text:
    William W. Conde and Others, Respondents, v. Jeanette C. Hall and Zell R. Hall, Appellants.

      Fraudulent conveyance — it cannot stand as security for advances made — satisfaction given on the compromise of a judgment against a trustee of a manvfaettiring company — effect thereof on a judgment against a stockholder.

    Where a deed is given and taken, with intent to hinder, delay and defraud creditors, it is wholly void and cannot stand as security for advances made or to be made upon the faith of it.
    Creditors of a manufacturing corporation, organized under the General Manufacturing Act (Laws of 1848, chap. 40), recovered judgments against a person named Munson, who was a trustee of such corporation, upon the ground that he had made a false report as to the condition of the corporation. These judgments were compromised and satisfied. The same creditors also recovered judgments against one Zell R. Hall, a stockholder of such corporation, upon the ground that the whole amount of the capital stock of such corporation had not been paid in.

      Held, that the satisfaction of the judgments against Munson did not satisfy the judgments against Hall, hut that the latter was entitled to have the amount which the plaintiffs realized upon the compromise made with Munson applied upon the judgments recovered against him;
    That as the defendants claimed the benefit of the recorded satisfaction pieces of the Munson judgments the plaintiffs had a right to show the circumstances of that transaction, and in that connection were entitled to prove a letter from Munson upon the subject of the compromise.
    Appeal by the defendants, Jeanette C. Hall and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Jefferson on the 14th day of June, 1895, upon the decision of the court rendered after a trial at the Jefferson Special Term.

      Lansmg, Lcvnsing cé Jones, for the appellants.

      JE Ion R. Brown, and Rogers cé Atwell, for the respondents.
   Merwin, J.:

In this action the plaintiffs, as judgment creditors of the defendant Zell R. Iiall, whose respective judgments were based upon liabilities existing piior to February, 1892, sought to set aside, as fraudulent and void as to creditors, a conveyance of real estate made by said defendant to the defendant Jeanette C. Hall, and bearing date February 25, 1892. The main issue at the trial was whether the deed was made and received with an intent to hinder, delay and defraud the creditors of Zell R. Hall. It was found by the court that such was the intent of the debtor, and that the grantee received the deed with the knowledge of such intent and for the purpose of aiding and co-operating with the debtor in the execution of such intent. A careful consideration of the evidence leads us to the conclusion that the evidence is sufficient to sustain these findings, and that there is no sufficient reason apparent for this court to disturb them. The appellants claim that the deed was given as security for advances made or to be made. Hnderthe findings above referred to, the deed cannot stand as security. (Baldwin v. Short, 125 N. Y. 553.)

The defendants claimed at the trial, and do here, that the plaintiffs’ debts and judgments have been paid. The plaintiffs were creditors of the Gifford Manuiaqturing Company, a manufacturing corporation organized under chapter 40 of the Laws of 1848. Zell R. Hall was a stockholder in that company, and the judgments recovered by the plaintiffs against him were based on his liability as a stockholder in case the whole amount of the capital stock had not been paid in. (§ 10, chap. 40 of the Laws of 1848.) One Munson was a trustee of the corporation, and the plaintiffs also recovered judgments against him for the amount of their debts upon his liability under section 15 of the act of 1848 for making a false report as trustee. The judgments against Munson were afterwards comju-omised, and were satisfied by the filing of satisfaction pieces in the usual form. The Special Term applied upon the judgments against Hall the amounts realized by the plaintiffs on the compromise with Munson, and declined to hold that the satisfaction of the Munson judgments operated to satisfy the Hall judgments. No payment in any other way is claimed. This question of payment is fully discussed by Mr. Justice Vann in the opinion delivered by him at Special Term, .and it need not here be further considered. We agree with the Special Term that the compromise and satisfaction of the Munson judgments did not satisfy the Hall judgments, and that Hall received all he was entitled to, when the court applied oil the judgments against him the proceeds of the compromise with Munson. (See Whittemore v. J. L. & S. O. Co., 124 N. Y. 565.)

The defendants claim error was committed in receiving- in evidence a letter from Munson on the subject of the compromise. The defendants claimed the benefit of the satisfaction pieces on record of the Munson judgments. The plaintiffs had a right to show the circumstances under which they were given and the arrangement in fact made with Munson. The letter was a part of the transaction that resulted in the compromise and satisfaction, and on that ground was properly received.

The judgment must, we think, be sustained.

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

Judgment affirmed, with costs.

       Tlie following is the opinion delivered at Special Term.
      Vann, J.:
      I have found as a fact that the defendant Zell R. Hall, on the 25th of February, 1892, conveyed his interest in the Doolittle & Hall Block, situate in the city of Watertown to his mother, Jeanette C. Hall, with the intention of keeping the same from his creditors and securing to himself the beneficial enjoyment thereof, and that she accepted the conveyance for the purpose of co-operating with him and aiding him in carrying such intention into effect. It is the not unusual case of a man who, apprehending that a large and, in his view, unjust claim was about to be enforced against him, endeavors, by conveying to a relative whom he can trust implicitly, to place his property beyond the reach of creditors, 'and yet to continue to enjoy it himself. This the law does not tolerate, for the courts cannot classify their judgments, or hold that one is more sacred than another. The effort to avoid the payment of a judgment that is harsh in its effects, when enforced, as in the case of one recovered fora penalty, or against a surety, is just as fraudulent in the eye of the law as if directed against a claim for groceries, clothing or borrowed money. The law does not distinguish between debts, by looking at their origin any further than to see that they are valid, but lends its aid to collect all alike from the property of the debtor, and any effort on his part to so dispose of his property as to hinder, delay or prevent his creditors from reaching-it is forbidden by statute, and condemned by the common law. The conveyance in question, therefore, although given to avoid the payment of what was regarded as an inequitable liability, must be set aside, unless the judgments upon which this action is founded have been paid, as alleged in the answer.
      The judgments in question against Zell R. Hall were recovered in an omnibus, action, and are evidenced by the same judgment roll as certain other judgments for different amounts recovered at the same time and by the same plaintiffs against one Henry S. Munson. Before the commencement of this action the judgments against Mr. Munson were satisfied by the filing of satisfaction pieces in the usual form, and the claim of payment, is founded on the common-law' rule that if two persons are jointly or jointly and severally liable for the same debt, an unconditional release of one releases the other also. (Lord v. Tiffany, 98 N. Y. 412; Breslin v. Peck, 38 Hun, 623.)
      The judgments against Mr. Munson were not paid in full, but were compromised at about fifty cents on the dollar. They were founded upon the penal liability imposed by section 15 of the General Manufacturing Act of 1848, for making a'false report as a trustee of an insolvent corporation known as the Gifford Manufacturing Company. (Laws of 1848, chap. 40, § 15; Veeder v. Baker, 83 N. Y. 156.)
      The judgments against Mr. Hall were founded on a liability contractual in its nature, imposed by section 10 of the same act, upon a stockholder holding stock in such a corporation, when the whole amount of the capital stock has not been paid in. (Corning v. McCullough, 1 N. Y. 47; Flash v. Conn, 109 U. S. 871.)
      The measure of damages is not the same under hoth of said sections, as under section 15 it embraces all the debts of the corporation, while under section 10 only debts to the amount of the stock held by each stockholder can be enforced against him. While payment of all the debts of the corporation would relieve from liability under either section, the debts owing to the plaintiffs by said company were not compromised, but onty their claims against Mr. Munson for the statutory liability under section 15. Although tlio existence of a debt against the corporation was necessary in order to make either Mr. Hall or Mr. Munson liable, neither was under the same liability, either in nature or extent, as the other, for one was held liable as a stockholder and the other as a trustee. They were not jointly or severally liable for the same tiling. They could have been sued separately, but if sued jointly, under one section only, there could have been a recovery against one only. As was said by the Court of Appeals in Farnsworth v. Wood (91 N. Y. 308, 314), “the liability of stockholders under the act of 1848 is a several individual liability of each stockholder, directly to such of the creditors as have complied with the requisite conditions preceden);.”
      Section 15 makes all the officers of a corporation, who knowingly sign a false report, litMe jointly and severally for all the debts of the company contracted while they are stockholders or officers thereof. As there was no recovery against Mr. 1-Iall under this section, he is not liable jointly and severally with Mr. Munson on tlio judgments recovered against the latter thereunder.
      Seetion 10 makes all the stockholders of a corporation severally liable to tlio amount of the stock held by each until all the capital is paid in. Mr. Mnnson was not, while Mr. Hall was, held liable under this section. The liability of each, therefore, was several, personal and exclusive. Neither had any legal interest in the liability oí the other, and the release of one did not release the other. The release of Mr. Munson did not release Mr. Hall, hut, while this is true, it is also true that the amount paid by Mr. Munson to the plaintiffs in order to obtain his discharge must be applied on their respective debts against the corporation, and the remainder only, with costs, if any, can be enforced against Mr. Hall. It is the indebtedness of the corporation to the respective plaintiffs that is the measure of liability under the statute, and as that indebtedness is reduced the liability is reduced in proportion. The distinction between the cause of liability and the measure of liability should not be lost sight of. The cause of liability is a violation of the statute, but the measure of liability is the indebtedness of the corporation, with certain limitations.
      There must be judgment for the plaintiffs, upon the basis thus pointed out, and findings and a decree may he prepared accordingly, and if not agreed upon as to form, they may be settled before me upon a notice of two days.


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    William Connors, Appellant, v. The Elmira, Cortland and Northern Railroad Company, Respondent.

      Negligence — a railroad not chargeable because a third person leaves a wagon near a coal cm — contributory negligence — an insufficient number of brakemen, when not a proximate cause.

    In an action brought to recover damages resulting from the alleged negligence of the defendant, it appeared that the plaintiff was a brakeman; that he was injured in attempting to couple a car upon a siding; that the injuries resulted from the presence of a wagon which had been used to unload coal from a car and had been left there by the driver, who had unhitched his team and gone to dinner; that the plaintiff was entirely familiar with the locus in quo; that he was in a position where he could easily see the fireman on the engine and where he could be seen by the fireman, and that the cause of the accident was simply the fact that after he had finished coupling two cars and was stepping out from between them he was caught, when the train moved, between the corner of one of such cars and the front wheel of the wagon.

      Held, that the defendant could not be charged with negligence because a third person had left his wagon near one of its coal cars;
    That under all the circumstances, including the fact that the plaintiff must have seen the wagon when he passed by it at noon of the same day while his train was on the main track, it was not clear that the plaintiff had shown himself to be free from negligence;
    That in view of the fact that the lack of additional brakemen was clearly not the proximate cause of the accident, it did not constitute negligence upon the part of the defendant that there were only two brakemen upon the train on the day in question, although the train usually had three brakemen.

      Appeal by the plaintiff, William Connors, from a judgment of the Supreme Court in favor of the defendant,-entered in the office of the clerk of the county of Cortland on the 31st day of January, 1895, upon a nonsuit granted by the court after a trial at the Cortland Circuit before the court and a jury, and also from an order entered in said clerk’s office on the 8th day of January, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.

      T. K. Cowrtney, for the appellant.

      Kellogg ds Van Iloesen, for the respondent.
   Merwin, J.:

On the 26th of April, 1892, the plaintiff was the head brakeman on a local freight train of the defendant running from Cortland to Canastota. IJe had been in the employ of the defendant for several years as brakeman or extra conductor on this train. The train, consisting of eighteen or twenty cars, arrived at Perryville about noon. About a mile northerly of Perryville there was a side ti’ack on the easterly side of the main track, about 500 feet long, called Britt’s Siding, made for the accommodation of a lime kiln and stone quarry at that place. As the train left Perryville it was cut in two, and the plaintiff, with two or three cars and the engine, having on it the engineer and fireman, went ahead for the purpose of leaving a car at the siding. The balance of the train came on behind, it being down grade, and stopped before reaching the side track. The plaintiff, as he passed along, left one of his cars on the main track, and then proceeded to the northerly end of the side track and backed on to it for the purpose of coupling on to and taking out two cars that were on the side track. He made the coupling to one, and then he walked along its side, between it and the main track to the end of the car, and then walked on the side track about twenty-five feet to the second car, then signaled the engineer or fireman to back up, which was done, and the plaintiff made the coupling. As he stepped out from between the cars he was caught between the corner of one of the cars and the front wheel of a wagon that stood beside the car last coupled, and received an injury which is the subject of this action. The car last coupled was a gondola coal car. During the forenoon of the day in question Mr. Raymond, an employee of Mr. "Wbrlock, one of the operators of tlie lime kiln, liad been engaged with a team and wagon in unloading in the usual wray tlie coal from tlie car and drawing it to the lime kiln. At noon, and about half an hour before the accident, Raymond unhitched the team and left the wagon by the side of the car between tlie side track and the main track, and went to dinner, intending to come back after dinner and go on with the work.

Accórding to tlie testimony of the plaintiff, tlie wagon was'so near the car that there was not enough room for him to stand between it and the car as he stepped out after making the coupling. He claims that the defendant is chargeable with negligence in allowing the wagon to be left so near. The team or wagon did not belong to the defendant and was not used by it. There is no evidence that the wagon had ever been left so near before except on one occasion, about two weeks before, when it was left substantially in the same situation for a period of about two hours, and no actual notice of this to the defendant is claimed. The wagon and team had been used about there before in tlie process of unloading cars, but in no way dangerous to the defendant’s employees. It is difficult to see how the defendant can be charged with negligence in reference to the wagon. (Breil v. City of Buffalo, 144 N. Y. 163.)

The plaintiff had, for several years, passed over this road twice daily except on Sundays. He testifies : “ I had worked upon this switch before; I had placed cars in there and I had taken cars out of there, so that I knew tlie situation and tlie locality and the condition that it was in except the wagon. I knew as to what there was on the west side of the switch, on the east side of the switch.” As he came along that noon and passed on the main track to the north end of the side track he was on top of the cars and passed by the coal car and by tlie wagon. They were about thirty feet distant and in plain sight. The plaintiff as, after coupling the first car, he passed along its side and along the side track to the second car, could have seen the wagon had he looked, and so he could as he stepped out from between the two cars after he made the coupling.' It is not clear that the plaintiff was himself free from negligence. (See Thompson v. Boston & Maine Railroad, 153 Mass. 391.)

The plaintiff claims that the defendant was also negligent in that upon the train that forenoon there were only two brakemen, whereas usually there were three, and that if there had been three he might have been warned of the wagon. The plaintiff testifies : “ Left one, car on the main trade, so that we had one car and the engine when we went,on to the switch.” lie could signal readily to the fireman, who was about sixty feet off when the last coupling was made. The side track was on a curve and the fireman’s side of the engine was on the inside of the curve, as was also the wagon. If the plaintiff’s signals were readily seen by the fireman the wagon could also have been readily seen, as it ivas in the direct line of vision, and the fireman could have warned the plaintiff if he so chose. Yery clearly the lack of help was not the proximate cause of the collision. (Williams v. Del., L. & W. R. R. Co., 39 Hun, 434.)

We are of the opinion that the court did not err in holding that the evidence was not sufficient to show that the plaintiff had been injured by reason of any negligence of the defendant without any negligence on his part -that contributed to the injury.

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

Judgment and order affirmed, with costs.


text:
    David P. Lester, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.

      Conversion — wrongful delivery by a carrier after notice — what demand is necessary •— effect of accepting a payment after suit begun.

    In an action brought for a conversion it appeared that the plaintiff had constituted Patrick O’Donnell Iris agent to sell furnace governors for him for such a length of time as should be “mutually” agreeable; that in the latter part of December, 1889, the plaintiff forbade O’Donnell to do any further business for him; that O’Donnell had been in possession of certain furnace governors belonging to the plaintiff and had shipped those in question to Norwich, N. Y., consigned to 'Williams & O’Donnell; that on January 6, 1890, the plaintiff telegraphed to the defendant’s freight agent, at Norwich, notifying him of his ownership and forbade him to deliver the furnace governors except upon the written order of the plaintiff; that the freight agent replied, through the freight agent of the defendant at Oswego, where the plaintiff was, that he could not hold the freight if it was demanded on a bill of lading; that on January 10,1890, the agent at Norwich delivered the goods to O’Donnell on the bill of lading; that on the same day, and the day after the plaintiff had received the message stating that the agent at Norwich could not hold the goods if they were demanded on a bill of lading, he wrote to the freight agent at Norwich directing him to ship the goods at once to Oswego, and stated that if required he would advance the freight' and would furnish evidencie that he owned the goods.
    It further appeared that after the present action was begun O’Donnell paid the plaintiff for some of the goods in question which he had subsequently sold; and that the plaintiff received the money and told O’Donnell that he would apply it on his claim.

      Held, that as the plaintiff was the owner of the goods the delivery was wrongful and amounted to a conversion;
    That no demand was necessary other than the one made;
    That the receipt by the plaintiff of the payment made by O’Donnell was not a waiver of the plaintiff’s claim against the defendant for the balance due, and did not affect the plaintiff’s right to maintain the present action;
    That the defendant, by the corresponding reduction in the amount of the damages, received all the benefit to which it was entitled'from the payment.
    Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Oswego on the 16th day of July, 1895, upon the decision of the court rendered after a trial at the Oswego Circuit before the court without a jury.
    This action was brought to recover'the value of certain “Nor-cross Furnace Governors ” alleged to have been converted by the defendant, a common carrier, by a wrongful delivery.
    On the 1st day of November, 1889, the plaintiff and one Patrick O’Donnell entered into a written contract by which the latter was to sell for the plaintiff and as his'agent, for such length of time as should be “mutually” agreeable, “an article known as the ‘Nor-cross Furnace Governor.’ ”
    In October or November, 1889, the plaintiff ordered of IT. D. Trask & Co. of Boston, Mass., fifty sets of these governors; the bill of saffi described the goods as having been bought by D. P. Lester-of IT. D. Trask & Co. and sent to P. O’Donnell. About the middle of November, 1889, O’Donnell received at Fort Plain, New York, the fifty furnace governors, took possession of them and sold twenty sets at Fort Plain and Canajoharie; the balance of them, on the 23d of November, 1889, he shipped to Norwich, New York, the goods being consigned to Williams & O’Donnell, Norwich, New York.

      In the latter part of December, 1889, or the beginning of January, 1890, the plaintiff met O’Donnell in one of the public high ways in the city of Oswego and forbade liis doing any further business for him.
    On January 6, 1890, the plaintiff telegraphed to defendant’s freight agent at Norwich, notifying him of plaintiff’s ownership of the goods and forbidding delivery except upon plaintiff’s written order. In response to this, defendant’s freight agent at Norwich telegraphed to the freight agent of the defendant at Oswego to notify the plaintiff that he could not hold the freight if it was demanded on a bill of lading.
    About the 8th of January, 1890, O’Donnell called at the defendant’s freight office at Norwich and asked for the goods, when ho was informed of the telegram from the plaintiff, and told that he could not have the goods without the bill of lading. On January tenth O’Donnell called again with the bill of lading, paid the freight and demanded the goods, which were delivered to him and the bill of lading taken up.
    On the 11th of January, 1890, the defendant’s freight agent at Norwich, New York, received the following letter from the plaintiff:
    “Oswego, N. Y., Jwnucory 10, 1890.
    “ Mr. S. L. Boyce, Freight Agent, N orwich, N. Y.:
    “Dear Sir.— You are doubtless in receipt of my telegram of the 6th inst. notifying you that I am the owner of the goods at your office, consigned to Williams & O’Donnell. I desire the goods re-shipped to Oswego at once, and, if desired, I will advance the freight. Please advise me if the request will be complied with. Should you entertain any doubts as to my right to the possession of the goods, I will furnish you with evidence showing same.
    “ Yery respectfully yours,
    “ D. P. LESTER.”
    Upon the delivery of the goods O’Donnell proceeded to sell them, disposing of about twelve sets at Norwich and of the remainder at Syracuse, receiving the pay for them. About a month after the commencement of this action he paid to the plaintiff $144 for the twenty sets sold at Fort Plain and Canajoliarie and the twelve sets sold at Norwich after receiving the goods at that place, which were all that he had sold up to that time, and the plaintiff told him that he would take the money and apply it on the account.

      William Kernan, for the appellant.

      D. P. Lester, respondent, in person.
   Merwin, J.:

In this case, upon a former appeal (73 Hun, 398), a judgment in favor of the plaintiff was reversed mainly on the ground that the plaintiff had not shown the termination of the contract between himself and his agent O’Donnell, and, therefore, had not shown himself to be entitled to the possession of the goods which were delivered by the defendant to O’Donnell, and for the conversion of which this action was brought, on the theory of a wrongful delivery by the defendant to O’Donnell.

Upon the trial now under review there is evidence tending to show that, prior to the notice to the defendant of plaintiff’s claim that he owned the goods and was entitled to the possession thereof, the contract between the plaintiff and O’Donnell was terminated, and the trial court so found. The evidence upon this subject Avas not given upon the first trial, and the appellant claims that it is not sufficient to sustain the finding. An explanation was given by the plaintiff for its absence upon the first trial. Whether the explanation Avas satisfactory and whether the evidence as given was reliable were matters for the trial court to consider. We are of the opinion that its conclusion upon the subject should not be disturbed. It is suggested that, at the time the plaintiff claimed to terminate the contract, O’Donnell had a lieli on the goods for freight previously paid. It, however, appears that O’Donnell at that time OAved the plaintiff a much larger amount for prior sales and no tender on the part of plaintiff was necessary.

The plaintiff, after the commencement of this suit against the defendant, received from O’Donnell payment for a portion of the goods claimed to have been converted by defendant, the,plaintiff, as he testifies, stating at the time that a suit was pending against the defendant for the conversion of the goods, and that he would take the money and apply it on his claim. The appellant claims tliat in taking this payment the plaintiff recognized the right of O’Donnell to receive the goods from the defendant, and so waived his claim against the defendant for the balance. Clearly, according to the plaintiff’s evidence, .there was no intent to waive his claim for the balance ¿gainst the defendant. It should not be said as matter of law that there was any waiver, or any ratification of O’Donnell’s authority to receive the goods. The defendant, by the reduction of the amount of the damages, gets all the benefit it is entitled to from the payment. We are referred to the ease of Green v. Clark (5 Den. 497, 503), but the views of Chief Justice Beardsley, as there stated, did not meet with the approval of a majority of the court.

It is further claimed that the plaintiff was guilty of laches, and that no proper demand was made. The plaintiff on the 6th of January, 1890, send a telegram to the freight ageut of the defendant at Norwich, where the goods were, stating that the goods belonged to him and forbidding delivery except upon his written order. In reply to this the agent at Norwich sent a telegram to the freight agent of the defendant at Oswego, telling'him to advise the plaintiff “that we cannot hold freight for Williams & O’Donnell if - demanded on B. L. Tell him to send his orders thro’ shipping office.” This message was delivered to the plaintiff, as he testifies, on the evening of January tenth. On the eleventh the plaintiff wrote a letter to the Norwich agent saying that “I desire the goods re-shipped to Oswego, at once, and if desired I will advance the freight. Please advise me if the request will be complied with. Should you entertain any doubts as to my right to the possession o,f the goods, I will furnish you with evidence showing same.” This was received by the agent on the eleventh, but was not answered. On the tenth he delivered the goods to Williams & O’Donnell, they presenting the bill of lading and paying the freight. At or before the delivery the agent told Williams & O’Donnell that he had received a telegram from Mr. Lester to hold the goods, and they replied that “ they had had some difficulty with him and that accounted for that, but they would pay for the goods or the matter would be all straightened out — pay for the goods they said.”

The agent at Norwich-'seems to have acted on the theory that the bill of lading was conclusive as to the right of Williams & O’Donnell to receive the goods, although he then had notice of the claim of plaintiff. It is not now claimed by the defendant that this position is tenable. Nor is it apparent that there was any delay or laches on the part of plaintiff that could affect the ground or reason on which defendant acted. It is conceded that plaintiff was the owner of the goods, and he was entitled to the possession if the contract between him and O’Donnell was terminated.. The plaintiff in that case had the right to treat the delivery as wrongful, and if so, it amounted to a conversion (McEntee v. The N. J. Steamboat Co., 45 N. Y. 37, 38), and no further demand was necessary.' (Delamater v. Miller, 1 Cow. 75; Boyce v. Brockway, 31 N. Y. 493; Campbell v. Parker, 9 Bosw. 326.)

As the case now stands we find no good ground for reversing the judgment.

Hardin, P. J., and Parker, J., concurred.

Judgment a uned, with costs.


author: Per Curiam :

text:
    David Money, Appellant, v. John Fisher, Jr., Respondent.

      Wa/rranty — as to the fitness of a Mill as an article of food — express words we not necessary — jury must not diswedit uncontroverted testimony.

    Where a bull is sold as an article of food for domestic use, the law implies a warranty that the animal is fit for that purpose.
    No particular phraseology is necessary to constitute a warranty; any assertion made by the vendor of an animal concerning such animal, if relied upon by the vendee and if understood by the parties as an absolute assertion, will amount to a warranty.
    Where the evidence bearing upon the question of a warranty, given upon both sides, is undisputed, not contradictory, unimpeached and not improbable, it is the duty of the jury to credit the testimony, and it should not arbitrarily or capriciously disregard it.
    Appeal by the plaintiff, David Money, from a judgment of the County Court of Oneida county, entered in the office of the clerk of the county of Oneida on the 16th'day of May, 1895, upon the decision of the court reversing the judgment of- a justice of the peace rendered upon the'verdict of a jury.

      S. M. Stevens, for tlie appellant.

      E. 0. Worden, for tlie respondent.
   Per Curiam :

This action was to recover tlie purchase price of a bull sold by the plaintiff to the defendant. The answer set up both an implied and an express warranty, its breach, and that the animal was valueless.

As a result of the trial in the Justice’s Court the plaintiff recovered a judgment for the agreed price of the bull, with costs. On appeal the County Court reversed the judgment. As no opinion was written, we are unable to determine the particular ground upon which it was reversed.

The appellant, however, now contends that the court erred in reversing this judgment because: (1) There was no implied warranty ; and (2) there was no express warranty.

If this bull was sold as an article of food for domestic use, the law would imply a warranty that it was fit for that purpose. Whether the sale in this case falls within that principle, is not wholly free from doubt, and with our views of the question of express warranty, we deem it unnecessary to decide that question.

We think the undisputed evidence in the case shows conclusively that the plaintiff expressly warranted the bull to be “ fat and all right.” •John Fisher, Sr., who was the defendant’s agent and acted for him, testified : “ I bought the bull. Plaintiff came in one day and asked me if I wanted to buy a bull. I told him, {Yes,’ and made him an offer. I said I would pay two cents live weight, and four cents dressed, if the meat was fat and all right. He was satisfied and brought him in alive.” The plaintiff, who was sworn as a witness in his own behalf, on his cross-examination testified: “ I asked Mr. Beck what the price was. Fisher asked me if the bull was fat •and all right. . I said, c Y es.’ ”

From this evidence but one conclusion can be fairly reached, and that is, that at the time of the sale the plaintiff positively asserted that the bull was fat and all right. The evidence of the defendant’s agent shows that the offer made by him was based solely upon the fact that the bull was in the condition represented. No particular phraseology was necessary to constitute a warranty. Any assertion made by the plaintiff concerning this bull, if relied upon by tbe defendant and understood by the parties as an absolute assertion, would amount to a warranty. That such was the character of the statements made by the plaintiff, and that they were relied upon by the defendant, is obvious, as the evidence shows that the defendant knew nothing of the animal purchased, and that the only offer made was upon the express provision that the animal was ££ fat and all right.”

The evidence bearing upon this question, both that given by the plaintiff and that introduced by the defendant, being undisputed, not contradictory, unimpeached and not improbable, it was the duty of the jury to give credit to such testimony, and it could not arbitrarily or capriciously disregard it. Hence, we think the County Court was justified in reversing the judgment rendered in the Justice’s Court.

The judgment of the County Court must be affirmed, with costs.

Present — Hardin, P. J., Martin and Merwin, JJ.

Judgment of the County Court affirmed, with costs.


author: Per Curiam:

text:
    The People of the State of New York ex rel. Mary B. C. Dwight, Respondent, v. Benjamin S. Platt and Others, Assessors of the Village of Clinton, in the County of Oneida, Appellants.

      Taxation — review of an assessment by certiorari — when a refusal to answer questions of the assessors does not prevent it — government bonds are ivholly exempt.

    Where a petition, by a person assessed, to obtain a writ of certiorari under chapter 269 of the Laws of 1880, to review an assessment of personal property, alleges that the assessment of the petitioner was illegal, erroneous and void upon the ground that she was not then, and had not been at any time during the year for which such assessment .was levied, the owner of any personal property in the village, in behalf of which such assessment had been levied, which was the subject of taxation, a case is presented where the court is justified in appointing a referee, under section 4 of Such act, to take evidence and to report the same to the court.
    A person, aggrieved by an assessment, is not precluded from reviewing the action of the assessors, because, when examined by them upon “grievance day,” she refused to answer a question as to how many and what amount of United States bonds she had bought during the year preceding the one for which the assessment was levied, when the issue made by the petition and return was whether she had personal property to the amount of $50,000, in the village of Clinton, which was the subject of taxation.

      Semble, that United States government bonds are exempt from taxation, not simply to the extent of their par value, but also to the extent of their market value.
    Appeal by Benjamin S. Platt and others, assessors of the village of Clinton, in the county of Oneida, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the 8th day of July, 1895, directing a reference and appointing a referee to take evidence in relation to the matters set forth in the petition of the relator and the return thereto.

      G. D. da Seth O. Adams, for the appellants.

      Wm. Tovmsend, for the respondent. '
   Per Curiam:

On the 23d day of May, 1895, a writ of certiorari was issued out of the Supreme Court under the provisions of chapter 269 of the Laws of 1880 to review the assessment of the respondent made by the appellants as assessors of the village of Clinton, N. T. They assessed the relator $50,000 for personal property. Upon “grievance day” the respondent appeared before the assessors, made complaint that she had no personal property which was subject to taxation, and asked that the assessment should be stricken from the roll. She was thereupon sworn and examined by them, and testified that she had no personal property which was subject to taxation, and stated what property she had, in what it was invested and the amount of debts she owed. During such examination, after having testified that since “last year” she had bought United States bonds, she was asked: “ Iiow many U. S. bonds and to what amount did you buy as you say ? ” This question she refused to answer. She was further examined by the assessors, who, at the completion of such examination indorsed upon the complaint and examination their disagreement as required by statute, and refused to strike her assessment from the roll.

The appellants made return to the writ, setting forth the respondent’s complaint and examination,' and the proceedings had by, and which took-place before them in regard to such assessment, which concluded with the statement that, after considering the whole matter, and taking into account their personal knowledge and the knowledge they had acquired by diligent inquiry, they believed and decided that the relator was a taxable inhabitant of the village of Clinton when the assessment was made, and ivas the owner of $50,000 of personal property then taxable in said village, and, therefore, they refused to strike her name from the assessment roll. Upon the filing of such return the Special Term made an order appointing Walter Ballou, Esq., referee to take evidence relating to the matters set forth in the petition of the respondent and the return of the appellants thereto, and to report the same to the court with his opinion thereon. Erom that order the appellants appeal.

Chapter 269 of the Laws of 1S80 provides that a writ of certiorari may be allowed, to review an assessment, when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation, or is unequal. It was stated in the petition in this case that the assessment of the respondent was illegal, erroneous and void upon the ground that the petitioner was not then and had not been at any time during the year 1895 the owner of any personal property in the village of Clinton which was the subject of taxation.

Section 4 of the act of 1880 provides that if it shall appear oy the return that the assessment complained of is illegal, erroneous or unequal for any of the reasons alleged in the petition, the court shall have power to strike such assessment from the roll, if illegal, or, if erroneous or unequal, to order a re-assessment. It then provides : “ If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence or may appoint a referee to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute a part of the proceedings upon which.the determination of the court shall be made.”

The single question presented upon this appeal is whether the , Special Term was authorized under this provision of the statute to appoint a referee to take proof in the matter and report the same to the court. The issue made by the petition and return was whether the respondent had personal property to the amount of $50,000 in the village of Clinton, which was the subject of taxation. That under the provisions of section 4 of the statute of 1880, the Special Term was authorized to order a reference in this case, we have no doubt, unless the respondent is prevented from reviewing the action of the assessors by reason of her refusal to answer the question asked by them as to how many and what amount of United States bonds she had purchased.

Section 6 of chapter 176 of the Laws of 1851, as amended by chapter 536 of the Laws of 1857, provides that if the person examined by the assessors shall refuse to answer any question as to the value of his real or personal estate or the amount thereof, the assessors shall not reduce the value of such real or personal estate. An examination of the appeal book discloses that the appellants did not refuse to reduce the respondent’s assessment because of her refusal to answer the question propounded by them, but after a full consideration of the matter they decided that the relator was a taxable inhabitant of the village of Clinton and the owner of personal property to the amount for which she was assessed, and it was for that reason they refused to strike her name from the assessment roll or reduce the amount of her assessment. Upon the issue as to wdiether the respondent was the owner of $50,000 of personal property which was subject to taxation, wo think the court had authority to appoint a referee to take evidence and report the same to the court. (People ex rel. Manhattan Ry. Co. v. Coleman, 1 N. Y. Supp. 112.) Moreover, the record fails to disclose that the appellants at Special Term made any objection to the granting of the order of reference upon the ground that the respondent had refused to answer the question she had been asked by the appellants. Under such circumstances, wrn think that the respondent’s refusal to answer is not available on this appeal. (People ex rel. R., W. & O. R. R. Co. v. Hicks, 40 Hun, 598.)

In the case of The People ex rel. Dexter v. Palmer (86 Hun, 513), ■ where it appeared that the relator was present before the assessors and refused to answer pertinent questions propounded to him by them, a reference was ordered, and it was held that the return of the assessors was not conclusive, but that the court might consider the evidence offered by the relator as well as that offered by the respondents. In People ex rel. U. & D. R. R. Co. v. Smith (24 Hun, 66) it was held that the return was open to contradiction, and that the court might appoint a referee to take and report the evidence produced by the parties. In People ex rel. T. U. R. R. Co. v. Carter (52 Hun, 458) it was said that the return to a certiorari under the act of 1880 was not conclusive, but that the object of the act was to have a review, and that, too, on further evidence.if necessary.

In view of these authorities, it is difficult to perceive how this-court can hold that it-is conclusively established that the relator refused to answer any pertinent or competent question as to the value of her property or the amount thereof. Upon a trial before the referee she may deny that there was any such refusal, and by competent and sufficient proof satisfy the Special Term that there was not. In that event, she would clearly be entitled to give such additional proof upon the question as to whether she had personal property to the amount for which she was assessed, as she might be able to furnish.

Whether the question propounded to the respondent was or ivas not material, we need not decide. The appellants’ contention that it was material and pertinent because she was taxable on the value of the United States bonds held by her so far as their value was above par, cannot, we think, be sustained. It is true it was intimated by the court in People ex rel. M. F. Ins. Co. v. Commissioners (76 N. Y. 64:) that bonds were exempt only to the extent of their par value instead of their market value, but in People ex rel. Leonard v. Commissioners (90 N. Y. 63) that question was more carefully examined, and the court held that the fact that United States bonds were above par in the market did not render the owner liable to assessment and taxation on the excess, and that the exemption was not limited to the par value, but applied to the entire value of the bonds. In referring to the case in 76 N. Y. the court in effect said that the question was of minor importance in that case, and had not been carefully considered, but that upon a fuller consideration of it they were constrained to hold that the exemption applied to the entire value.

These considerations lead to the conclusion that the order appealed from should be affirmed.

. Present — Hardin, P. J., Martin and Merwin, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York, Respondent, v. John A. Williams, Appellant.

      Perjury — form of an indictment for — objection to, how taken — purpose of section 100 of the Penal Code — evidence — hostile witness — an accused, honestly mistaken —faihvre of draughtsman to express in an affidavit the statement of the accused — charge to be considered as a whole — dangerous effect of perjury may be commented upon by the court.

    The objection that an indictment is insufficient can be taken otherwise than by a demurrer, as section 331 of the Code of Criminal Procedure expressly provides that the objection that the facts stated do not constitute a crime may be taken at the trial under the plea of not guilty and in arrest of judgment.
    In framing- an indictment under a statute, all the circumstances which constitute the definition of the crime in the statute, so as to bring the accused precisely within it, must be stated, but no description of the manner in which the offense was committed is necessary other than that contained in the statute.
    An indictment for perjury, under section 96 of the Penal Code, is sufficient where it embodies all the circumstances set forth in that section.
    Section 100 of the Penal Code, declaring that “the making of a deposition or certificate is deemed to be complete within the provisions of this chapter from the lime when it is delivered by the defendant to any other person with intent that it be uttered or published as true,” ivas designed to establish a rule of evidence as to when a deposition should be deemed complete, and it is not so far a part of the offense mentioned in section 96 of said Code, which defines the crime of perjury, as to make it a part of the statutory definition of that crime.
    An indictment which charges that the defendant willfully made oath, before an officer authorized to administer the same, that an affidavit subscribed by him was true; that the affidavit was made and entitled in an action in the Supreme Court; that it was false; that the false statements were material, and that the affidavit wras used in such action, is sufficient, although it does not allege that the affidavit was made with an intent to have it delivered by the defendant to another person with an intent that it be uttered or published as true.
    Upon a trial under such an indictment the attorney in the action in which the affidavit w>as made may testify that the notice of motion based upon the affidavit was served.
    The defendant on trial,under such an indictment, cannot show that the judgment in the action in which the affidavit was made and used was subsequently reversed, as the crime is the same whether such judgment was reversed or affirmed.
    Papers attached to the alleged false affidavit and notice of motion are inadmissible upon the part of the defendant.
    Upon the trial of the action, and upon the cross-examination of one of the witnesses for the People, the defendant’s counsel, in substance, offered to show that the witness had verified a complaint in another action and that this was untrue; the court excluded the testimony.

      Held, that the extent of the cross-examination of a witness for the purpose of testing his credibility was discretionary, and that the discretion had not been abused.
    Where the hostility of a witness has already been shown, the defendant is not harmed by the exclusion of further evidence upon that subject.
    Upon a trial under an indictment for perjury, the defendant’s counsel asked the court to charge “that if the defendant honestly believed when he made the affidavit that the men he saw at West Oneonta were Lewis and Lamont, although he was mistaken, he was not guilty of perjury in that part of the affidavit.” The court replied: “I charge yon that he must have made that affidavit with an intent to commit a crime, and must have knowingly asserted the material facts in that allegation to be true.” The court also instructed the jury that if they believed, under all the evidence, that the defendant was honestly mistaken as to Lewis and Lamont they must acquit him, and further, that if the attorney who drafted the affidavit did not draft it in the language of the defendant, and ■ the defendant did not know its contents, that then the defendant could not be convicted, but that if the attorney informed the defendant of the contents of . the affidavit, and he subsequently swore to it and it was false, the crime of perjury was committed.
    Held, that the charge was substantially correct;
    That isolated parts of a charge would not be seized upon for the purpose of criticism, if the charge as a whole conveyed to the jury the correct rule of law;
    That if the language employed was capable of different constructions, that would be adopted which would lead to an affirmance of the judgment, unless it fairly appeared that the jury was or might have been misled;
    That in considering whether a singl.e proposition is erroneous as charged, the appellate court would construe it in connection with the whole charge, or with so much of it as is connected with and tends to modify or explain the part which is claimed to be objectionable.
    Upon a trial under an indictment for perjury, the court may properly comment upon the dangerous nature of the crime, and upon the results which are likely to follow if the crime is permitted to go unpunished.
    Appeal by the defendant, John A. Williams, from a judgment of the Court of Sessions of the county of Otsego, entered in the office of the clerk of the county of Otsego on the 13th day of December, 1894, convicting him of the crime of perjury, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 13th ' day of December, 1894, denying the defendant’s motion for a new trial made upon the minutes, and also an order entered in said clerk’s office on the 13th day of December, 1894,' denying the defendant’s motion in arrest of judgment.

      Wagner da Fisher, for tlie appellant.

      Frank L. Smith, District Attorney, for tlie respondent.
   Per Curiam :

The sufficiency of the indictment in this case presents an important question, and ivas tlie one most persistently urged on the argument by tlie appellant as a ground for the reversal of the judgment.

In the indictment it was, in effect, alleged that the defendant willfully, knowingly and corruptly made oath before an officer authorized to administer tlie same that a certain affidavit by him subscribed was true, and that the affidavit ivas made and entitled in an action in the Supreme Court. The statements contained in tlie affidavit were then set forth, and it was alleged that they were false. It was also alleged that a motion was noticed in the action; that upon the hearing of such motion the affidavit made by the defendant ivas used, and that the false statements contained in it were material to tlie determination of the motion.

Upon the trial, before any testimony was given, tlie defendant moved that the indictment be quashed and set aside upon the grounds that the indictment was insufficient and defective ; that it did not state an offense or crime; that it did not state the crime of perjury, and that it was not sufficient in substance or form. The defendant also moved that the indictment be dismissed and quashed upon the specific ground that it contained no allegation that the defendant ever delivered tlie affidavit to any person with the intention that it should be uttered or published as true, and that it contained no allegation that the affidavit specified in the indictment was made by the defendant with any intention or for the purpose of having it delivered to any person or with the intention that it should be used in any proceeding. The motion ivas denied by the court obviously upon the ground that tlie sufficiency of the indictment could be raised only by demurrer.

In this conclusion the court was manifestly in error. Section 331 of tlie Code of Criminal Procedure excepts from its provisions, that the objections mentioned in section 323 of that act can be raised only by demurrer, the objection that the facts stated do not constitute a crime, and expressly provides that such an objection may be taken at the trial under the plea of not guilty and in arrest of judgmént. Assuming, as we must, that the grounds upon which the decision was based were untenable, still, if the court properly denied the motion, its ruling should be upheld although it was placed upon erroneous grounds. Thus the question of the sufficiency of the indictment is before us for determination.

Section 96 of the Penal Code, which defines the crime of perjury, so far as it is applicable to the question in this case, reads as follows: “ A person who swears * * * that any * * * affidavit -x- * -x- py ]1jin subscribed, is true, in an action, * * * or states in his * * * affidavit- * * * any material matter to be true which he knows to be false, is guilty of perjury.” The indictment in this case having charged that the defendant willfully, knowingly and corruptly made oath before an officer authorized to administer the same that the affidavit by him subscribed was true, and that such affidavit was made and entitled in an action in the Supreme Court, and that the statements contained in it were material, and that the affidavit was used in such action, it was, we think, sufficient under the provisions of section 96 of the Penal Code.

It seems to be well settled in this State that if an indictment avers the offense, as the statute defines it, the averment is sufficient. In framing an indictment on a statute, all the circumstances which constitute the definition of the crime in the statute, so as to bring the accused precisely within it, must be stated, but no other description of the manner in which the offense was committed is necessary than that contained in the statute. (Phelps v. People, 72 N. Y. 334, 349; Eckhardt v. The People, 83 id. 462; People v. West, 106 id. 293; The People v. Weldon, 111 id. 569, 574; People v. King, 110 id. 418; People v. Rockhill, 74 Hun, 241; People v. Flaherty, 79 id. 48; United States v. Hess, 124 U. S. 483.) The precise words used in a statute to define a crime need not be strictly pursued in an indictment, but Avords conveying the meaning of those employed may be used. It follows that if section 96 of the Penal Code is not in any way changed or modified by the subsequent sections relating to the crime of perjury, the indictment was sufficient.

It is, however, contended by the appellant that section 100 of the Penal Code is so far a part of section 96 as to require an allegation, in the indictment of the matters stated in that section. Upon examining chapter 5 of title 8 of the Penal Code, which relates to the crimes of perjury and the subornation of perjury, we find that section 96 defines the crime of perjury. Section 97 provides that any irregularities in the mode of administering oaths is no defense to the prosecution of that crime. Section 98 provides that the incompetency of the witness is no defense, and section 99, that the witness’ knowledge of the materiality of the testimony or statement is no defense. Section 100 declares that “ the making of a deposition or certificate is deemed to be complete, ’within the provisions of this chapter, from the time when it is delivered by the defendant to any other person with intent that it be uttered or published as true.” We think that this last section should not be construed as being so far a part of section 96, which defines the crime of perjury, as to make it a part of the statutory definition of the crime, but that its purpose was to establish a rule of evidence as to when a deposition is to be deemed complete. Hence, we conclude that as it was charged in the indictment that the defendant willfully, knowingly and corruptly made oath that the affidavit subscribed by him was true; that it was made in an action ; that it was false, and that such false statements were material and used in the action, the indictment was sufficient without especially alleging that the affidavit was delivered by the defendant to another person with an intent that it be uttered or published as true.

We find nothing in the case of People v. Albow (140 N. Y. 130) and the other similar cases cited by the appellant which would justify his contention. These cases are to the effect that while a criminal charge may be supported by inference from the facts which imply the existence of the principal fact constituting the offense, yet, the principal fact must be charged in the indictment. The principal fact in this case was .that the appellant made a false affidavit in an action, which was used therein. This was averred in the indictment, and it contained a sufficient statement of the facts and fairly apprised the accused of the crime of wliicli he was charged. Under such circumstances the indictment should 'not be held insufficient by reason of any narrow and technical objections as to its form. (People v. Spiegel, 143 N. Y. 107; The People v. Buddensieck, 103 id. 487; People, v. Weldon, 111 id. 569; People v. Dimick, 107 id. 13; People v. Klock, 48 Hun, 275.) These considerations lead to the conclusion that the indictment was sufficient, and, therefore, that the court properly overruled the defendant’s motion to quash the indictment and in arrest of judgment.

The appellant also contends that the court erred in admitting in evidence the affidavit made by the defendant without first requiring the People to show that it had been delivered to another person with the intention that it should be uttered or published. as true. Evidence was given upon the trial which tended to show that it was thus delivered. Thus the question raised by that objection related only to the order of proof, and, as that was discretionary, we find no reversible error in the ruling.

The appellant’s third point relates to the insufficiency of the indictment, which has already been disposed of, and hence need not be further considered. On the trial the following question was asked the witness Henry T. Sanford: “ Did you cause this notice of motion to which your attention has been called to be served on Mr. Palmer?.” This was objected to as notin evidence and as incompetent. The objection was overruled, and tbe defendant excepted. In this ruling we find no reversible error. That the notice of motion was served as testified to by the witness, and that the affidavit of the defendant was actually read on the hearing, seem to be clearly established by the evidence in the case.

The defendant offered in evidence an order reversing the judgment in the action in which the affidavit was made. This was objected to as incompetent and inadmissible, and upon the ground that whatever became of the judgment subsequent to the making of the motion was immaterial. The objection was sustained, and the defendant excepted. We think this exception was not well taken. It is not apparent how the subsequent, reversal of the judgment could in any way have affected the question of the defendant’s guilt or innocence of the crime of perjury in making an affidavit used in the action. The perjury was the same'whether the judgment was reversed or affirmed. (People v. Hayes, 24 N. Y. Supp. 194, 201.)

The defendant also offered in evidence all the papers attached to the notice of motion and affidavit of the defendant which were used on the motion. The People’s counsel objected to the admission of the papers, except the notice of - motion and affidavit of the defendant wliicli had already been admitted in evidence. This objection was sustained, and we think properly. The other papers that accompanied the affidavit of the defendant, except the notice of motion, were in no way material in determining the question whether the defendant had made the false affidavit for which he was indicted.

Upon the cross-examination of Alfred C. Lewis, the defendant’s counsel, in substance, offered to show that the witness had verified a complaint in the action of Lewis et al. v. Yagel, which was untrue. This was objected to, and the objection was sustained. We find no error in this ruling. If the witness had been convicted of perjury, then, under the provisions of section 832 of the Code of Civil Procedure and section 714 of the Penal Code, the fact of such conviction might have been proved by the cross-examination of the witness. The court stated that if the complaint was not true, they ought to have had the witness indicted for perjury, and excluded the evidence without stating the particular ground upon which it was excluded. The extent to which such an examination may go to test the credibility of the witness is largely in the discretion of the court. (People v. Casey, 72 N. Y. 393; People ex rel. Phelps v. Oyer & Term. County of N. Y., 83 id. 436, 460.) We are disposed to think that the question whether this evidence should be admitted so far rested in the discretion of the trial court that its rejection was not reversible error.

Upon the further cross-examination of the same witness, after he had testified, “ I have a good deal of feeling against Mr. Williams, so far as what he has done to me, I have, and I am going to try to punish him to vindicate myself,” he was asked, How much money have you spent in trying to punish him?” This was objected to. The objection was sustained, and the defendant excepted. He was then asked: “ How much time have you devoted and how long a time, sir, in trying to convict that man ? ” This question was objected to as irrelevant, immaterial and improper. The objection was sustained, and an exception taken. He then testified : “ I am going to try to do all I can to vindicate myself as far as the law goes.” We find nothing in this 'ruling which would justify a reversal of the judgment. The defendant was permitted to show the feeling against him existing in the mind of the witness. The evidence had already disclosed the hostility of the witness. The extent to which an examination may go to prove the hostility of a witness is in the discretion of the trial judge. As sufficient evidence of the hostility of the witness had already been given, the defendant was not harmed by the exclusion of further evidence on that subject, and lienee the ruling presents no error that would justify a reversal. (People v. Brooks, 131 N. Y. 321, 329; People v. Webster, 139 id. 73.)

The remaining questions raised by the defendant relate to the charge of the court. The defendant’s counsel asked the court to charge: “ That if the defendant honestly believed, when he made the affidavit, that the men he saw at West Oneonta were Lewis and Lamont, although lie was mistaken, he is not guilty of perjury in that part of the affidavit.” To this the court replied : “ I charge you that he must have made that affidavit with an intent to commit a crime, and must have knowingly asserted the material facts in that allegation to be true.” Defendant’s counsel: “ Do I understand your honor to decline to charge in the language that I have asked ? ” The Court: “Yes.” [Exception by defendant’s counsel.] Defendant’s counsel: “ Further, if the defendant honestly believed that one of the men that he saw come into that hotel was A. C. Lewis and the other he took to be Lamont, although in fact it was neither of them, then he cannot be convicted of perjury, so far as that part of the affidavit is concerned.” The Court: “If the jury believe, under the facts and circumstances of this case, under all the evidence, that he was mistaken as to A. C. Lewis and Judge Lamont, honestly mistaken ; if they believe that, then, of course, they should acquit him.” Defendant’s counsel: “ You do not charge in the language that I ask.” The Court: “ No, I charge as I have.” [Exception by defendant’s counsel.] Defendant’s counsel: “ Further, if the witness was honestly mistaken, made that statement and honestly believed it to be true, although he was mistaken, he is not guilty of perjury.” The Court: “ I charge you, if you believe under the facts and circumstances of this case that he did believe when he made that statement to Sanford that he had seen Lewis and Lamont at those places, and that he was mistaken, honestly mistaken, you will acquit him.” Defendant’s counsel: “ But in the 'precise language I have asked, your honor does not charge.” The Court: “No.” [Exception by defendant’s counsel.] .Defendant’s counsel: “ Further, that if the man Sanford did not draft the affidavit in the language of the defendant and the defendant did not know its contents, then it is not the affidavit of the defendant and lie is not guilty of perjury.” The Court: “ I charge you that if he swore to and subscribed to that affidavit, and the -contents of it were false, and that Sanford informed him of the contents of that affidavit, he is guilty of the crime charged in this indictment.” Defendant’s counsel: “ I except* to that language.” The Court: “ With the other facts and circumstances that I have stated ? ” Defendant’s counsel: “Your honor declines to charge in the language which I last asked.” The Court: “Yes.” .[Exception by defendant’s counsel.] Defendant's counsel: “ If Sanford, the draughtsman of the affidavit, did not draw the affidavit in the language given him by the defendant, and the defendant in good faith made the affidavit, relying upon and believing that Sanford had correctly recorded his language, then the . defendant is only answerable for the language that he gave Sanford, and the affidavit, as he understood it was drawn; and if at the time he gave that language to Mr. Sanford and made the affidavit, he gave that language- in good faith, believing it was true, and made the affidavit in good faith, believing it contained only the language he gave Sanford, and believing that language was true, then he cannot be convicted, although he may not have seen Mr. Lewis or Judge Lamont at the times and places stated in the affidavit.” The Court: “ I charge that, and charge in addition to that if this defendant made an unqualified statement of facts to Mr. Sanford, which he put in that affidavit, which he did not know to be true, it is equivalent to a statement of that which he knew to be false.” Defendant’s counsel: “ I except to that iu this case, and ask the reverse, because there is no such allegation in the indictment at all.” The Court: “ I charge it in connection with your proposition.” Defendant’s counsel: “ I except to that.”

We think the defendant was entitled to have his first request ' charged in substance at least. The court did not at first charge the request as made, but, instead of doing so, charged that the defendant must have made the affidavit with an intent to commit a crime, and must have knowingly asserted the material facts in the allegation to be .true. But, as will be seen by an examination of the portion of the record quoted, the court charged that if the jury believed under the facts and circumstances of the case that the defendant believed when lie made the statement to Sanford that he had seen Lewis and Lamont at those places, and that he was mistaken, honestly mistaken,” it should acquit him. An examination of the whole charge renders it quite manifest that the court instructed the jury in substantial accordance with the request of the defendant first above quoted. Under these circumstances, we think the refusal of the court to charge as requested did not .constitute such an error as would justify an interference with the judgment.

Isolated portions of a charge will not be seized hold of for the purpose of criticism, if the charge, as a whole, conveys to the jury the correct rule of law on the question, although detached sentences may be erroneous; and if the language employed is capable of different constructions, that will be adopted which will lead to an affirm- » anee, unless it fairly appears that the jury was, or at least might have been, misled. (Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Losee v. Buchanan, 51 id. 476, 492; The People v. McCallam, 103 id. 587; Hickenbottom v. D., L. & W. R. R. Co., 122 id. 91.) In considering whether a single proposition charged is erroneous, it should be construed in connection with the whole charge or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable. And, although a part of the charge excepted to when isolated from the context may be erroneous, yet the judgment will not be disturbed for that cause, if it appears that the jury could not have been misled. (Sperry v. Miller, 16 N. Y. 407, 413.) Applying the principle of these' cases to the charge under consideration it becomes quite manifest, we think, that the refusal of the court to charge as first requested could not have misled the jury, as the true rule of law governing the question was conveyed to it clearly by other and subsequent portions of the charge.

The only remaining question suggested-by the appellant as a ground for reversing the judgment is the following language used by the court in its charge to the jury: If this defendant has walked into the Temple of Justice, at its very altar struck down the Gfoddess of Justice with impious hand, he should be punished and that swiftly. 'But, upon the other hand, if he is innocent, he should be acquitted of this charge, and it would be your duty as well as your pleasure, no doubt, to do so. The importance of this case lies beyond this trial as well as in it. Perjury is a dangerous crime, hard to meet and hard to prove; but if it can be said that in your county perjury can walk into your courts and come out triumphant, human life, human liberty and the rights of property in your county are in jeopardy. Therefore, I say to you, examine this evidence carefully, weigh it in the scales of honest judgment, apply to it your intelligence, and no matter what the consequences are, because with the consequences or punishment of this crime you have nothing to do. That responsibility rests somewhere else, and you should not consider it; but weigh this evidence and fearlessly render such a verdict as you think it justifies.” The defendant contends that this portion of the charge was exceedingly prejudicial to him, and that its tendency was to inflame the feelings and jiassions of the jury, and prevent it from making that calm and impartial examination of the evidence bearing upon the question at issue, which it was its duty to bring to its consideration. When we consider this portion of the charge in connection with the whole charge, we are unable to hold that it was misleading, or that its tendency was to excite the passions of the jury or prejudice it in the examination of the questions involved.

Having thus considered all the questions raised by the appellant in his brief, and having found none that would justify a reversal, it follows that the judgment and orders appealed from should be affirmed.

Present — Hardin, P. J., Martin and Misrwin, JJ.

Judgment of conviction of the Court of Sessions of Otsego county and orders appealed from affirmed; and, after the judgment is entered in the judgment book, a certified copy of the entry shall forthwith be remitted to the clerk of Otsego county, with whom the original judgment roll is filed, in accordance with the provisions of section 547 of the Code of Criminal Procedure.


text:
    Anna M. Michels, Respondent, v. The City of Syracuse, Appellant.

      Municipal corporations — negligence in, permitting a sloping stone to form part of a sidewalk — notice.

    In an action brought to recover damages resulting from the alleged, negligence of the defendant, a municipal corporation, it appeared that in the latter part of October, 1892, the sidewalk near the place of the accident had been relaid upon a different grade from the sidewalk connecting with it, the difference in grade being variously stated at from four to ten inches; that the two walks were connected by a flag, which was placed in a sloping position, one edge being level with the walk on the higher grade, and the other being level with tho walk on the lower grade; that the surface of such sloping flag from one grade to tho other was twenty-seven inches, and that the plaintiff fell and was injured on the 25th day of November, 1892.
    Upon the trial of the action the plaintiff was permitted to prove that a day or two before the accident a witness had informed the defendant’s superintendent of public works that he had seen five or six persons fall upon the inclined stone. The defense was that the plaintiff had slipped upon an accumulation of ice and snow, which had resulted from rain and snow lately, fallen.
    The court charged the jury that the plaintiff could not recover unless they found that the sloping stone, or some defect in the sidewalk proper, was the sole cause of the injury, and not the sleet or snow.

      Held, that the charge.was sufficiently favorable to the defendant, and that a recovery by the plaintiff must be sustained; that the evidence of the witness, who informed the superintendent of public works of the dangerous character of the sloping stone, was competent upon the question of notice to the city.
    Appeal by the defendant, The City of Syracuse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 20th day of October, 1894, upon the verdict of a jury rendered after a trial at the Onondaga Circuit and also from an order entered in said clerk’s office on the 31st day of October, 1894, denying the defendant’s motion for á new trial made upon the minutes. #

      G.liarles E. Ide, for the appellant.

      William Kennedy, for the respondent.
   Per Curiam :

On November 25, 1892, the plaintiff fell upon the sidewalk on the north side of East Fayette street in the city of Syracuse and •sustained an injury, to recover for which, this action was brought. The action was based on the defendant’s negligence.

In the latter part of October, 1892, the sidewalk near the place where the plaintiff fell and wras injured had been relaid upon a different grade from the sidewalk connecting with it. The difference in the grade was proved to have been from four to ten inches. The plaintiff’s witnesses testified that it was from six to ten inches, while the defendant’s that it was from four to six. The -walk was connected by a flag which was placed in a sloping position, one edge being level with the walk on the higher grade and the other being even with the walk ‘on the lower grade. TJie surface of the slant from the higher to the lower grade was twenty-seven inches.

The plaintiff claimed that the defendant was negligent in permitting the walk to remain in that condition, and that by reason of such negligence her injury occurred. The defendant claimed that the cause of the plaintiff’s injury was an accumulation of ice upon the sidewalk resulting from the rain and snow that had fallen and frozen upon the walk and walks generally in that locality, and, hence, that it was not liable, or guilty of any negligence which caused the plaintiff’s injury.

The court, in submitting to the jury the question whether the defendant’s negligence caused the plaintiff’s injury, charged that if the snow or ice caused this accident or in any way produced it, the plaintiff could not recover, and that to entitle the plaintiff to succeed the accident must have been produced solely by the slope in the walk and not by reason of sleet or snow that had accumulated or was upon it at that time. It further charged that if the snow or ice produced the plaintiff’s injury, or if the jury was unable to say that it resulted alone from the slope in the walk, then tlieir verdict must be for the defendant, and that if it found that it was the snow and ice either alone or in connection with the slope that caused the plaintiff’s injury, its verdict must be for the defendant.

It is not contended by the appellant that the questions of the ■defendant’s negligence and the plaintiff’s freedom from contributory negligence were not, under the evidence, questions of fact and properly submitted to the jury. Its contention is that the evidence was insufficient to show that the plaintiff’s injury was the result of the defendant’s negligence, and, hence, the plaintiff was not entitled to recover. We think this contention cannot be sustained. The evidence introduced by the plaintiff tended to show that the injury resulted solely from the slope in the sidewalk, and that it. was not occasioned by ice or snow. At least one witness who was present when the accident occurred testified that there was no snow or ice upon the walk at that place, and that it was not slippery from the .presence of either. After carefully reading the evidence contained in the record before us, we are satisfied that the question whether the plaintiff’s injury resulted from the slope in the sidewalk was one of fact, and properly submitted to the jury.

The facts in this case render it clearly distinguishable from the case of Taylor v. City of Yonkers (105 N. Y. 202) and other similar cases cited by the appellant. In those cases there was no evidence that permitted the jury to infer that the accident was occasioned from the slope or obstruction in the walk, or that the existence of such slope or obstruction concurred in _ causing the injury complained of. Upon the evidence in those cases it was just as probable that the injury was occasioned by a recent accumulation of ice as from the slope or obstruction in the walk. Under those circumstances the court held that the plaintiff could not recover.

In the case at bar the plaintiff’s evidence tended to show that there was no ice or snow which contributed to the plaintiff’s injury, and the court charged that the plaintiff could not' recover unless the injury resulted solely from the slope in the walk. This was an instruction to the effect that the plaintiff could not recover unless the jury found that the testimony of the witnesses, who testified that there was no snow or ice upon the walk at the place where the injury occurred, was entitled to belief. There was sufficient evidence to justify the jury in finding that the injury resulted from the slope in the walk, and from that alone. As we had occasion to examine a similar question in Goff v. The Village of Little Falls (47 N. Y. St. Repr. 729), and there cited the authorities bearing upon the question, we deem it unnecessary to further refer to them at this time. Thu» it follows that the judgment should not be disturbed on the ground that the evidence was insufficient to justify the jury in finding that the accident resulted solely from the negligence of the defendant in permitting the existence Of this slope in the walk.

We have carefully examined the portions of the charge to which the defendant excepted and to 'which our attention has been called by the appellant in its brief, but we have found no error that would justify an interference with the judgment or that requires special consideration. When the whole charge is considered it is manifest that the case was presented to the jury upon a theory that was as favorable to the defendant as it had a right to expect. If there were any errors in the charge they were in favor of the defendant, and of those it cannot justly complain.

On the trial the plaintiff wras permitted to prove by the witness Thompson, that a day or two before Thanksgiving, which was before the plaintiff’s injury, he informed the defendant’s superintendent of public works that he had seen five or six persons fall upon that inclined stone, and stated to him that if they fell in the same ratio until night some one would get killed or terribly injured. This was objected to, and subsequently the defendant moved to strike it out upon the ground that it was in evidence that there was a changed condition on the day of the accident. The motion was denied, and the appellant excepted. We think the evidence was admissible, at least so far as necessary to show7 that the defendant’s superintendent of public woi’ks had notice of the slope in the sidewalk prior to the plaintiff’s injury, and that the appellant’s exception was not well taken.

The judgment and order must be affirmed, with costs.

Present — ITardin, P. J., Martin and Mbrwin, JJ.

Judgment and order affirmed, with costs. .

DETERMINED IN THE FIFTH DEPARTMENT AT GENERAL TERM, gec.eiix'im*, 1895.


author: Bradley, J.:

text:
    Perry D. Lindholm and John P. Anderson, Respondents, v. Jennie H. Kane, Appellant.

      Married women — when not liable for necessaries purchased for family tise.

    Where a married woman, who has a husband and children, purchases groceries; for family use, the presumption is that the purchases were made by the wife as the agent of her husband and that he alone is liable for their amount; although a wife may, by an agreement to that effect, make herself personally liable for such necessaries.
    Upon the trial of an action brought to recover of a wife the value of certain groceries, it appeared that the vendors knew that she was a married woman and that she was living with her husband ; that the groceries were for family
    ■ use; the only fact in any manner charging her with the payment of the goods was that sometime after they were delivered she promised to pay for them as soon as she could or when she got the money to do it and in that connection said that her husband was not at home then, but that she would pay it; as soon as she could do so. It appeared that nothing was ever said between the parties to the action relative to who wmuld pay for the groceries, and it did , not appear that the goods were charged to her in the bill presented.

      Held, that the defendant was not liable;
    That the court would presume that she purchased the goods as agent for her husband ;
    That the facts did not show an express promise upon her part to make payment,, and that, in the absence of such an express promise, the plaintiffs could not recover.
    Appeal by the defendant, Jennie H. Kane, from a judgment of the County Court of Chautauqua county in favor of the plaintiffs,, entered in the office of the clerk of the county of Chautauqua on the loth day of November, 1894, upon the decision of the court reversing a judgment rendered by a justice of the peace.

      J. JOelevcun Curtiss, for the appellant.

      James I.. Weeks, for the respondents.
   Bradley, J.:

The action was to recover the amount of a bill for groceries, alleged to have been sold and delivered to the defendant; also, to recover a further sum for constructing a sidewalk on the defendant’s premises. The latter claim was not questioned. Nor was there any controversy had about the amount of the bill for groceries. The alleged liability of the defendant for them was denied and contested by her. The only question for consideration is whether or not the evidence was sufficient to permit the conclusion that the defendant was personally liable for the grocery bill. She was a married woman, having a husband and children. The groceries were purchased for family use. These facts were known to the seller. The groceries were necessary for the family; and nothing appearing to the contrary, the presumption would be that pueh purchases were made by the wife as the agent of the husband, and that he alone was liable to pay the bill. (Kegney v. Ovens, 18 N. Y. St. Repr. 482; Winkler v. Schlager, 64 Hun, 87.) The wife, however, may', by agreement to that effect, charge herself personally with liability for necessaries purchased by her for the family of which her husband is a member. (Laws of 1884, chap. 381; Tiemeyer v. Turnquist, 85 N. Y. 516; Hallock v. Bacon, 45 N. Y. St. Repr. 484.)

It follows that to charge the defendant with such liability it was necessary to make it appear by evidence that she undertook to become so, and that the goods were sold to her on her credit. The evidence of the plaintiff Lindholm on the subject is that, in 1892 and 1893, the defendant purchased the groceries; that she came to the store in the first.place, and sometimes the children came, after the groceries; that some were taken away by them and some of them were delivered at the house; that he presented a statement of the account to her, and that she said she was short of money; that she would, pay it when she got the money ; that she would pay it soon. “ Q. Any further conversation than you detailed this morning ? A. I do not remember the details; if I remember, I swore that she said she didn’t have any money with her. Her husband was not at home then, but that she would pay it as soon as she could.” “ Q. At any other time did she make any statement in regard to her agreement to pay for the groceries, except what you have stated, that you remember of? A. No. Q. When you presented this bill to her did she deny her liability for it at any time ? A. No.” “ Q. Did you ever have any talk in regard to who was to pay for the groceries; if so, state it ? A. I did not.” The witness further testified that the defendant made some payments on the account; the amount paid by her the witness did not recollect. This constitutes the evidence on the part of the plaintiffs bearing on the question, and the evidence of the defendant tended to prove that she did not purchase the goods on her credit.

It does not appear that, when she ordered the goods, the defendant, by any expression, indicated that she made the purchase on her personal credit, nor that she was informed by the seller that they were, or would be, furnished on her account, nor does it appear to •whom the account, as presented to her, was charged. And, in fact, the seller says there was no talk with her as to who was to pay for the groceries. The only fact, therefore, upon which the plaintiffs can rely to charge the defendant is, that sometime after the goods were sold and delivered she promised to pay when, or as soon as she could, or when she got the money to do it. In that connection she said, “her husband was not at home then, but she would pay it as soon as she could.”

So far as appears nothing had occurred at the time the groceries were purchased and delivered to repel the presumption that the defendant was acting as the wife and in the agency of her husband and at that time such was the inference. (Strong v. Moul, 22 N. Y. St. Repr. 762.) The question, tlierefo/e, is whether the evidence on the part of the plaintiffs tends to prove that anything occurred subsequently to permit the conclusion that the goods were sold and delivered upon any agreement or understanding between the seller and the defendant that they were purchased, sold and delivered upon her personal credit. This depends upon the effect which may be given to her ¡promise wliicli the evidence on the part of the plaintiffs tends to prove was made to pay for the goods. It may be that such promise would be some evidence of an agreement in the outset if nothing appeared to the contrary. That question, however, it is unnecessary to determine, since the evidence of the plaintiff; Lindholm is that there was never anything said by or between him and the defendant “in regard to who was to pay for the groceries,” and it does not appear that the goods were charged to her in the hill presented. Under such circumstances it is difficult to see anything to legitimately support the charge that the sale and purchase of the goods were made upon the agreement of the defendant to be personally liable to pay for them. And iii the absence of such an agreement or understanding her promise must be presumed to have been made in her relation of wife and in the like exercise of her implied agency as to the transaction of ordering the groceries for the family. This conclusion the evidence requires.

In the cases where the wife, known by the seller to be such, has been held liable for family supplies purchased while she was living with her husband, the recoveries were supported by a special agreement on her part to pay for them, and such agreement was held to be necessary for the purpose. The rule in that respect is not modified by the act of 1884. (Tiemeyer v. Turnquist, 85 N. Y. 516; Hallock v. Bacon, 45 N. Y. St. Repr. 484.)

The doctrine applied by the Court of Common Fleas of the city of New York in Ehrich v. Bucki (7 Misc. Rep. 118; 27 N. Y. Supp. 247; 57 N. Y. St. Repr. 540) is not contrary to the proposition before stated. That case, however, would be less liable to be misunderstood if the facts appeared more fully than they do in the report of the case. A different presumption arises when purchases are made having relation to the separate estate of the wife. In the present case the trial was before a justice and a jury. The justice charged the jury, and in his charge instructed them that there was not sufficient evidence to establish the fact that the defendant authorized the seller of the groceries to charge her for them. An exception was taken. This in practical effect was a direction that the jury find for the defendant on that branch of the case. And if there was any evidence to support a verdict against her as to that alleged claim his charge was error, requiring reversal of the judgmeat rendered in the Justice’s Court, otherwise no legai right of the plaintiffs was prejudiced by it.

The view taken is that there was no evidence to permit a recovery by the plaintiffs against the defendant, and, therefore, there was no error to the prejudice of the plaintiffs in the charge of the justice to the jury. The question' of the propriety of the assumption by the justice of the responsibility of instructing the jury and in directing a verdict requires no.,consideration.

The judgment of the County Court should be reversed and that of the Justice’s Court affirmed!

Lewis, "Ward and Adams, JJ., concurred.

Judgment of the County Court reversed and that of tlie Justice’s Court affirmed, with costs in the County Court and in this court. ■ '