum of the principal and interest of said bonds at their maturity. The amount hereafter to be raised by tax for county or city purposes, in any county containing a city of over one hundred thousand inhabitants, or any such city of this State, in addition to providing for the principal and interest of existing debts, shall not in the aggregate exceed in any one year two per centum of the assessed valuation of the real and personal estate of such county or city, to be ascertained as prescribed in this section in respect to •county or city debt.”

The claim of the defendants is that the provision as to bonds issued to provide for the supply of water, applies only to cities containing over one hundred thousand inhabitants. The claim of the plaintiff is that the provision is general and applies to all cities. It is conceded that the city of Syracuse has less than one hundred thousand inhabitants.

Section 11, as it now stands, was adopted in November, 1884. It was made up of section 11, as it existed prior to that date, adding thereto the provisions commencing with the words, “No county containing a city of over one hundred thousand inhabitants, or any such city,” etc., to the end of the section. So that, prior to 1884, no county, city, town or village could give any money or property, •or loan its money or credit, to or in aid of any individual or corporation, or incur any indebtedness except for county, city, town or village purposes. An exception was made in favor of the poor, .apparently upon the idea that the general inhibition of gifts of money or property to or in aid of any one would, unless qualified, include the poor. Under the section as it then stood, as applicable to all cities, there was. unlimited power in the legislature to authorize them to incur indebtedness, except only it must be for city purposes. The amendatory clauses of 1884 restricted this general legislative power by providing that no city of over one hundred thousand inhabitants should be allowed to incur indebtedness for any purpose beyond a certain limit. Then came the provisions: “ This section shall not be construed to prevent the issuing of certificates” in certain cases; “ nor shall this section be construed to prevent the issue of bonds to provide for the supply of water,” etc. These limitations of construction both had reference to some limitation of power, and the only limitation on the subject was that having reference only to the large cities. The power as to the smaller cities remained unlimited. There was no occasion to enlarge it. It is conceded that the furnishing of a water supply is for city purposes.

It would seem, therefore, that the provision as to water-bonds had reference only to those large cities whose right to incur debts was limited. They were the only ones to be benefited by the reservation or privilege, and the burden is no more extensive than the benefit conferred. In fact, it is quite apparent that all the amendatory clauses had reference only to the described class of cities.

J3ut it is said that there is no more reason for limiting the term and providing a sinking fund in case of bonds of large cities than of smaller ones. That may be so. And so it may be said with as. much reason that smaller cities should be limited in the amount, of their indebtedness to the same extent as larger ones. It is not. done, however. And the same reason that would allow this to so. remain, would allow the power as to water bonds to be unlimited. The question for us is, what is the fair construction of the section, having in view the circumstances of its adoption. We, therefore,, conclude that the limitation as to water bonds does not apply to the present case.

3. Does section 18 of the act, as amended in 1890, appropriate the public property for local or private purposes ? It is conceded that the law did not have the two-thirds assent required by the Constitution, and it was a local act. (People v. O’Brien, 38 N. Y., 194.) This is not disputed. Was there an appropriation of public property ?

The city, through its water board, was authorized to take and conduct, from Skaneateles lake, water, not required for the Erie canal, through a pipe not exceeding thirty inches in diameter. Before doing this, however, the city must increase the storage capacity of tlie lake sufficient to store therein all the ordinary flow of its water-shed, and must acquire or extinguish all water-power rights upon the outlet of the lake to be affected by such storage. The work authorized by the section must be done under the direction and control of the Superintendent of Public Works, and in accordance with plans and specifications prepared or approved by the State Engineer, and the dam and all structures connected therewith, and the regulation of the flow of water from the lake into the pipe must continue in the exclusive charge and control of such superintendent, and shall, by or under his direction, be maintained and kept in repair at the expense of the city. If for any reason the flow of water into the pipe should prevent the State \ from having a sufficient quantity for all the uses of the Erie canal, the superintendent was authorized and required to stop such flow in whole or in part, so far as might be necessary in his judgment to secure such sufficient quantity, “ it being understood that the rights of the city of Syracuse hereby conferred, in and to such surplus waters, are to be subject always to the superior claims of the State thereto.” The board was given full power to do and perform all acts and things necessary or proper to enable the city to acquire, store and obtain water from the lake in accordance with the provisions of the section. In substance, the city was given the surplus waters as such surplus might be determined by the State officers, without reference to whether such surplus was greater or less than the additional storage to be furnished at its expense.

The expression “superior claims,” used in the clause above quoted, had reference only to the claims of the State of water for the use of the canal, evidently contemplating that there was and would be a surplus which would be obtained by the city. The city was also given the right or privilege of using the lake as a means of storage of its additional waters, any right to or in which, of any riparian owner upon the lake or outlet it was bound to extinguish.

Skaneateles lake, as the case shows, is a body of water about fifteen miles long, with a general width of about one mile, having a surface area of about thirteen square miles. It is located about seventeen miles from Syracuse, and is about four hundred and fifty-three feet above the level of the Erie canal at the Jordan level. It has a watershed, including the surface of the lake, of seventy-three and one-quarter square miles and discharges its water through an outlet, known as Skaneateles creek, northerly into the Seneca rivei1, distant between ten and eleven miles. The lake has been for many years navigated by steamboats and other craft, but there is no navigable communication between it and any other waters.

There is no direct evidence as to the ownership of the bed of the lake. It was conceded at the trial, and is found, that the patents issued by the State for the lands surrounding the lake, designate by lot numbers the lands conveyed, and do not describe the same by metes and bounds; and that the original surveyor’s field notes of the lots show the shore lines of the lake as bounding lines thereof. Assuming, as we probably may, that the State was the original owner of the whole, its patents carried the title to low-water-mark, according to the rule laid down in Wheeler v. Spinola (54 N. Y., 377). That would leave the State the owner of the bed below low-water-mark.

The State, from the first construction of the Erie canal, had used a portion of the waters of the lake to supply the canal. Prior to 1843 a further supply was found to be necessary, and, therefore, on the 29th of June, 1843, the canal board of the State, as they were 'authorized by law to do, adopted a resolution: “ That the waters of Skaneateles lake, and the outlet of the same, be and they are hereby appropriated to the use of the public for a reservoir and feeder to the Erie canal,” and the Canal Commissioners were directed to make the improvements ' necessary to carry the resolution into effect. From the map of the appropriation it appears that at the foot of the lake lands were taken which included the dam and water rights at that point. No question is made, as I understand the case, about the legality of the appropriation as made by the resolution of the Canal Board. The point is as to the extent or effect of such appropriation. From that time the State maintained a dam at the foot of the lake, and now the flow of water from the lake at that point is regulated by a dam nine feet high, containing gates through which the water is permitted to flow into the outlet, and these gates, since 1843, have been under the management of an employee of the State. About nine miles below the foot of the lake, at the village of Jordan, a dam has been constructed across the outlet, by means of which a portion of the flow from the lake is discharged into the canal. An aqueduct constructed under the canal permits the flow of that part of the stream not used for canal purposes beneath the canal and on to the Seneca river through its natural channel. Upon the outlet and between the lake and the canal are situated numerous mills deriving their power from the use of the waters of the outlet, and these are the powers referred to in the act of 1890. During the time, in every year, when the canals are closed a volume of water has been permitted to flow through the gates of the dam at the foot of the lake for the use of mills along the outlet, except for several periods in different years when the water was held back either for purposes of repair or to increase the storage in the lake. The quantity of water thus ordinarily permitted to flow during the closed season of navigation amounts, as the court below found, approximately to about fifty million gallons per day. This water has never been utilized by the State for canal purposes. The carrying capacity of the thirty-inch pipe authorized to be laid is found to be 15,000,000 gallons per day, and the drawing of that amount per day would be equivalent in one month to two inches in depth from the surface of the lake.

These are the main facts upon the subject. The theory of the defendants is that by the appropriation of 1843 the State only acquired the right to so much water as might be required for the uses of the canal, that the balance belongs to the riparian owners and that, therefore, the statute in question did not give to the city any property of the State. The theory of the plaintiff is that the appropriation in 1843 was a permanent one and passed the fee to the State, and the act, which gave the city an interest in it, appropropriated to that extent public property to the use of the city.

The appropriation of 1843 was, in form, permanent and absolute. In this respect it differs from the case of Silsby Manufacturing Company v. State (104 N. Y., 562), where the State possessed only the rights of the Seneca Lock Navigation Company, and those were expressly limited to the usei of only so much as was necessary for the purposes of navigation, and upon that ground a liability for waste was held to exist against the State.

There is no doubt that, in fact, this was a permanent appropriation, and in such a case, as said in Heacock & Berry v. State of New York (105 N. Y., 248), under the Revised Statutes then in force (1 R. S. [§§ 46, 48], pt. 1, chap. 9, tit. 9 [4th ed.], 484), it was provided that the State should take a fee, and unless the landowner applied for compensation within one year his right should be deemed extinguished. (See, also, Mark v. State, 97 N. Y., 572.) In such a case, if the use for the purposes of a canal was abandoned the property would not revert. (Rexford v. Knight, 11 N. Y., 308; Genesee Valley Canal R. R. Co. v. Slaight, 49 Hun, 37; Cooley on Const. Lim. [6th ed.], 688.)

If the statute authorized the entire ownership to be taken, and the appropriation followed the statute, the fact that all might not be needed for the use of the canal would not reduce the extent of the right taken. In Sweet v. Buffalo, New York and Philadelphia Railway Company (79 N. Y., 293) it was held that a fee may be taken, although the public use for which the land is to be taken is special, and not of necessity permanent or perpetual, and that when a statute authorizes the'taking of a fee it cannot be held invalid, or that an easement only was acquired thereunder, on the ground that an easement only was required to accomplish the purpose in view.

It is also to be borne in mind that in 1843 there was a statute (R. S., pt. 1, chap. 9, tit. 9 [§ 75 et seq.~\, 4th ed., p. 492) providing for the sale of surplus waters, thus indicating that the appropriations of that character were not simply of so much as was necessary for the uses of the canals.

It seems to me, therefore, that we must assume that the appropriation of 1843 was not simply of what was required for the Erie, canal, but was just as broad- as the resolution of the canal board made it, “ the waters of Skaneateles lake, and the outlet of the same.” It would then follow that when the act of 1890 assumed to give to the city of Syracuse the right to take waters “ not required for the canal,” it would, if operative, give to the city the benefit of a portion of the title of the State ; in other words, appropriate public property.

Under the appropriation, as made by the Canal Board, the State was entitled to take and have delivered, through the outlet to the point where the State dam at the foot of the outlet is erected, all the flow from Skaneateles lake. The State, at its dam at the foot of the outlet, could either turn the water into the canal or into the Seneca river, or, under the law as it then stood, sell the surplus. Suppose, as claimed by the defendants, that the riparian owners along the outlet had a right to use the water as it passed along, that would not give them any right to divert it and prevent its delivery at the foot of the outlet; and the city, as their grantee, would obtain no such right. No one but the State could give the right to divert. In doing so it would part with a right to property.

There is another feature of the ease which is of some importance on this question. The State, by its appropriation in 1843, and subsequent improvements, became the possessor and owner of a complete reservoir. The act of 1890 gives to the city of Syracuse the right in perpetuity to use this reservoir for the purpose of storage of surplus waters for its benefit. There is thus constituted a kind of dual ownership which, to say the least, is an impairment of the previous complete ownership of the State. The impairment of rights is the taking of property. (Ex parte Jennings, 6 Cow., 525.)

I am not prepared to say that the act of 1890 can be construed to be within that provision of the Constitution which says that the legislature “shall not sell, lease or otherwise dispose of the Erie canal.” In the previous Constitution the provision was that “ the legislature shall never sell or dispose of the said navigable communications, or any part or section thereof.” It is true that by the statute in force in 1846 (1R. S., pt. 1, chap. 9, tit. 9, art. 1, § 1 [4th ed., p. 410]) “ the navigable communication connecting the waters of lake Erie with those of the Hudson river, and all the side-cuts, feeders and other works belonging to the State connected therewith (were known and designated) by the name of the Erie canal.” This would include very likely the Skaneateles reservoir and feeder. Still, the act of 1890 made'the rights of the city of Syracuse subservient to the uses of the Erie canal. It aims to take surplus waters which, though they may belong to the State, would hardly be considered a part of the Erie canal. True it is, too, that certain rights in the reservoir are conferred, but the paramount control for the benefit of the canal is retained. In the future management there might arise opportunity for friction and embarrassment in regard to conflicting claims or wants of the respective parties. Still there is some force in the suggestion that the inhibition upon a sale, lease or disposal of the canal, apparently as an entirety, does not reach the present case.

Be that as it may, I see no way to escape the conclusion that the act of 1890 assumes to appropriate public property to a local purpose, and is, therefore, invalid by reason of the absence of the requisite two-thirds assent of the legislature. Upon this ground the judgment should be modified by inserting a provision, in effect, declaring the invalidity of section 18 of the act of 1889, as amended by the act of 1890, and striking out the award-of costs to the defendants. The appellant should have the costs of the appeal.

Hardin, P. J., and Martin, J., concurred.

Judgment accordingly.


source: Caselaw Access Project

author: Martin, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK v. E. REMINGTON & SONS. In re JAMES A. WHITFIELD, Petitioner, Appellant.

      Receiver — payment of a claim as preferred, under a misdirection of the court — such a payment is not voluntary.

    The receivers of a corporation were, by an order made by the court at Special ■ Term, instructed to pay, and did pay, one Whitfield, a creditor, a certain claim as a preferred one. Upon further application by Whitfield, and other creditors similarly situated, the claims of such parties were declared by the Court of Appeals not to be entitled to a preference. Subsequently the first order of the Special Term as to Whitfield’s claim was vacated.
    Upon the payment to Whitfield of a further claim, made by him as a general creditor, the receivers deducted therefrom the excess theretofore paid to him upon the claim preferred by said first mentioned order.

      Held, that their action was proper.
    That the receivers could not be said to have made the payment of the preferred claim voluntarily.
    That they had been erroneously instructed by the court as to the disposition of the fund; and the misdirection having been corrected they could have compelled Whitfield to restore the amount of the over-payment, and were, therefore, entitled to deduct it from any money due to him.
    Appeal by the petitioner, James A. Whitfield, from an order, entered in the office of the clerk of the county of Herkimer on the 19th day of December, 1890, denying his motion for an order requiring the receivers of the defendant corporation, E. Remington & Sons, to pay to him the sum of $183.31, which amount had been deducted by them from a dividend of twenty-five per cent due-to him as a general creditor of said corporation.

      George 0. Basbach, for the petitioner, appellant.

      Thomas Biohardson, for the receivers, respondents.
   Martin, P. J.:

On April 21, 1886, this court duly appointed Albert N. Russell and Addison Brill as receivers in this action, which was to dissolve the defendant corporation. They subsequently qualified, entered upon their duties and are still such receivers.

The appellant had previously been engaged with men employed by him in working for the defendant in its shops doing job or contract work. It was indebted to him therefor in the sum of $292.78 when the receivers were appointed. There were other persons who-had similar claims.

Soon after the receivers were appointed they applied to a Special Term of this court for instructions as to whether claims like the appellant’s were preferred under chapter 376 of the Laws of 1885, which was an act to provide for the payment of wages to employees, operatives and laborers of domestic corporations, other than insurance and moneyed corporations, of which a receiver should be appointed. The court held that such claims were preferred, and directed them to be paid in full by the receivers. In pursuance of that direction, which was made in May, 1886, the receivers paid the appellant on his claim $256.50, but subsequently declined to pay the remainder, amounting to thirty-six dollars and twenty-eight cents..

After the receivers’ refusal to make further payments on such claim, and in June, 1887, the appellant and others, who had similar claims, instituted a proceeding in this court whereby they sought to-have it adjudged that such claims were preferred under the statute,, and to procure an order requiring the receivers to pay them as such in full. In that proceeding the appellant, and those who joined with him therein, were unsuccessful, as it was held by the Special and General Terms of this court, and by the Court of Appeals, that, their claims were not within the provisions of the statute of 1885,. and not preferred claims under it.

During the pendency of that proceeding, and in March, 1889, th*e Special Term directed the receivers to pay to the general creditors of the defendant, who had proved their debts, a dividend of twenty-five per cent thereon, but also directed that the receivers .should defer the payment of any dividend upon any claim of the appellant, or those who joined with him in such proceeding, until the final determination thereof.

The appellant also had an additional claim, as a general creditor, amounting to $2,930.62.

After that proceeding was finally determined by the Court of Appeals, the receivers paid the appellant on his claim of $2,930.62 the dividend of twenty-five per cent directed to be paid the general •creditors by the order of March, 1889, less the sum of $183.31, being the excess above twenty-five per cent which had been paid by them upon the appellant’s claim of $292.78.

After the decision of the Court of Appeals, by which it was held that the appellant’s claim was not preferred, and before this proceeding was instituted, the order or instructions to the receivers, made in May, 1886, directing such claims to be paid as claims preferred by the statute of 1885, was, on the application of the receivers, vacated and set aside.

On the 9th day of December, 1890, the appellant made application to a Special Term of this court for an order directing the receivers to pay him the sum of $183.31 so deducted, which was ■denied, and from that order this appeal was taken.

The appellant challenges the order of the Special Term upon the ground that as the payment made by the receivers upon his claim of $292.78 was in pursuance of an order of this court, the subsequent decision in other; cases did_ not open, annul or affect his right to the money thus paid, and that the payments by the receivers upon that ■claim were voluntary and could not be recovered back or deducted from the amount of his dividend.

It will be observed that the order or direction to the receivers relied upon by the appellant has been vacated and set aside, and that the action of the court in thus setting it aside was based upon the determination in a proceeding instituted by the appellant upon his alleged preferred claim, in which proceeding it was in •effect held that the order of May, 1886, was unwarranted and improper. That the court under such circumstances should award a restitution of the sum that was thus over-paid upon the appellant’s, demand is quite obvious.

The question of voluntary payment is not, we think, involved in this proceeding. There was in this action a fund in the hands of the court for distribution by its receivers among the creditors of the defendant. The court mistakenly and erroneously instructed the receivers to pay one of the appellant’s claims in full. In a proceeding to which he was a party it was decided by this court and by the Court of Appeals that he was entitled to receive upon his claim for $292.78 only the same proportionate amount as the other general creditors of the defendant. Thus he had been paid $183.31 more than he was entitled to receive. The amount of such over-payment was then deducted from the sum which would otherwise have been his due. This excess having been paid by mistake, the receivers, could have recovered of the appellant the amount thereof. (Matter of Accounting of Morgan, 99 N. Y., 145; Matter of Underhill, 117 id., 471; Scholey v. Halsey, 72 id., 578; Lott v. Swezey, 28 Barb., 87.) It is, therefore, manifest that the sum which the appellant sought to recover in this proceeding did not ex aequo et bono' belong to him. It was a part of the fund in the hands of the court which belonged to the creditors of the defendant, and which should' be distributed among them.

Under these circumstances we think the receivers were justified in withholding that amount, and that the court properly refused to-require them to pay it to the appellant.

It follows that the order appealed from should be affirmed.

Merwin, J., concurred.

Order affirmed, with ten dollars costs.


author: Martin, J.:

text:
    In the Matter of BETSEY ANN MASON, a Supposed Lunatic. BETSEY ANN MASON, Appellant, v. ALANSON HICKS, Respondent.

      lunatic — evidence as to mental capacity — witness obtaining access to the lunatic by improper means — motive of witness as affecting his credibility — medical books.

    Upon the trial of a proceeding in the nature of a writ de lunático inquirendo a physician was allowed to testify that the supposed lunatic had not sufficient mental strength to manage her estate or conduct the business connected with it. Held, that the admission of such evidence was error.
    In such a proceeding it is proper to show, upon cross-examination, that an expert witness testifying against the alleged lunatic, in order to qualify himself as a witness, obtained admission to her house by fraudulent means, without the consent and against the will of those there present, and in the absence of her attending physician, whom these persons desired to have present.
    A witness was allowed to answer a hypothetical question which was based in part upon proved facts, in part upon assumptions and in part upon the testimony of other witnesses.

      Held, error; that hypothetical questions must be based upon facts admitted or established, or which, if controverted, might legitimately be found by the jury.
    Upon such trial the petitioner, upon cross-examination, was asked whether he had not offered to drop the matter if paid a certain sum of money by the alleged lunatic. The question was excluded.

      Held, that the question was competent as bearing upon the credibility of the witness.
    Medical works cannot be read to the jury, nor can experts be asked questions based upon unverified statements made therein by their authors.
    Appeal by Betsey Ann Mason from an order, entered in the Onondaga county clerk’s office on tlie 10th day of April, 1889, denying ber motion for a new trial made upon the minutes of the court; and also from a judgment, entered in said clerk’s office on the 11th day of March, 1889, confirming a verdict, rendered at a trial had in the County Court of Onondaga county before the court and a jury, and appointing a committee of said appellant as a lunatic.
    On the 2Yth day of January, 1888, Alanson Hicks presented to the County Court of Onondaga county the petition by which this proceeding was instituted, asking that a committee of the person and property of the appellant should be appointed, and that a commission should issue out of that court to inquire of the apparent lunacy of the appellant.
    On the petition and affidavits accompanying it, the Onondaga County Court on that day entered an order that a commission in the nature of a writ de lunático inquirendo issue out of that court, directed to Thurston D. Brewster, Esq., to inquire by a jury of the county of Onondaga of and concerning the lunacy of the appellant, and of her capability of managing her property, and that such commission be executed in the town of Marcellus at the residence of the appellant, or at some convenient place near her i’esidence, or at some other place in said town as should be determined by the commissioner.
    In pursuance of such order a commission was duly issued to said Brewster, directing him to inquire by the oath of a jury, whether the appellant was a lunatic with or without lucid intervals, by reason of which infirmity she was incapable of governing herself or managing her affairs or property, and if so, from what time such infirmity dated, and in what manner and how such infirmity had manifested itself, and whether, while in such condition, she had alienated any lands, and if so, to whom and after what manner.
    Thereafter, and on the 23d day of February, 1888, the commismissioner, at the village of Marcellus, in said county, proceeded to execute said commission, and the matter was duly tried before said commissioner and a jury called and sworn in the manner required by law. The trial of said matter continued until March 8, 1888, when it was duly submitted to the jury which, having duly deliberated thereon, rendered its verdict by which it unanimously found that the appellant was sane. The jury was thereupon discharged by the commissioner without its having made, signed or delivered any inquisition.
    Afterwards, and on the 12th day of March, 1888, upon a paper signed by the commissioner, which was called a report, and upon the affidavits of Abel C. Benedict and Truman K. Fuller, a motion was made in the Onondaga County Court to set aside the verdict or inquisition of the jury, and for a new trial in the County Court. That motion was granted, and the issues to be tried were thereupon . settled, and were as follow's:

      “First. Whether Betsey Ann Mason, of the town of Spafford, in the county of Onondaga, is a lunatic with or without lucid intervals, by reason of which infirmity she is incapable of governing herself or of managing her affairs or property, or properly caring for her lands, tenements, goods and chattels.

      “Second. And if so, from what time such infirmity dates, and in what manner and how such infirmity has manifested itself.

      “Third. And whether, while in such condition, the said Betsey Ann Mason has alienated any lands and tenements, or transferred any moneys, securities or personal property; and if so, to what person or persons, when, where and after what manner.

      “Fourth. And also what lands, tenements, goods and chattels are remaining to her.
    “ Fifth. What is the value of the lands and tenements alienated by her; and what is the value of the lands and tenements, goods and chattels by her maintained; and what the issues and profits thereof amount to by the year; and what is the value of all her real and personal estate.

      “Sixth. And who are the nearest heirs and next of kin of the said Betsey Ann Mason; and who would be entitled to her estate in case of her death, and the age of each.”
    The issues as thus settled were afterwards, and on the 6th day of February, 1889, brought to a hearing before a jury at a term of the County Court, held at the city of Syracuse, in and for the county of Onondaga. The jury rendered the following verdict:

      “ Q. Whether Betsey Ann Mason, of the town of Spafford, in the county of Onondaga, is a lunatic with or without lucid intervals, by reason of which infirmity she is incapable of governing herself or of managing her affairs or property, or properly caring for her lands, tenements, goods and chattels ? A. Insane; without intervals. She is incapable by reason of infirmity caused by paralysis of July 11, 1887, to govern herself or manage her affairs, or properly care for her lands, tenements, goods and chattels. Q. And if so from what time such infirmity dates ? A. July 11,1887. Q. In what manner and how such infirmity has manifested itself ? A. By a defective memory; delusion and alienated property. Q. And whether, while in such condition, the said Betsey Ann Mason has alienated any lands and tenements, or transferred any moneys, securities or personal property; and if so, to what person or persons, when, where and after what manner? A. Tes; to Frank Callender; lands and tenements on September 17, 1887; her home in the town of Spafford, by deed; a mortgage of $5,000, and further we cannot say. Q. And also what lands, tenements, goods and chattels are remaining to her ? A. Don’t know. Q. "What is the value of the lands and tenements alienated by her? A. Don’t know. Q. "What is the value of- the lands and tenements, goods and chattels, by her maintained? A. Don’t know. Q. What do the issues and profits thereof amount to by the year ? A. Don’t know. Q. What is the value of all her real and personal estate ? A. Don’t know. Q. And who are the nearest heirs and next of kin of the said Betsey Ann Mason; and who would be entitled to her estate in case of her death, and the age of each? A. Alanson Hicks, Walter Hicks and Mary Ann Callender.”
    On the rendition of the verdict the counsel for the appellant made a motion for a new trial upon the minutes of the trial court, upon the grounds stated in section 999 of the Code of Civil Procedure, and because the verdict was contrary to the evidence, and contrary to law and upon the excejDtions. This motion was denied.
    Afterwards, and on the' 11th day of March, 1889, a judgment or final order was made and entered confirming the verdict of the jury and adjudging the appellant a lunatic, without lucid intervals, and incapable of governing herself and managing her estate or property in a proper manner, and appointing Frederick W. Barker committee of her estate upon his filing a bond, with sufficient sureties to be approved by that court, in the penal sum of $50,000, conditioned for the faithful performance of his duties as such committee in obedience to the order of the court. It was also further ordered that Mary Ann Callender be appointed a committee of the person of the appellant upon her executing and filing a bond, in the penal sum of $2,000, conditioned for the faithful performance of her duties as such committee, in obedience to the order of the court.
    From this order or judgment, and from the order denying the appellant’s motion for a new trial, she appealed to this court. A case and exceptions were settled, which contained all the evidence.
    A motion was made by the respondent to dismiss the appeal in this case on the grounds: “1. That said appeal was brought by George Barrow, as attorney, without legal authority to bring the same. 2. That said appeal was brought after an acquiescence on the part of George Barrow, Esq., in the validity of said proceedings, and in the appointment of a committee of the estate of said lunatic, as shown by the facts recited in the affidavits accompanying this notice of motion. 3. Upon the ground that an appeal is not the proper remedy to dispose of the committee and restore the estate of the lunatic to herself, but that the proper remedy is by application to the County Court for a writ of supersedeas, which writ has been heretofore brought and a hearing had thereon, and such application denied once. Í. That said appeal is not in the interest of said lunatic, bub evidently, from the facts shown, in the interest of one Erancis R. Callender, who has already acquired so large a portion of her estate, to wit, twenty-five thousand dollars and over. 5. That the same attorney should not be heard alleging in one proceeding the invalidity of the decree in lunacy and the appointment of a committee, while in other proceedings he acquiesces in and affirms the same. 6. And upon any other ground which arises legitimately from the papera upon which this motion is made.” This motion was based upon the affidavits of Truman K. Fuller, the respondent’s attorney, and A. Judd Northrup, the county judge before whom the action was tried. Affidavits of George Barrow and of the appellant were read in opposition thereto.

      M. M. Waters and George Barrow, for the appellant.

      T. K. & L. E. Fuller, for the respondent.
   Martin, J.:

An examination of the papers read on the respondent’s motion to dismiss this appeal, has led us to the conclusion that the motion should be denied, and that the appellant should be permitted to prosecute her appeal.

. This brings us to the consideration of the questions involved on the appeal from the order denying the appellant’s motion for a new trial, and from the judgment confirming the verdict and appointing a committee of the person and estate of the appellant. The jury, by its verdict, found that the appellant was Insane; without intervals. She is incapable, by reason of infirmity caused by paralysis of July 11, 1887, to govern herself or manage her affairs, or properly care for her lands, tenements, goods and chattels.” It also found that such infirmity dated from July 11, 1887, and that it manifested itself “ by a defective memory, delusion and alienated property.”

The principal question decided by the jury was, whether the ■appellant was of unsound mind so that she was incapable of governing herself, or managing her property. The question was, whether she was so incompetent at the time of the trial. If it were admitted that, by reason of her sickness, which commenced July 11, 1887, she was for several days or weeks incapable of governing herself or managing her affairs, still, if, at the time of the trial, she had recovered, and her competency was so far restored that she was then able to govern herself and manage her business, she could not be adjudged a lunatic, or deprived of the management of herself, her property •and her affairs.

A careful study of the evidence contained in the appeal-book seems to lead irresistibly to the conclusion that the proof was insufficient to justify the jury in finding that the appellant was at the time of the trial of unsound mind, and incapable of governing herself or managing her affairs and property. While it may be said that there was some evidence that soon after her attack'of paralysis, and during the earlier days of her sickness, she manifested apparent delusions of mind, still the evidence demonstrates quite clearly that they were ■only the delusions or fancies of a sick-bed, and that they passed away as she improved in health and strength. Indeed, when the whole evidence upon the question of such alleged delusions is carefully considered, it is rendered quite doubtful if, even when her disease was at its height, there was any real or substantial delusion ■existing in the mind of the appellant. A delusion is a belief in a state or condition of things, the existence of which no rational person would believe. The evidence to show that the appellant at ■any time really believed any of the pretended delusions is very meagre, to say the least; but perhaps it was sufficient to justify the jury in finding that such delusions existed in the summer of 1887. There was, however, no evidence to show that she had a confirmed ■or continued belief in these delusions, if such they were. Her belief therein, if it ever existed, was only temporary, and passed away as ■she regained her health. We can find nothing in the evidence as to these alleged delusions which was sufficient to justify a finding that the appellant was of unsound mind.

It is also said that the proof disclosed that her memory was defective, and that that was evidence of unsoundness of mind. The alleged defects of memory related to the times when certain occurrences transpired, and to a failure on her part to give correctly the details as to securities held by her, their amounts and the names of the persons against whom they existed. In some of the instances relied upon it is far from certain that the appellant was not correct, and those who testified to the contrary mistaken. In some of those instances the weight of evidence was to the effect that her statement, was correct. Again, when we consider the uncertainty of the human memory, the fact that many persons of sound, and even of brilliant minds, have very defective memories, and when we consider the circumstances under which the most of the statements were made by the appellant, which were relied upon as showing the defect in her memory, we are not at all surprised that she was not able to give every incident of her life, or every incident of which she ever had knowledge, and all her business transactions with accuracy and in detail. Had she been able to do so, we-should have regarded her as possessing a memory of very unusual strength. There was no-proof of any change in the appellant in this respect. That she, prior to her sickness, had a more retentive memory, or a clearer recollection of the transactions inquired into, was not shown. The proof, at most, shows that, as to a few of the many matters stated by her, she was mistaken as to dates and events. "We think her examination tends to show that she possessed at least an ordinarily accurate and clear memory of the things and events to which her attention was-called. Nor can we believe that promptness and accuracy of statement are no evidence of a sound mind.

Again, it is claimed that the fact that the appellant transferred to her nephew her homestead, and canceled-a mortgage for $5,000 which she held against his property, was evidence of unsoundness of mind. In determining whether this transaction was such evidence, it becomes necessary to consider the relations of the parties, the circumstances attending the transaction and the purposes of such transfer. At the time of these transfers the appellant was about sixty-four years of age. She was possessed of an estate of the value-of about fifty thousand dollars. The property transferred was of the value of about fifteen or twenty thousand dollars. She had no children. One had been born to her, but died in childhood. She had two brothers and a sister living. Her sister had an only son, who had lived near the appellant many years. He had been a daily visitor at her house since the death of her own child, and she had been very fond of him from his youth up. When he arrived at man’s estate, and after the death of her husband, the appellant had leased him her farm on shares, and thus they had been members of the same household for several years. The evidence tended to show that he had been kind to her and treated her with the utmost consideration. Her husband, before his death, had often talked with her in relation to making provision for this nephew, and they had agreed that they would do well by-him. After her attack of paralysis, and after she had substantially recovered from its effects, realizing the uncertainty of life, she began to consider the question of disposing of her property, and also of securing for herself a home where she would be cared for by the tender hands of friends. To accomplish this purpose, and to carry into effect the long-cherished plan of herself and her husband “ to do well by this nephew,” she transferred to him the homestead farm and canceled a mortgage she held against him. In consideration of this transfer and cancellation of mortgage he agreed to take care of her for the remainder of her life. To secure such care she took to herself a life lease of the farm. Hnder these circumstances, who can justly say that this transaction was evidence of an unsound mind ? Surely there was nothing unusual in such a proceeding. What more natural ■ than that the appellant should desire to provide for herself a home in the family of her favorite nephew; and what more natural than that she should amply reward him for such care by transferring to him a portion of her property, and thus carry out her own desires as well as those of her deceased husband.

But it is said that she did not have the agreement of her nephew to take care of her reduced to writing. That is true. But the papers were prepared by her lawyer, and the method of transacting this business was presumably left to him. He had a life lease given to her to secure her maintenance. That she was guided in the transaction of this business by the advice of her lawyer is not evidence of mental incapacity. If such a transaction is to be regarded as evidence of unsoundness of mind, many a fond father and mother are liable to be involved in, and have their estates dissipated by, litigations similar to that imposed upon the appellant in this case. We cannot think a transfer of property, or surrender of a security, made under the circumstances shown by the proof in this case, any evidence of unsoundness of mind.

When we consider all these grounds together, and consider all the proof in the case bearing upon the question, we do not think they furnish sufficient evidence to justify a finding that the appellant was of unsound mind. We are, therefore, of the opinion that the evidence was insufficient to sustain the finding of the jury, and that the learned county judge erred in denying the appellant’s motion for a new trial on that ground.

Our attention is also called to other errors which seem to require a reversal in this case; On the trial a physician, who was called as a witness for the petitioner, was permitted to testify, under the objection! and exception of the appellant, that she had not sufficient mental strength to manage her estate or conduct the business connected with it. In Matter of Arnold (14 Hun, 525), where a physician was called as a witness and permitted to testify that the testator was not possessed of testamentary capacity, it was held error, and the decree was reversed. If it is not competent for an exjiert witness to testify to want of sufficient capacity to make a will, it must be incompetent for such a witness to testify to the absence of sufficient capacity to manage an estate. The principle of that case is decisive of the question. We think the evidence should have been excluded.

Abel C. Benedict was called as an expert witness by the petitioner. The appellant sought by cross-examination to show that the witness procured admission to the house where the .appellant was living, so that he might become a witness, by fraudulent and improper means, without the consent and against the will of those there present, and in the absence of her attending physician, whom they desired to have present. This evidence was objected to by the petitioner and excluded by the court. Its purpose was to show the means adopted by Benedict to make himself a witness in the case. On the cross-examination of a witness the party should be allowed to show whatever may indicate the prohable relations between the witness and the party, and whether they be friendly or unfriendly is always admissible for the purpose of affecting the degree of credit which his evidence should receive. (Wallace v. Marks, 13 W. Dig., 399.)

A witness may be asked any question tending to show that he is not impartial, and if he denies the facts suggested, he may be contradicted. (Stevens’ Dig. of Ev., 186.) A witness may be required to explain whatever would show bias on his part. (1 Wharton on. Ev., § 545.) We think this evidence should have been admitted, and that the appellant was entitled to show by the witness the facts sought to be proved as bearing upon the credit to be given his evidence.

Dr. Mercer was also called as an expert by the petitioner, and was permitted, under the appellant’s objection and exception,, to answer a hypothetical question, which was based partially upon facts which had been proved, partially upon assumed facts, as to which we find no proof, and partially upon portions of the testimony of other witnesses given on the trial which the witness had heard. We think the question was improper, and that the court erred in overruling the appellant’s objection. Hypothetical questions are allowed to be put to experts, but the hypothesis upon which they are examined must be based upon facts admitted or established by the evidence, or which, if controverted, the jury might legitimately find on weighing the evidence.” (People v. Augsbury, 97 N. Y., 501.) In such a case it is not the province of the witness to reconcile and draw inferences from the evidence of other witnesses, and to take in such facts as he thinks their evidence has established, or as he can recollect and carry in his mind, and thus form and express an opinion.” (Reynolds v. Robinson, 64 N. Y., 589; Guiterman v. Liverpool, etc., S. S. Co., 83 id., 358; Hagadorn v. Conn. Mut. Life Ins. Co., 22 Hun, 249.)

Alanson Hicks, petitioner, who instituted this proceeding, was sworn as a witness. On his cross-examination he was asked by the appellant’s counsel if he had not offered to settle this matter. This was objected to by the petitioner as immaterial and improper, and the court sustained the objection. The appellant then stated to the court that he desired to prove by the witness that he had offered to-drop the case if the appellant would pay him $15,000. This was excluded and the appellant excepted. We think the evidence offered should have been admitted. It would have tended to show that the petitioner’s attitude was not as friendly, disinterested and philanthropic as it was described to the jury by the court in its charge. It would have shown his motive, and would have been some evidence that he did not regard the appellant as insane and incompetent to transact her business. It would have borne directly upon the credibility of his evidence.

While the appellant’s counsel was cross-examining the petitioner’s witness Mercer, and while, as appears from the appeal-book, he was confining himself to a legitimate and proper cross-examination, the court stopped him and refused to permit any further cross-examination. This action on the part of the court was excepted to by the appellant. While the cross-examination of a witness may be limited and kept within proper bounds, and the extent to which it may be pursued, especially as to collateral matters, is largely within the discretion of the court, yet the right to properly cross-examine a witness should always be accorded to a party. “The exercise of this right is justly regarded as one of the most efficacious tests which the law has devised for the discovery of truth. By means of it the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony ; the manner in which he has used those means, his powers of discernment, memory and description, are all fully investigated and ascertained, and submitted to the consideration of the jury, who have an opportunity of observing his demeanor and of determining the just value of his testimony.” (2 Taylor on Ev., § 1428.) In this case we think the court improperly deprived the appellant of the benefit of a full cross-examination.

On the trial the petitioner’s counsel was permitted to read from medical works what different authors had written in relation to the condition of a patient when the arm regained its power quicker and better than the leg, and then to ask the witness the following question : “ Assuming the facts stated there, what do you think as to the proposition that that is a bad indication ? ” To which the witness answered: “ It is an unfavorable condition as compared to the reverse when the limb mends first and the arm last; the condition is more favorable; more favorable as to the condition of the brain, and shows a less degree of disorganization of the brain.”

The petitioner’s counsel was permitted to read in the presence of the jury several extracts from the works of different medical authors and then asked the-witness similar questions. All this evidence was objected to, and the counsel for the appellant repeatedly asked the court to strike- out what was read from the books, which was denied. "We think this was error. It was, in effect, asking the witness to answer a question not based upon any hypothesis founded upon facts proved in the case, but to answer a question based upon the hypothesis that the statements read were true. The effect of these rulings was to bring before the jury the unverified statements of the authors of the books read, and would tend to improperly influence a jury in the determination of the question before them. Medical books cannot be introduced in evidence, nor can an expert witness be permitted to testify to statements made therein; and it is equally improper to permit the reading of such books to the jury by counsel. (Boyle v. State, 57 Wis., 472; Stilling v. Town of Thorp, 54 id., 528; Harris v. Panama R. R. Co., 3 Bosw., 7; Roe v. Strong, 107 N. Y., 350; Ashworth v. Kittrridge, 12 Cush., 193; Com. v. Sturtivant, 117 Mass., 123; Collier v. Simpson, 5 Car. & P., 73; Fowler v. Lewis, 25 Tex., 380; State v. O'Brien, 7 R. I., 336; Davis v. State, 38 Md., 15; Com. v. Brown, 121 Mass., 69.)

There are many other grounds of alleged error to which our attention has been called, embracing irregularities of procedure as well as errors in rulings, but the view taken of the questions already considered renders it unnecessary to especially examine the many other grave exceptions in the case.

Because of the errors already pointed out, we are of the opinion that the order denying the appellant’s motion for a new trial, and the judgment or order confirming the verdict, and appointing a committee of the person and property of the appellant should be reversed.

Hardin, P. J., concurred; Merwin, J., concurred in the result.

Motion to dismiss the appeal denied, with ten dollars costs and disbursements; judgment or final order and order denying new trial reversed and a new trial granted, with costs of this appeal to abide the final award of costs in this proceeding.


author: Daniels, J.:

text:
    FREDERICK A. SCHROEDER and ISIDOR M. BON, Respondents, v. DANIEL FREY, ISIDOR FREY and JACOB L. HAAS, Appellants.

      Proof of actual fraud, necessa/ry to avoid a discharge in bankruptcy — the wrong-doing of one partner imputed to his copartners.

    In order to avoid the bar of a discharge, under the national bankruptcy act (chap. 1Y6 of 186Y; 14 U. S. Stat. at Large, p. 533), proof of positive or intentional fraud is required, involving actual wrong on the part of the debtor.
    In an action against several partners, to recover for goods furnished to the firm, alleged to have been obtained by false and fraudulent representations, it is enough, where the defense of a discharge in bankruptcy is interposed, to prove-that one of the partners was guilty of the fraud; and such evidence will justify the recovery of a judgment against him and his innocent copartners.
    Appeal by the defendants Daniel Frey, Isidor Frey and Jacob L. Haas from a judgment of tbe Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of December, 1889 ; and also from an order denying a motion for a new trial,, entered in said clerk’s office on the 19th day of December, 1889, after a trial before the court and a jury at the New York Circuit, at which a verdict was rendered by the jury, in favor of the plaintiffs, for the sum of $8,760.25.
    The appeal was heard and decided at the December Term, 1890, and a reargument was thereafter ordered as to the effect of the defendants’ discharge in bankruptcy.

      The action wals brought to recover the value of goods and merchandise sold and delivered by the plaintiffs to the defendants.

      M. 3. Regensbwrger, for the appellants.

      John Henry Hull, for the respondents.
   Daniels, J.:

The answers admitted the sale and delivery and the amount unpaid upon the price of the goods. But the right of the plaintiffs to recover that price was resisted chiefly on the ground of bankrupt, discharges issued to each of the defendants under the authority of the bankrupt laws of the United States. The regularity of the proceedings in which these discharges were issued was not impeached. But it was alleged in the reply that the plaintiffs had been induced to part with the goods by reason of false and fraudulent representations made to them prior to the sales and deliveries made. And evidence was given having a direct tendency to prove the truth of these allegations. And in the event of proving this fact, then, by section 33 of the bankrupt act (chap. 176 of 1867; 11 U. S. Stat. at Large, p. 533), the discharges were deprived of the effect they would otherwise have had, even after the creditors had proved their debt and participated in the dividend made out of the estate of the bankrupts, as these plaintiffs were shown to have done.

But to overcome the effect of the discharges, under this section of the bankrupt act, proof of positive or intentional fraud has been required. The debt must have been created by fraud, and that involves actual wrong on the part of the debtor. (Palmer v. Hussey, 87 N. Y., 303, 307.) And its continued existence is in the nature of a punishment of the person guilty of the wrong. To that extent he certainly forfeits the benefit of his discharge.

But the fraud which the evidence tended to establish was that-alone of the defendant Isidor Frey. He was the partner who applied to the plaintiffs for the goods which they sold, and to induce the sales, as the jury must have found the facts, materially misrepresented the financial ability of his firm. For instead of having an unimpaired capital in their business of $20,000, as he stated the fact, to be, the firm at the time was fatally insolvent. It is true that he-denied making these representations, but the evidence against him was such as to make this a matter of fact to be decided by the jury, whose verdict against him must now be followed as conclusive. And it was not error to allow the deposition of the deceased witness, Frederick A. Dreyer, to be used as a part of this evidence. For it was shown to have been taken under an agreement that it might be so used, arising out of the condition of the case when the .action was upon the day calendar for trial at a preceding circuit. And the right to use it as evidence was not lost by the omission to file it, as the Code, in ordinary cases, has required that to be done. That omission may have been an irregularity, but, under these circumstances, certainly it was not one which could legally lead to the ■exclusion of this testimony.

Neither can this defendant legally complain of the exclusion of evidence offered to prove the understanding or intention of the .stipulation made while the bankruptcy proceedings were pending, relieving the defendants from liability to arrest under the order which had been obtained, and was then in the hands of the sheriff to be executed. For that stipulation was to be construed according to the import of the language it contained, in view of the circumstances under which it was made and which were fully before the court at the trial. And nothing is to be found in the decision of the Court of Appeals when this case was there for decision which sanctions any greater liberality in the evidence which might be received for this object. (Schroeder v. Frey, 114 N. Y., 266.)

The statement made by Mr. Cohen at the meeting of creditors, ■concerning the financial condition of the firm, might very well have been held incompetent against Isidor Frey if that objection liad been made to it. For it was not proved, except inferentially, to have had either his sanction or authority, and he was not present as the other two partners were when it was made. But it may be inferred from this omission to raise that objection that he understood that this statement was to be made by Cohen to the creditors, and that it was also truthful. And this inference receives further confirmation from the fact that he gave no evidence whatever in the least differing from this statement of the condition of the firm, as he might be expected to have done if the statement had not been ■correct.

The statement was made for- the information of the creditors, and lio legal rule was violated in permitting Mr. Baronsky to repeat, from liis own notes what was said at the time. If the statement itself had been presented to or circulated among the creditors, present, then its presence at the trial might regularly have been insisted upon as the best evidence of the communication made.. But that was not done,' Mr. Cohen only orally repeating what was the financial condition of this firm, and the witness testifying to it, with the aid of his own statement made at the time, repeating that at the trial. His evidence, given in this manner, was admissible,, and the exception to the ruling allowing it cannot be sustained.

Notes were given by the defendants to the plaintiffs and credited in the account for the goods. They were not produced and surrendered at the trial. And the right of the plaintiffs to recover was also resisted for that failure. But these notes were worthless as obligations, they were long past due, and they had been handed to the register in bankruptcy in making proof of the plaintiffs’ debt. The defendants, therefore, were not injured by the failure: to produce these notes, all remedy upon which had long been barred by the effect of the statute of limitations.

Other objections were raised for Isidor Frey during the trial, but they are too trivial to require the devotion of time to their1 consideration. The case was legally presented upon the inquiry whether he had been guilty of the fraud upon which it depended. The evidence so far proved the fact against him as to place it within the province of the jury to decide it. Their decision was adverse1 to him, and there is no cause for setting it aside.

But as to the defendants Daniel Frey and Jacob S. Haas, the other two members of the firm, there was no evidence actually implicating them in the fraud of their partner, Isidor Frey. He was the buyer of the firm. And it was not proved that the other two1 members knew of, or had in any way sanctioned, the making of these representations. Neither did it appear that they knew, or had reason to believe, that their firm was at the time incapable of paying its debts. It is true that this did not relieve them from liability for the debt itself, for in its creation their partner was clothed with power so far to bind them. And so, also, he was empowered to bind them to the legal consequences of the false representations made by him in obtaining the goods from the plaintiffs. This. .subject was considered in Bradner v. Strang (89 N. Y., 299), where the members of the firm were held to be liable for the fraud perpetrated by one of their number. And it was there said, with the apparent approval of the court, that the other defendants in that action, “ while they did not actually participate in perpetrating this fraud, are liable eiviliter for the fraud to the same extent as if they had participated.” (Id., 306.) And this principle seems to be sufficiently broad to subject these other defendants in this action to all the consequences of an action of this description, resulting from the fraudulent representations of the other partner. They were made in the course of the partnership business, and the firm reaped their benefit by receiving and disposing of the goods which the false representations had obtained. Their price was a debt against the firm and its members, which had been fraudulently contracted. And under section 5117 of the United States Revised Statutes, being section 33 of the bankrupt act, the bankrupt discharges did not operate to relieve either of them from liability for its payment. By that section it is the debt itself which has been created by fraud that is not to be discharged under the proceedings in bankruptcy. This was such a debt. And as each one of the defendants was civilly liable for the consequences of the fraudulent representations, it seems to follow that they have no ability to resist their liability in this action on the ground that they have been discharged as bankrupts. This, of course, is at variance with the conclusion previously adopted in the former decision of this appeal. ' But from the application of the authority last mentioned to the language of this section of the statutes, there seems to be no escape from the conclusion that the defendants have remained liable for the payment of this indebtedness, notwithstanding the discharge issued to them in the bankrupt proceedings. The verdict and judgment consequently must be sustained.

There is no ground disclosed by the case upon which either one of the defendants can be relieved, and the judgment and order should be affirmed.

Yan Brunt, P. J., concurred.

.Judgment and order affirmed.


author: Yan Brunt, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE RECTOR and Others of THE PROTESTANT EPISCOPAL CHURCH OF ST. STEPHEN, in the City of NEW YORK, Relators, v. JAMES BLACKHURST, as Treasurer and Senior Warden, Defendant.

      Religious societies — •a committee of a vestry, subsequently ousted from their offices as vestrymen, have no further power to act for the pm'ish.

    At a meeting of the vestry of an incorporated religious society a committee, composed of three vestrymen, was appointed to “ adopt the requisite legal measures for consummating the union” of that parish with-another. Subsequently the persons thus appointed were ousted from their offices by the judgment of a competent court. Thereafter they applied for a mandamus.to compel the treasurer of the society to affix its seal to an agreement for consolidation made by them.

      I-Ield, that as the clear import of the resolution of the vestry authorizing the appointment of the committee was that the members of the committee should be vestrymen, and as the rector, in his appointment of it, had named only such, the office of committeeman was dependent upon that of vestryman, and that, upon the rendering of the judgment of ouster from the latter office, their powers to act for the society as a committee of the vestry ceased and determined.
    The status and power to represent the corporation of the warden and two members of the vestry, who alone had not been ousted from office, considered.
    Appeal by James Blackhurst, as treasurer and senior warden of the Protestant Episcopal Church of St. Stephen, in the city of New York, and the petitioners, the Corporation of the Eector, Church Wardens and Vestrymen of said Church, Charles E. Fleming, William S. Watson and Charles Schroeder, from an order, entered in the office of the clerk of the county of New York on the 18th day of February, 1891, denying the motion of said Blackhurst and of the said petitioners for an order withdrawing, dismissing and discontinuing this proceeding as unauthorized.

      W. H. Hamilton, for the defendant Blackhurst and the petitioners, appellants.
    IF. Swayne, for the relator, respondent.
   Yan Brunt, P. J.:

This proceeding was originally instituted in August, 1890, for a peremptory mandamus to compel the appellant Blackhurst to affix the corporate seal of the relator to an agreement for the union and consolidation of the relator with the Holy Trinity Church of Harlem.

The application for a peremptory writ was denied, but in pursuance of leave given, an alternative writ of mandamus for the same relief was issued in November, 1890. One of the grounds upon which said application for the peremptory writ was opposed was that the proceeding was initiated without the authority of the relator, notwithstanding which objection the alternative writ was granted.

The latter writ was duly served on the defendant in January, 1891, upon a petition signed by three of the appellants claiming to be officers of St. Stephen’s Church, and upon affidavits an order was obtained to require the relators therein named to show cause why these proceedings should not be vacated and the writ dismissed. It also contained a provision extending the defendant’s time in which to make return to said alternative writ until ten days after the hearing and determination of said motion. The said motion came on for hearing before the same justice who had heard the motion for a peremptory mandamus, and he having denied the same upon the merits, from the order entered thereon this appeal is taken by the defendant as well as the petitioners.

It is claimed on behalf of the respondents that this proceeding was instituted and has been carried on under the direction and authority of a committee appointed by the vestry of the relator corporation, under certain resolutions for consolidation, passed at a meeting of the vestry in February, 1890, whereby the rector was authorized to appoint a committee of three, among other things to adopt the requisite legal means for consummating the union of the two parishes. The attorney for the relator in this proceeding has appeared for the corporation under the retainer and authority of said committee.

It further appears that, prior to the initiation of this proceeding, certain proceedings in the nature of quo wanranto were had against certain members of the vestry of the relator corporation, among whom were the three members of the vestry appointed by the rector pursuant to said resolution, and the members of the said committee were ousted from tlieir office as vestrymen, together with four others, being three vestrymen and one warden, making seven in all, leaving thus only two vestrymen and one warden in office.

If it is suggested that the above-mentioned action only declared the election of the members of said committee at the election in 1890 void, and that they held over under their election of 1889, it may be answered that the right to so hold over was attempted to be established in the quo warrcmto action wherein Cock and others were relators, and Fleming and others defendants, and it was adjudicated in that case that no such right existed.

It is claimed upon the part of the relators that, as no resolution abridging the powers or rescinding the appointment of the committee had been passed, such committee remained in full exercise of its powers, and lias a right to discharge its duties, and has continued to discharge the same down to the present time; and that the petition upon which the motion to dismiss was founded has never been authorized by the vestry of the relator, nor at any meeting of the petitioners or other persons claiming to act as a vestry.

In support of the application upon the part of the relators it is also urged, first, that the corporation had the authority to delegate the power which it had to this committee of three, and that the powers of such committee did not expire with the term of the appointing body.

It is clear, and no question is raised but that such delegation of power by a corporation to a committee is proper, but it seems to us; that the committee is appointed to be a committee of the vestry,, and although the resolution does not say that the committee was to be a committee of the vestry, it was the clear import of the resolution that such committee should be members of the vestry; and the rector, in his appointment, only named members of the vestry, and hence their office of committeemen was conferred upon them because of the fact of their being members of the vestry; and they having ceased to be members of the vestry, and being committeemen only because they were members of the vestry, it is clear that tlieir office of committeemen also ceased.

A committee of the vestry cannot be a committee of persons wliO' are not members of the vestry, and the sole authority conferred ■upon the rector was to appoint a committee of the vestry, which, is, •as already said, the plain import of the resolution, and is what the rector understood at the time of making the appointment to be its import.

Such being the case, how is it possible for this committee to exercise its functions after its members have been ousted from the office which authorized them to act as committeemen ? As well might an executive committee of a business corporation claim that, because a resolution had been passed by the corporation for the appointment of 'such committee, and that they had been appointed such committee, they had a right to exercise their powers as an executive committee ■of the corporation after they had ceased to 'be trustees or directors.

But it is urged that the powers of the committee did not expire with the term of the appointing body, and this undoubtedly would be true if these committeemen had been mere agents of the corporation, because tlie rule is well settled that the authority of the agent of a corporation does not expire simply because the board of directors who appointed them has gone out of office.

But the distinction between tlie case at bar and the- cases cited by the learned counsel for the appellant is that the committee in the case at bar was a committee of the vestry. They were not mere agents of the corporation, except because of the official character which they bore to the corporation, being, as already stated, like the executive committee of a corporation whose power clearly •expires with the term of their office. We think, therefore, that as soon as these men were ousted from their office, because of which they had been appointed on this committee, that their powers as ^committeemen ceased.

But it is urged that the appellants had no standing in court to present the petition ; that they had no right to represent the corporation ; that they were not competent to conduct any business, and that there was no meeting of tlie vestry which authorized the presentation of their application.

This may be entirely true so far as authority to represent the 'corporation was concerned, but they, being officers of that corporation, had a right to call the attention of the court to the fact that there was no body of men who had a right to represent that corporation, and that the people who were assuming to represent the corporation were absolutely without authority and were imposing upon the court; when that fact was presented to the court by anybody, it was the duty of the court to dismiss the proceedings, because the court will never entertain an action or proceeding when it is authoritatively informed from any source that it is being initiated without authority upon the part of the person or corporation in whose name it is pretended to be brought.

It is urged, further, that the alleged objections to these proceedings were presented to the court at Special Term before the issuance of the alternative writ, and overruled, and that the defendant if he desired to raise the point should have appealed from that decision, and, not having done so, was concluded. But it does not appear from the order appealed from that any such objection was taken at the hearing of the motion; and if it were, it was overruled by the court which had determined the original application, which was necessarily equivalent to the granting of leave to renew the motion, and the application of the petitioners was denied upon the merits, and not because of any former adjudication.

The point that the appellant was estopped from objecting to the maintenance of the proceedings, because of having obtained an extension of time to make a return, is not necessarily fatal to the proceeding. The court might, in a proper case, deny the application upon that ground. But the record in this case does not present any such case as would justify the court in denying the application for any such reason. The court is informed, and the facts are conceded, that this proceeding is being initiated under what, in our opinion, is an authority which has terminated. It would be the duty of the court, at any stage of these proceedings, as soon as it learned this fact, to dismiss the whole proceeding because it was binding upon nobody.

A decision in this application for a mandamus, under the circumstances, adverse to the corporation of St. Stephen’s Church, would not be binding upon the church because the proceeding was entirely unauthorized, and was instituted without any authority whatever from the corporation. Hence the court would not continue to entertain the application after it had been informed that it was instituted without authority.

"We are of opinion, therefore, that, because of the want of authority to institute these proceedings, the application to dismiss should have been granted, and the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Daniels, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Van Brunt, P. J.: Daniel's, J.:

text:
    MARGARET DEVLIN, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Interest — acceptance of the principal ban's any recovery for interest — rule applied to an award made by the officers of a municipality.

    The commissioners of assessment of the city of New York made an award to the owner of certain real estate in proceedings for the taking thereof under the exercise of the right of eminent domain. The owner accepted the principal sum awarded, but demanded interest and reserved all claims therefor.

      Held, that the acceptance of the principal sum prevented any subsequent recovery for interest thereon.
    Appeal by the defendants, the Mayor, Aldermen and Commonalty of the City of New York, from a judgment, entered in the clerk’s office of the city of New York on the 9th day of January, 1891, in favor of the plaintiff for $919.38 damages and costs, after a trial at the New York Circuit before the court and a jury.

      T. Oownoly, for the appellant.

      O. E. Souther, for the respondent.
   Van Brunt, P. J.:

On the 5th day of July, 1889, there was awarded to the plaintiff, in proceedings to condemn certain property for school purposes for certain lots owned by her, the sum of $61,500. At this time said lots were mortgaged for various sums. No satisfaction pieces of these mortgages were delivered or tendered to the comptroller prior to the 20th of September, 1889, although it is claimed that demands for the payment of this award were made prior to that time. On said last-mentioned date satisfaction pieces of the mortgages and a quit-claim deed of the premises were delivered to the comptroller, and upon such delivery the comptroller gave a warrant for the face of the award, payable to the order of the plaintiff. At the time of the receipt of this warrant, and of the delivery of the quit-claim deed and satisfaction pieces, the plaintiff filed a paper with the comptroller, stating that the same were delivered under protest and with the distinct understanding that all rights were reserved, on behalf of the owner and the mortgagees, for the recovery of interest upon the amount of the award from ■ the date of its confirmation. Thereupon this action was brought to recover said interest; and, upon the foregoing facts, the court directed a verdict for said interest, with interest from the 20th of September,' 1889, and from the judgment thereupon entered this appeal is taken.

It seems to us that the acceptance of the principal by the plaintiff prevents an action for the recovery of interest.

If the plaintiff meant to demand the interest, she ought not to have received the principal. The fact that she protested against the denial of the interest can have no effect, because in face of the fact of receiving the principal a protest against the refusal of the defendant to pay interest is of no consequence.

Since the year 1794 it has been the rule 'that where the principal has been paid there can be no recovery of interest. (Dixon v. Parkes, 1 Esp., 110.) This rule has been repeatedly recognized in the courts of this State, notably in the cases of Cutter v. Mayor (92 N. Y., 166) and Hamilton v. Van Rensselaer (43 id., 244) and the cases therein cited.

If it is said that the case of Cutter v. Mayor is no authority because of the form of the receipt, it is to be observed that all that the receipt did was to receipt in full an account simply showing the amount of the award without anything in reference to the interest at all; the receipt being in full payment of the above account.” Therefore, the use of the words “ in full payment ” only referred to the amount received, and had nothing to do with the disputed item of interest.

It is evident that, under the acts under which those proceedings were taken, the interest is given as damages for non-payment or detention of the amount awarded, and does not constitute a debt capable of a distinct claim, precisely the same as was held in the case of Cutter v. Mayor.

We think, therefore, under the principles laid down in the cases cited, that the plaintiff having received the principal, although she did protest against accepting, yet, notwithstanding such protest, having accepted, she cannot now recover that which was a mere incident of the award, namely, the interest for the detention of the same.

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

Daniel's, J.:

The plaintiff had no right to receive the award until the incumbrances on her property were discharged. Then, for the first time, the money was due to her, and then it was paid. There being no default in payment on the part of the city, the plaintiff was not entitled to interest.

For this reason, also, I agree to the reversal of the judgment and the direction for a new trial.

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