author: Andrews, J.

text:
    Andrew Satterly, Respondent, v. Robert Winne, Appellant.
    In proceedings under the statute (Chap. 174, Laws of 1883) to lay out a private road, exact and technical accuracy is not required, but simply a substantial compliance with the statute.
    A description in an application by reference to a private way nsed by permission of the owner of the land for a great number of years, so that it has come to be called a road, is sufficiently definite.
    The statute does not require that the courses shall be specified by the compass in degrees and minutes; and where the general course is given, as easterly, etc., and the exact course and distance can be determined from Other particulars in the application, or by natural monuments referred to therein, the statute is substantially complied with.
    An application for a private road gave the width of the proposed road, and described it as “ beginning at a pair of bars at the westerly terminus of a road known as the Winne road,” a private way so called which had been used with the consent of the owner for over sixteen years, and by such user had become plainly marked on the ground; the description continued, “ running from thence (said bars) easterly along the bed of the said Winne road,” and the distances also were given approximately. Held, that the center line of the “ Winne ” road-bed must he considered as intended to he the line described in the application; and that the reference to said road was a sufficient specification of location, courses,” etc., as required by the statute.
    Where an order of commissioners laying out a private road was indefinite and defective, but referred to the application, declaring that the commissioners had ordered the road to he laid out pursuant to the application, held, that the description in the application should he considered as incorporated in the order ; that it controlled and determined the loom of the road.

      It seems if the jury in such proceedings find in favor of laying out the road, the commissioners are bound to lay it out as described in the application; they have no discretion either to refuse to lay it out, to change its location, or to depart in any respect from the road proposed by the applicants.
    (Argued December 11, 1885;
    decided January 19, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the third judicial department, made December 16, 1882, which granted a new trial on exceptions ordered to be heard at first instance at General Term, the complaint having been dismissed on trial.
    This was an action for trespass; the defense was that the locus in quo is a private road duly laid out and opened.
    The material facts are stated in the opinion.

      John E. Van Etten for appellant.
    If either the commissioners, or the referees, or the Supreme Court acquired jurisdiction of the subject-matter of the road proceedings, their adjudications cannot be collaterally impeached for any errors that may have occurred. (Dobson v. Pearce, 12 N. Y. 164; People v. Com'rs, 37 id. 363; M. E. Church v. Mayor, etc., 55 How. 61; Wiggin v. Moyor, etc., 9 Paige, 16, 20; In re Arnold, 50 N. Y. 26; Dolan v. Mayor, etc., 62 id. 472; Sherman v. Trustees, etc., 27 Hun, 392; Elliot v. Peirsol, 1 Pet. 328.) The petition or application for the road under the statute, in the case of a private road, confers jurisdiction upon the commissioners in reference to the subject-matter, and controls any order they may make. (Laws of 1853, chap. 174, §§ 1, 12; 1 R. S. 517, §§ 127, 138; Marble v. Whitney, 28 N. Y. 297.) The description of the road as contained in the application was sufficiently definite and certain to uphold the proceedings upon a direct review. (People v. Com'rs, 37 N. Y. 360; People v. Taylor, 34 Barb. 481; Haverman v. Tavy, 50 How. 512; People v. Albright, 23 id. 306-310; Coleman v. Manhattan, 94 N. Y. 229; 18 Weekly Dig. 241; Crocher v. Crocher, 5 Hun, 587; Van Bergen v. Bradley, 36 N. Y. 317.) The center of the old road-bed will be intended to be the center line of the road laid out. (People v. Com'rs, 13 Wend. 310; Herrick v. Stone, 5 id. 580; People v. Com'rs, 1 Cow. 23; 37 N. Y. 360; Johnson v. Loveless, 18 Weekly Dig. 49.) Even if the commissioners did not acquire jurisdiction it was conferred on the referees by plaintiff’s appeal. (People v. Albright, 23 How. 309; 1 R. S. 519, § 154.) The referees not only had power to have the proofs of allegations of the parties de nova upon the merits, but their decision, or that of any two of them, is conclusive in the premises. (1 R. S. 519, § 54; People v. Com'rs, 37 N. Y. 363; 2 R. S. [6th ed.] 162, § 154; People v. Sherman, 15 Hun, 579.) The defendant cannot, in this collateral action, treat the adjudications already had with contempt and as void for want of jurisdiction. (People v. Diver, 19 Hun, 263; People v. Burton, 65 N. Y. 453; Dyckman v. Mayor, etc., 5 id. 440.) Had the commissioners’ order been questioned before the referees, they had power to make such order as the commissioners should have made. (People v. Albright, 23 How. 310; People v. Com'rs, 8 N. Y. 476.)

      William Lounsbery for respondent.
    The application for this private road not being in accordance with the statute was void and conferred no jurisdiction on the commissioner. (Laws of 1853, chap. 174, § 1, p. 308.) The requirement that notice of application shall be served upon the persons to whom it is addressed is jurisdictional and cannot be waived or dispensed with. (People v. Judges of Herhimer, 20 Wend. 1S6 ; People- v. Robertson, 17 How. 74; People v. Suprs., etc., 36 id. 544.) The order is not in conformity with the statute because the road as described in it is not the road described in the application. (Laws of 1853, chap. 174, § 12; People v. Taylor, 34 Barb. 481.) The location of the road must stand upon the order made by the commissioners and not upon any designation subsequently made by them pointing out a location. (Stewart v. Wallis, 30 Barb. 344.)
   Andrews, J.

The question in this case turns upon the validity of the proceedings taken in 1877, to lay out a private road over the lands of the plaintiff and Samuel L. Satterly. If the road was legally laid^out where the jury in fact intended to lay it out, and where it was staked out by the commissioners, the locus in quo of the alleged trespass was within the boundaries of the road, and the action cannot be maintained. The act of 1853 (Chap. 174, § 1) prescribes that an application for a private road shall be made in writing, “ specifying its width and location, courses and distances, and the names of the owners and occupants of the land through which the road is proposed to be laid out.” The application in this case was in writing, for the laying out of a private road, the width of one and a half rods, beginning at a pair of bars at the westerly terminus of a road known as the ‘ Winne road,’ on the easterly side of the old Kingston and Delaware Turnpike road, and which now leads from the comer, in the town of Shandaken, etc., and which said Winne road ’ leads from said road to a place called Dunderbark; and running from thence ( said-bars) in an easterly course along the bed of said Winne road ’ to the foot of a short hill near a small apple tree, about one hundred and twenty yards; there, leaving the old bed of said Winne road,’ and continuing in an easterly course along the north side of the said hill about two hundred yards, and there again striking the bed of said ‘ Winne road,’ near a thicket of hemlocks and laurels, on the north side of the road ; thence in a northerly course along the bed of said ‘ Winne road ’ to the lands of Samuel L. Satterly, about eighty rods ; thence continuing in a northerly course along the bed of said 6 Winne road ’ over the lands of said Samuel L. Satterly to the lands of William Satterly, about eighty rods, and which said proposed road is wholly in the said town of Woodstock (Ulster county), and runs through the lands of Andrew Satterly and Samuel L. Satterly.”

It will be noticed that the application describes the proposed road as being in the town of Woodstock, county of Ulster, and the width, courses, distances and the termini, and further describes it as following the bed of the old “ Winne road,” except1 for the distance of about two hundred yards on the second course. The “ Winne road ” was a way across the lands of the plaintiff and his brother Samuel L. Satterly, which had been used for sixteen or eighteen years by the defendant, and others. It was plainly marked on the ground by such user, but had never been legally laid out, and its use by the defendant had been by the license of the owners of the land only. The description in the application, of the termini of the proposed road, is indefinite, except as they are made definite by the reference to the “ Winne road.” The point of commencement is the “bars,” and the point of termination the “lands of William Satterly.” But where the “ bars ” were located, and at what precise point upon the lands of William Satterly the road was to terminate, is made definite by the reference to the “Winne road,” provided that road itself is such a definite monument as may be referred to, to make certain the indefiniteness of the description in other respects. The center line of the old road-bed must be intended to be the line described in the application. (People ex rel. Hawver, v. Commissioners, 13 Wend. 310.) The location of this centerline will determine the exact termini of the proposed road. It was held in People, ex rel. Thomas, v. Commissioners, etc. (37 N. Y. 360), that a description of a proposed highway by reference to an established highway, was a sufficient description by routes and bounds,” under the General Highway Act, It is true that the description of public highways is usually matter of public record, although this is not always the case, and what the fact was, in this respect in the case cited, does not appear. A private way by permission, not a matter of record, is a less certain monument than a recorded highway. But where such a way has been used for a great number of years, so that it has come to be called a road, there is little chance of uncertainty, and a description in an application by reference to such road gives substantial certainty to the description. The statute must doubtless be substantially complied with, but exact and technical accuracy in proceedings for the laying out of a private road, conducted, as they usually are, by persons not lawyers, cannot be expected. Few private roads would bear the test of a scrutiny which required a verbal and literal conformity to the words of the statute. We think the application did specify with sufficient distinctness the termini of the proposed road. The course and distance of each line are stated in the application. The courses are not given by the compass, and the distances are approximate. But these are also made certain by reference to the “ Winne road,” except where on the second course the proposed road leaves the ££ Winne road ” for the distance of about two hundred yards. But natural monuments—the apple tree, the hill and the thickets of hemlock and laurel^—mark the divergence and the point where the old road-bed again becomes the line of the new road. The statute does not require that ■ the courses shall be specified by the compass in degrees and minutes, and where the general course is given in the application as easterly, or westerly, etc., and where the exact course and distance can be determined from other particulars in the application, or by natural monuments referred to therein, the statute is substantially complied with. We are of opinion, therefore, that the application conformed to the statute, and gave jurisdiction to the commissioners to call a jury, and authorized the jury to act upon the application. It is undisputed that the jury, before making their determination, proceeded, in presence of the commissioners, to view the premises; that the proposed road was staked out, and that the damages were assessed for the land within the boundaries so designated.

The most serious objection in the case arises upon the order of the commissioners laying out and describing the road after the jury had found that it was necessary, and had assessed' the damages. The order in describing the road does not follow the description in the application. It describes the road as beginning at the bars, etc., and then running an easterly course of nine hundred and eighty-eight feet, and then a north-east course, seven hundred and sixty feet, and thence bearing a little more east, three hundred and nine feet, thence bearing more north, two hundred and fifty-two feet,” and so on. It is indefinite, and except that it refers to the application and declares that the commissioners had ordered that the road be laid out pursuant to the application, according to a survey made by them, would be incurably defective. The first course given in the order, running nine hundred and eighty-eight feet, embraces the first two courses in the application. The distance by measurement of the first two lines, as given in the application, is about one thousand feet. The inference from the description in the order, unaided by the application, would be that the first course of nine hundred and eighty-eight feet was a straight line, whereas in fact there is a bend in the road, as described in the application, before reaching the termination of the second course, and a straight line from the bars to the termination of the second course would leave the locus in quo outside the road. But if the description in the application is deemed to be incorporated into the order, the two descriptions can be substantially reconciled. It would then appear that the distance of nine hundred and eighty-eight feet was not a straight line, and so as to the other discrepancies and uncertainties in the lines specified in the order. We are of opinion that the description in the application is the controlling one and determines the actual locus of the way. In laying out a private road, if the jury find in favor of laying out the road, the commissioners are bound to lay it out as described in the application, and have no discretion either to refuse to lay out the road, or to change its location, ox* to depart in any respect from the road proposed by the applicants. They have no power to decide any thing, but perform simply the ministerial functions prescribed in the twelfth section of the act of 1853. That section is as follows : “ The commissioners shall annex to such verdict (of the jury) the application mentioned in the first section of this act, and hand the same to the town clerk, who shall file the same, and the commissioner or commissioners shall lay out and make a record of said road, as described in the petition of the applicant.” It is true that the road certified by the jury does not become a legal private road until the commissioners have perfoianed the duty imposed by this section. That the verdict and application were duly filed is not questioned. The commissioners made an order laying out the road. The order declares that it was laid out pursuant to the application. The description in the order does not follow the language in the application. But this we conceive cannot be essential, provided the description in the application is incoi’porated into the order by reference, and the two descriptions are not irreconcilably repugnant. While on the one hand we recognize the importance of the rule that proceedings in invitum to divest an owner of his property ought to be carefully watched so that no injustice be done, on the other hand we cannot fail to recognize the importance of the public policy, sanctioned by constitutional provision, which x-equires that facilities be furnished for private ways, so that the property of citizens may be made accessible. This policy will be best promoted by a fair and reasonable, instead of a strained construction of the statute authorizing the laying out of private roads, and we are of opinion that there was no defect which invalidated the proceedings in this case.

The point that the road ran across the land of one Evans, who was not named in the application, or notified, and whose damages were not assessed, is not supported by the evidence taken in this proceeding, and the point was not x-aised on the trial. If the question was before us, it would we think admit of great donbt whether the plaintiff could allege a defect or omission in" the proceedings, affecting the right of a third person, with whom he was notin privity, and who raises no question, and so far as appears makes no complaint.

We think the complaint was properly dismissed at the Circuit, and that the order of the General Term should be reversed and judgment entered for the defendant.

All concur.

Order reversed and judgment accordingly.


source: Caselaw Access Project

author: Huger, Ch. J.

license: Public Domain

text:
    Samuel Billings, Respondent, v. Leslie W. Russell et al., Impleaded, etc., Appellants.
    The fact that a mortgage was given, or it seems that property was transferred, by a debtor for a valuable consideration, is not, as a proposition of law, inconsistent with the existence of an intent on the part of the debtor to defraud his creditors, or of such knowledge thereof, on the part of the mortgagee or purchaser as will avoid the mortgage or conveyance, and in this regard no distinction can be made between the consideration furnished by" an existing debt and that arising in.any other manner. When there is an actual intent to defraud, no form in which the transaction is put can shield the property transferred from the claim of creditors.
    Proof, therefore, that a mortgage executed by an insolvent debtor was given to secure a debt actually owing by the mortgagor does not, as matter of law, disprove the existence of a fraudulent intent on the part of the debtor.

      Auburn Mr.. Bank v. Mitch (48 Barb. 344), Archer v. O’Brien (7 Hun, 146), Jewett v. Notewqre (30 id. 193), Bedell v. Oha.se (34 N. T. 386), distinguished.

      Billings v. Billings (31 Hun, 65), reversed.
    (Argued December 14, 1885;
    decided January 19, 1886.)
    Appeal from order of the General Term of the Supreme Court in the third judicial department, made November 19, 1883, which reversed a judgment in favor of defendants, Russell & Sawyer, entered upon the report of a referee. (Reported below, 31 Hun, 65.)
    This action was brought to foreclose a mortgage. Said defendants were judgment creditors of the mortgagor and defen dedon the ground that the mortgage was fraudulent and void as against the creditors of said mortgagor.
    The facts so far .as material are .stated in the opinion.

      Leslie W. Russell for appellants.
    Where, upon appeal to the General Term from a judgment in an action tried by the court, the record does not contain the evidence, but the appeal is heard and determined solely upon the findings of fact and law, in order to succeed it is incumbent upon the appellant to show that the trial court could not, in any view of the facts found, properly order the judgment. (Ag. Ins. Co. v. Barnard, 96 N. Y. 525; Van Tassel v. Wood, 76 id. 614.) The question of fraudulent intent is one of fact. (2 R. S. 137, § 4; Warner v. Blakeman, 4 Keyes, 487.) A fraudulent contract like the one here cannot be used to defeat the judgment creditors of an insolvent. (Stearns v. Gage, 79 N. Y. 102, 107; Parker v. Conner, 93 id. 118, 128.) The debt for which the mortgage was given may be valid and remain, but the security attempted to be put ahead of the appellants’ judgment cannot stand. (Waterbury v. Sturtevant, 8 Wend. 353, 361; Garland v. Rives, 4 Rand. 282; 15 Am. Dec. 756, 766, 767; Lowry v. Pinson, 2 Bailey’s Law, 324; 23 Am. Dec. 140; Shelley v. Boothe, 73 Mo. 74; 39 Am. Rep. 481.)

      C. A. Kellogg for respondent.
    If the property of a debtor is applied upon a bona fide debt the office of the statute is fulfilled, even if it be done with general design to hinder and delay other creditors, that not being the fraud, contemplated. (Auburn Ex. Bk. v. Fitch, 48 Barb. 344; Murphy v. Moore, 23 Hun, 98; Hale v. Stewart, 7 id. 591; Roeber v. Bowe, 26 id. 557; Waterbury v. Sturtevant, 18 Wend. 353; Jewett v. Noteware, 30 Hun, 192; Cowenhoven v. Hart, 21 Penn. St. 495.) A debtor may prefer one creditor to another and such creditor may acquiesce in that preference. (Archer v. O'Brien, 7 Hun, 150; Redell v. Chase, 34 N. Y. 388.) The intent meant by the statute must be the intent on the debtor’s part to keep from his creditors something they had a right to have applied on their debts. (Hale v. Stewart, 7 Hun, 591; Archer v. O'Brien, id. 150; Auburn Ex. Bk. v. Fitch, 48 Barb. 353, 355.) There could be no such intent in this case as the mortgage only applied the property to the security of a
      bona fide debt and no more. (48 Barb. 344; 30 Hun, 192; Wait on Fraud. Cont. 513; 7 Hun, 591, 150; 40 id. 194; Roeber v. Bowe, 26 id. 557; Seymore v. Wilson, 19 N. Y. 421; Weaver v. Barden, 49 id. 300; 21 Penn. St. 495.) The debtor had a right to secure plaintiff and the latter had a right to allow him to remain on the premises as long as he pleased, as against his mortgage, and no other creditor could say he was injured by plaintiff’s leniency. (48 Barb. 351.) Although thé referee has characterized the mortgage as fraudulent and void, that does not change its essential character as made out by the other findings. (Coleman v. Burr, 93 N. Y. 17-31.) The referee’s findings are inconsistent and those should he followed which are most favorable to the defeated party and others disregarded. (Schwinger v. Raymond 83 N. Y. 192; Bonnell v. Griswold, 89 id. 122.)
   Huger, Ch. J.

Owing to the method in which this case is presented by the record, the question of fact discussed by the .General Term, does not seem to have been properly before that tribunal. Hone of the evidence taken on the trial is contained in the error book, and the case was considered below, as it must be here, solely upon the facts found by the referee. It was, therefore, impossible for the General Term to review the case upon the facts, as they were not before it, and its order of reversal, must have been based upon assumed errors of law to which our right of review is necessarily confined. (Case v. Phelps, 39 N. Y. 164.) This limitation upon the right of review is further imposed by the language of the order of reversal which does not state, that it was based upon questions of fact. In such case the Code requires us to assume that the order was founded upon errors of law alone, and unless such errors are discovered in the findings of the referee the order of reversal cannot be sustained. (§ .1338, Code of Civil Pro.) The referee has found that the mortgage in suit was given by the mortgagor to secure a debt actually owing by him to the plaintiff, but “ with the intent to hinder and delay his creditors, and for the purpose of placing the lands and premises described, in the complaint, beyond the reach of his said creditors, and securing the use and retaining the possession thereof as a home for himself and family,” and that the same was received by the plaintiff with the full knowledge of the aforesaid intent and purpose on the part of said George Billings, and with a like intent and purpose on his own part accepted and received said bond and mortgage.” As a conclusion of law the referee found that said mortgage was “ fraudulent and void as against the creditors of said George Billings.”

The statute relating to fraudulent conveyances provides in express language, that every conveyance of any estate or interest in lands, made with intent to hinder, delay or defraud creditors, shall, as against such creditors, be void. It is further provided that in all cases arising under this statute the question of fraudulent intent shall be deemed a question of fact and not of law,” and that it shall not be so construed as to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser, had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor. (Tit. 3, chap. 7, part 2 of R. S.)

It thus appears that the finding of the referee is stated substantially in the language of the statute, and must be deemed conclusive as to the intent with which the mortgage was given, unless some controlling fact is also found, which nullifies it,, and renders the conclusion of law predicated thereon, erroneous. It is inferable from the opinion of the court below that it supposed such a fact was discovered, in the finding that the mortgage was given for a valuable consideration. We are of the opinion, however, that the fact of the payment of a valuable consideration upon a transfer of property is not, as a proposition of law, inconsistent with the existence of an intent to defraud, and that in the application of this principle, no distinction can be made between the consideration furnished by an existing debt, or one arising in any other manner. It is undoubtedly evidence, and usually strong evidence, of the intent with which the conveyance is made, but is simply a circumstance to be considered by the court in determining the question of intent. The statute itself declares all conveyances made with a fraudulent intent absolutely void, except in the case of those made upon a good consideration and in ignorance on the part of the purchaser of the fraudulent design of his grantor. It contains, therefore, the strongest implication that the payment of a valuable consideration is not inconsistent with the existence of an intent to defraud, and of such knowledge on the part of the purchaser, of the fraudulent design, as will avoid a conveyance made to him, even though accompanied by the payment of an adequate consideration. The vice in the argument of the court below, if any there is, seems to be in its assumption, that the mere payment of a good consideration by the vendee, upon the transfer of property by an insolvent debtor, as matter of law disproves the existence of a fraudulent intent in' such a transaction. It seems to us that this very base illustrates the error contained in such an assumption.

The debtor here was enabled by the inducement, held out to his creditor, in the offer to secure his debt, to obtain from him an assurance that the property mortgaged should be so held and protected by the mortgage from other creditors, as to enable the mortgagor to occupy and enjoy it for an indefinite time, for the benefit of himself and his family. Although the form of the transaction was that of security for a debt, its real object and design, was to so incumber the property by an apparent lien, as to, mislead creditors and enable the debtor to possess and enjoy its beneficial fruits. The effect of the transaction was really to diminish the actual value of the security given, and enable the debtor to secure the difference, between the present value of a security payable in the future without interest, and the present value of the land mortgaged. This .was property and justly belonged to the creditors of the insolvent debtor, but was practically withdrawn from them by the transaction.

It is argued, if the debtor retains any interest in the property mortgaged, that such interest is property, and ban be reached by the creditor, and, therefore, he is not defrauded. It is possible that this might be so if the whole transaction was made known, but the vice here is the imposition of a fictitious, because unenforceable incumbrance, equal to the entire valuó of the property mortgaged. It is no answer to such a transaction, to say that the same result could have been accomplished by lawful proceedings, taken by the voluntary action of the creditor. It was not so done, and whether it ever would have been accomplished in that way is purely a matter of conjecture. The continued possession of the premises by the debtor was here imposed as the condition of giving the security. Other situations can readily be conceived where the transfer of property, for a valuable consideration, may be made the cover for fraudulent practices. Exchanges by which one kind of property is converted into another more easily concealed or transported; the incumbrance of visible and unavailable property, and the retention of that which is convertible, or even the reverse of this, and other cases, where the aggregate value of the debtor’s property is not diminished, but an apparent obstacle to a creditor’s proceedings is created, are among the methods by which frauds may be perpetrated, by an insolvent debtor. Such transactions can be justified upon the reasoning of the court below, but they are in fact, fraudulent and condemned by the statute. (Pettit v. Shepherd, 5 Paige, 493, 501).

The cases cited by the General Term to sustain the position taken by it do not seem to us, to bear out the proposition advanced. The case of Auburn Ex. Bank v. Fitch (48 Barb. 344) was a review by the General Term upon questions of fact of the judgment of the trial court in favor of the plaintiff, and the reversal was based altogether upon alleged erroneous findings 'of fact. In Archer v. O'Brien (7 Hun, 146, 150), the question arose on exceptions to the charge of the trial judge, and the court there held that the debtor’s vendee was entitled to a charge that “If he was a bona fide creditor and took a bill, of sale as security for his debt, and had no notice of any fraudulent design on the part of the vendor, he was entitled to hold the property as against the other creditors of his vendor.” The proposition of law- contained in this request was undoubtedly correct, but it affords no countenance to the doctrine that the bona fides of the debt alone is conclusive upon the question of a fraudulent intent. Even the case of Jewett v. Noteware (30 Hun, 192) is sustainable upon the ground that fraudulent intent would not be predicated of the facts, the only fraud found, being the intent on the part of one creditor, to get payment of his debt in preference to another, knowing that the debtor did not possess property sufficient to pay both. The report of the case does not show that there was any finding of fact that the mortgage there was given to defraud creditors, and therein it differs radically from the case at bar. In the case of Bedell v. Chase (34 N. Y. 386), the plaintiffs had purchased of an insolvent firm their stock of goods, and paid for them by their own notes, maturing at different periods in the future. It was left to the jury upon an unexceptional charge, to say whether the transaction was fraudulent or not, and they found as a question of fact that it was an honest purchase, and this finding was sustained by the court on appeal.

We have thus briefly referred to the cases cited in the court below, and do not find in them authority for the proposition claimed. The authorities, aside from the statute itself, holding a contrary proposition, are quite numerous, and cannot, within reasonable limits, be either all referred to, or extensively quoted from.

Wait on Fraudulent Conveyances, § 208, says: “If the alienation is effected with a mutual design to hinder, delay or defraud creditors, the presence even of the most bounteous or adequate consideration will not save or cure it.” “ It is not sufficient that it be upon good, consideration or bona fides, it must be both,” citing many cases. (Kerr on Frauds, 199.) May on Fraudulent Conveyances, 233, says: “Mala fides supersedes all inquiry into the consideration, but bona fides alone is not always sufficient to support a transaction not founded on any valuable consideration.” Senator Edwards, delivering the opinion of the Court of Errors in Waterbury v. Sturtevant (18 Wend. 354), said : “ This, therefore, appears to be a case between a debtor and a bona fide creditor in which the former has preferred the latter to his other creditors, and if simply a case of this description unaffected with fraud, the conveyance must be considered legal and valid.” The case of Blennerhassett v. Sherman (105 U. S. 117), was where a mortgage was also given to secure a bona fide debt, and yet it was held by the court that, having been given for the purpose of facilitating the commission of a fraud by the mortgagor upon his other creditors, it was void. The frequent case of a mortgage of chattels for a bona fide debt where the mortgagor is permitted to remain in possession of the property, and dispose of it, is an illustration of the rule that a fraudulent purpose may be covered by a conveyance given to secure a bona fide debt. A conveyance to a creditor of property sufficient to pay his full debt, upon condition that he will give a portion to the grantor’s wife, was held to be fraudulent in Kissam v. Edmonston (1 Iredell’s Eq. 180). It was said by Judge Eakl, in Starin v. Kelly (88 N. Y. 421), that “ under the statute a creditor assailing a transfer of property as fraudulent may succeed by simply showing a fraudulent intent on the part of the vendor, or such intent on the part of the vendee. If, however, the vendee shows that he paid a valuable consideration for the property transferred to him, the proof of the fraudulent intent of the vendor only, is not sufficient; then there must be proof also of a fraudulent intent on the part of the vendee, or that he had notice of the vendor’s fraudulent intent.” In Syracuse Chilled Plow Co. v. Wing (85 N. Y. 421, 426), this court, Judge Iíapallo writing the opinion, distinctly recognized the principle that a mortgage, though given for a just debt, might be assailed as fraudulent, and held that the question as to the intent with which it was given, was purely one of fact. (See, also, Kimball v. Thompson, 4 Cush. 441; Gragg v. Martin, 12 Allen, 498; Bradley v. Ragsdale, 64 Ala. 558, 559.) It was held in Schmidt v. Opie (33 N. J. Eq. 141) that if a mortgage be given for a fraudulent purpose, even though for an honest debt, and the mortgagee was cognizant of the mortgagor’s purpose, it is fraudulent as against creditors. Similar authorities are found in Garland v. Rives (4 Randolph, 282), Lowry v. Pinson (2 Bailey’s Law, 324), Shelley v. Boothe (73 Mo. 74).

From this review of the authorities it seems clear that,- where there is an actual intent to defraud, no form in which the transaction is put can shield the property so transferred from the claims of creditors, even though a full and adequate consideration be received for the same.

The order of the General Term should, therefore, be reversed and the judgment entered on the report,of the referee affirmed.

All concur.

Order reversed and judgment affirmed.


text:
    Henry Hildreth, Respondent, v. The City of Troy, Appellant.
    The rejection of a competent juror is ground of error, although the jurors who actually try the case are competent, it is the right of a party to require that the range of selection shall not be limited by excluding without cause a competent j uror from the panel.
    By defendant’s charter (§ 16, chap. 1, Laws of 1816), it is declared that in an action to which the city is a party “ no person shall be deemed an incompetent juror by reason of his being an inhabitant * * * of the said city.” In an action against the city, upon impaneling the jury the plaintiff “ excused” eight jurors, drawn, from the regular panel, who were inhabitants of the city, on the ground that they were interested. Defendant’s attorney objected. The court overruled the objection, holding that all such jurors were disqualified, to which ruling said attorney excepted. Afterward six other jurors were rejected on the same ground. Be Id, that the ruling was error which was available to defendant on appeal (Code of Civ. Pro.,' § 1180); that the proceeding on the part of the plaintiff was in substance a challenge, and that the ruling in substance gave plaintiff fourteen peremptory challenges instead of the two to which he was entitled.

      Freery v. People (2 Keyes, 425), Ferris v. People (85 ÍT. T, 125), People v Hansom (7 Wend. 417), distinguished.
    (Argued December 15, 1885;
    decided January 19, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made November 20, 1888, which affirmed a judgment in favor of plaintiff entered .upon a verdict, and affirmed an order denying a motion for a new trial.
    The nature of the action and the material facts are stated in the opinion.

      William J. Roche for appellant.
    The trial judge erred in excluding, from the jurors drawn for said trial, jurors who at the time resided in Troy. (Laws 1816, chap. 1, § 16; Laws 1870, chap. 598; Laws 1873, chap. 427; Code of Civ. Pro., § 1180 ; State of Missouri v. Rome, 54 Mo. 453.) The courts of the United States are bound to take judicial notice of the laws of the several States in the same manner as of the laws of the United States. (Evans v. C. & P. R. R. Co., 5 Phila. 512; lyell v. Lapeer Co., 6 McLean, 446; Fauntleroy v. Hannibal, 1 Dill. [Mo.] 118; People v. Breese, 7 Cow. 429; Chapman v. Wilber, 6 Hill, 475; People v. Herkimer, 4 Cow. 345.)

      James Lansing for respondent.
    It was not error to exclude the jurors drawn from the city of Troy. (12 Coke, 114; Coke on Litt. 157 a and b; Diveny v. City of Elmira, 51 N. Y. 506; Laws of 1816, chap. 1, § 16 ; Code, § 1166; Potter v. Ellice, 48 N. Y. 321.) If, after the rejection of a juror against objection, another is found with whom both parties declare themselves satisfied, error in the rejection is not available. (Grand Rapids, etc., v. Jarvis, 30 Mich. 308.) After a trial by an impartial jury, the fact that others called as jurors, who were equally competent but not more so, were excluded from the jury, is not ground for a new trial. (Tweed v. Davis, 1 Hun, 252; People v. Jewett, 3 Wend. 314; Muller v. Decker, 19 Weekly Dig. 427.)
   Andrews, J.

This action was brought to recover for injuries sustained by the plaintiff from the negligence of the defendant in failing to keep Congress street in the city of Troy in safe condition for travel, and resulted in a verdict for the plaintiff for $1,800. It appears that upon the impaneling of the jury, the plaintiff “ excused ” eight jurors drawn from the regular panel, residents of the city of Troy, upon the ground that they were interested in the result of the action, to which proceeding the city attorney objected on the ground that residents and tax payers of the city are not disqualified as jurors in city cases, if otherwise competent. The court overruled the objection and held that all such jurors were disqualified, to which ruling the attorney for the defendant excepted. Thereafter four additional jurors, residents of the city, were drawn and the same proceeding was had, and they were likewise excluded. The jury box was filled from other names in the panel, and none of the jurors who sat were objected to or challenged. It is not claimed that the jurors excluded by the ruling of the court were interested except as tax payers of the city. By the rule of the common law the inhabitants of a municipality, or the members of any body politic, were incompetent to sit as jurors in a case in which the corporation was a party. They were deemed to be interested, and such interest was a good cause of principal challenge. (Coke upon Littleton, 157, a, b.) The common law has been modified in this State by general statutes making the inhabitants of a town or county competent jurors in suits brought by or against such town or county (1 R. S. 357, § 4; id. 384, § 4; 2 id. 420, § 58), and as to the inhabitants of cities, by special provision, inserted in nearly all cases, in the charters of incorporation. The charter of Troy, enacted in 1816, provides: “ That upon the trial of any issue, or upon the taking or making of any inquisition, or upon the judicial investigation of any facts whatever, to which issue, inquest or investigation the mayor, recorder, aldermen and commonalty of said city are a party, or in which they are interested, no person shall be deemed an incompetent juror by reason of his being an inhabitant, freeholder or freeman of the said city.” (Chap. 1, § 16, Laws of 1816.) This provision has'never been repealed or amended, and was in force at the time, of the trial of this action. The ruling of the learned trial judge excluding from the jury the residents of Troy on the ground of interest, was in contravention of this explicit provision of law and was plainly erroneous.

The question presented is, whether the error of the judge is ground for the reversal of the judgment. The proceeding on the part of the plaintiff was in substance a challenge. It was so treated by the attorney for the city and by the court. The court ruled that residents of the city were legally disqualified as jurors, and excluded them on that ground alone. The right of a party to except to a determination of the court upon a challenge to a juror, and to have such determination reviewed on appeal is expressly given by the Code (§ 1180). This section recognizes the determination of a challenge as involving a legal right, which may be reviewed and, if erroneous, set aside. The General Term disposed of the question on the ground that the rejection of a competent juror was not ground of error, where the jurors who actually try the case are competent. We cannot assent to this view. In our judgment the adoption of this principle would seriously imperil the system of jury trial and lead to practices which the statutes regulating the drawing of jurors were designed to prevent. The main purpose of the statutes for the drawing and selection of trial jurors is the securing of a fair and impartial jury. To this end, provisions are made, which, if followed, prevent the selection of a jury either by the court, or the officers of the court, or by either of the parties to the action, and exclude from the jury box all jurors not indifferent," or who for any reason are disqualified to act as jurors; while at the same time they secure to the parties the advantage of a jury constituted by lot from all the qualified jurors undrawn on the panel. By the Stat. 3 Geo. II, § 11, “for the better regulation of juries,” it is provided that the first twelve persons drawn, and appearing, and approved as indifferent, should be the jury to try the cause. This provision was incorporated into the Revised Laws of 1813 (1 R. L. 331, § 20), and into the Revised Statutes (2 R. S. 420, § 61), and was re-enacted in the Code of Civil Procedure (§ 1166), without any substantial change. The section of the Code is in this language: “ The first twelve persons who appear as their names are drawn, and called, and approved as indifferent between the parties, and not discharged or excused, must be sworn ; and constitute the jury to try the case.” Sections 1032 and 1033 enumerate causes for which jurors may be discharged or excused. The language of section 1166 is mandatory. Blackstone refers with just admiration to the safeguards thrown around the selection of a jury by the English statutes, and observes that they are admirably designed for the avoiding of frauds and secret management, by- electing the twelve jurors out of the whole of the panel by lot. (2 Bl. Com. 365.) It is said that no injury resulted to the defendant from the erroneous exclusion of the city jurors, since a competent jury actually tried the case. The court cannot say that the trial would have resulted differently if the city jurors had not been excluded. On the other hand the contrary cannot be affirmed. It is certain that except for the erroneous ruling the j ury would have been differently constituted. Jurors differ in intelligence, judgment, and fitness to act as jurors. It is we think the legal right of a party to have the jury selected from the competent names in the jury box, and that the range of selection shall not be limited by excluding without cause competent jurors from the panel. It cannot be doubted that if an incompetent juror had been admitted against the objection of the defendant, the judgment would be set aside, and yet in many cases it would be impossible to show any actual injury. A person not a resident of the county, or over sixty years of age, or without the requisite property qualification, is not a competent juror (Code, § 1027), but it would we conceive be no answer to an exception taken to his admission, that no actual injury was shown to have resulted. The violation of the legal right of the party to have the case tried by competent jurors, would be conclusive. The error in this case was in improperly rejecting competent jurors. The court added a disqualification, not. only not found in the statute, but which the statute declares shall not constitute a disqualification. The law allows in a civil case two peremptory challenges to each party. The action of the court was equivalent to allowing the plaintiff fourteen peremptory challenges, because it excluded from the jury without adequate cause upon the motion of plaintiff, fourteen jurors presumably competent. If the court had in form allowed the plaintiff more than two peremptory challenges, would it be an answer to an exception, that nevertheless there was no legal injury, since a competent jury was subsequently impaneled? We think the error of the court in excluding the city jurors^ is available to the defendant on this appeal. The learned trial judge doubtless decided the point under the misapprehension that the case was governed by the common law, without having in view the statute of 1816. But the charter is declared on its face to be a public act, and the j udge is presumed to have had notice of its provisions. It does not appear whether his attention was specially called to the provision in section 16, but the counsel for the plaintiff took the objection to the jurors specifically on the ground that as residents of Troy they were interested, and so disqualified, and the defendant’s counsel insisted that they were not disqualified for that reason, and the court ruled the point for the plaintiff. We think he must bear the consequences of the error, and that he cannot escape by charging the defendant with a violation of duty in omitting to call the attention of the court to the provision of the statute of 1816, which, so far as appears, may not have been known to him at the time. The judgment should be reversed. The statute makes elaborate provision for securing an impartial jury. It provides that the first twelve competent jurors drawn, who are •indifferent and not discharged or excused, shall constitute the jury. The law prescribes the qualifications of jurors. The court cannot add to, or detract from them. It cannot itself select the jury, directly or indirectly. It cannot in its discretion, or capriciously, set aside jurors as incompetent, whom the law declares are competent, and thus limit the selection of the jury to jurors whose names may be left. If this is done, a legal right is violated, for which an appellate court will give redress. The ]ury system, to be successfully administered, requires not only absolute impartiality in fact, in the drawing of jurors, but such an adherence to forms and methods of procednre as will secure public confidence and prevent any suspicion of improper or unfair dealing.

We have not lost sight of the cases holding that a mere irregularity on the part of ministerial officers in the selection and drawing of jurors is not ground of error, unless it appears that it operated to the prejudice of the party. (Friery v. People, 2 Keyes, 424, 425; Ferris v. People, 35 N. Y. 125; People v. Ransom, 7 Wend. 417.) But the erroneous exclusion by a judge on the trial from a particular panel; of a class of persons regularly drawn, on the ground of incompetency, stands, we think, upon a different principle and is governed by different considerations.

The judgment should be reversed.

All concur.

Judgment reversed.


author: Earl, J.

text:
    Francis Bruecher, Respondent, v. The Village of Port Chester, Appellant.
    Where an assessment for a local improvment is valid upon its face, but is in fact void because the assessors had no jurisdiction to impose it, an action may be maintained to recover back money involuntarily paid in satisfaction thereof without first having the assessment set aside or vacated.
    Payment to an officer who has a valid warrant for the collection of snch an assessment and who threatens to execute the same is , not a voluntary payment.
    lío demand for a return of the money so paid is necessary before the commencement of an action to recover the same.
    (Argued December 15, 1885;
    decided January 19, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made the first Monday of March, 1883, which reversed a judgment in favor of defendant, entered upon an order sustaining a demurrer to plaintiff’s complaint, and which overruled the demurrer. (Reported below, 31 Hun, 550.)
    The substance of the complaint is set forth in the opinion.

      David B. Ogden and Charles W. Sloame for appellant.
    The payment by plaintiff in 1875, being a voluntary payment of an assessment void on its face, the action to recover the amount paid cannot be maintained. (Merritt v. Village, 71 N. Y. 309; N. Y. & H. R. R. Co. v. Marsh, 12 id. 308, 312; Fleetwood v. City, 2 Sandf. 475, 482 ; Peyser v. Mayor, etc., 70 N. Y. 497, 502; Bank of Commonwealth v. Mayor, etc., 43 id. 184, 188, 189; Horn v. Town of New Lots, 83 id. 100; Newman v. Supervisors, 45 id. 676; Nat'l City Bank v. City, 53 id. 49; Crooke v. Andrews, 40 id. 547, 549; Stuart v. Palmer, 74 id. 183; Whitney v. Thomas, 23 id. 281; Chase v. Chase, 95 id. 373; Lott v. Swezey, 29 Barb. 87-92; Rumsey v. City, 97 N. Y. 114, 119; Moore v. City, 98 id. 396; Strasburgh v. Mayor, etc., 87 id. 452.) Plaintiff paid the assessment in order to complete the conveyance although he knew of its invalidity and paid it under protest; such a payment made for such a purpose is voluntary and cannot be recovered back. (N. Y. & H. R. R. Co. v. Marsh, 12 N. Y. 308; B. & S. Glass Co. v. City, 4 Metc. 187; Pumpelly v. Phelps, 40 N. Y. 59; Mack v. Patchen, 42 id. 167; Cockroft v. N. Y. & H. R. R. Co., 69 id. 201.) The void assessment did not constitute a lien on plaintiff’s property within the meaning of his covenant against incumbrance. (Chase v. Chase, 95 N. Y. 374; In re Deering, 85 id. 1; In re Delancey, 52 id. 80; Purcell v. Mayor, etc., 85 id. 330.) The payment was not made under duress. (Shaw v. Woodcock, 7 B. & C. 73; Harmony v. Bingham, 12 N. Y. 99; Astley v. Reynolds, 2 Strange, 915; Smith v. Bromley, 2 Doug. 696; Hall v. Schultz, 4 Johns. 240; Chase v. Dwinal, 7 Greenl. 134.) The complaint is defective in that it does not allege a demand on and refusal by defendant for the repayment of the money paid. (Abbott v. Draper, 4 Den. 51; Mayor, etc., v. Erben, 38 N. Y. 305; Stevens v. Hyde, 32 Barb. 171; Scholey v. Halsey, 72 N. Y. 578-582.) The treasurer is not authorized to receive payments under any conditions whatsoever, and any such receipt was unavailing as regards defendant’s rights. (Commercial Bk. of Rochester v. City, 42 Barb. 488.) A protest will not change a voluntary into an involuntary payment. The payment nullifies the protest. (Fleetwood v. City, 2 Sandf. 475, 482; Trinity Church v. Mayor, etc., 10 How. 138.)

      I. T. Williams for respondent.
    It was not necessary to have the assessment set aside or vacated, it being illegal, void and of no effect by reason of a failure to comply with the statute. (People v. Connor, 46 Barb. 333; State v. Mayor, etc., 38 N. J. L. 85; State v. City of Perth Amboy, id. 425; Wilkes v. Mayor, etc., 79 N. Y. 621; Stewart v. Palmer, 74 id. 183; Swift v. City of Poughkeepsie, 37 id. 511; Bank of Commonwealth v. Mayor, etc., 43 id. 184; 71 id. 312; Horn v. Town of New Lots, 83 id. 100.) To constitute a voluntary payment within the rule that a voluntary payment cannot be recovered back, it must be made with full knowledge of all the material facts. (Duke v. Artisans’ Bank, 3 Abb. Ct. App. Dec. 10.) Payment to prevent a sale has always been held to be an involuntary payment, within the rule of law under view. (Harmony v. Brigham, 12 N. Y. 99-116; 2 Strange, 915; 3 Doug. 695; 4 Johns. 240; 1 Esp. 84; 2 id. 722; 7 Barn. & Cres. 73; 3 Mees. & Wels. 644; 7 Greenl. 134; 2 Sandf. 475; 9 Johns. 201, 370; 7 Mass. 14; Bates v. N. Y. Ins. Co., 3 Johns. Cas. 238; Am. Ex. Fire Ins. Co. v. Button, 8 Bosw. 148; 3 How. Pr. 102; 18 Wend. 586; 9 Johns. 301, 370; 2 E. D. Smith, 224; 4 Cow. 454.) The rule that a voluntary payment cannot be recovered back is intended solely for the protection of the party receiving the money, and it is competent for him to waive the benefit of the rule. (Com. Bank of Rochester v. City of Rochester, 22 Barb. 488.)
   Earl, J.

The plaintiff in his complaint alleged that in 1875 he owned certain lands situated in the village of "Port Chester, and that they were assessed for certain local improvements; that the commissioners of estimate and assessment appointed under the defendant’s charter to apportion and assess the expenses of the improvement upon the adjacent premises didmot take the oath required by the charter to be taken by them, nor did they, after making their estimate and assessment, publish a notice of the time and place when and where interested parties could be heard in manner and form as required by the charter, whereby, and by means of such omissions, the report of the commissioners and the confirmation thereof, and the assessment upon his lands were illegal and wholly void at law; and he further alleged that the defendant was estopped from denying that the assessment was totally void in law, for the reason that, since the payment of the assessment, the defendant was impleaded by one Sarah Merritt and others in an action presenting the same identical issues and question presented in this action, wherein it was adjudged that the assessment was utterly void for the reasons and upon the grounds above stated. (Merritt v. The Village of Port Chester, 71 N. Y. 309.) And he further alleged that on the 27th day of February, 1875, a warrant was issued for the collection of the assessment upon his premises, and the°defendant by virtue thereof threatened to sell and was about to sell his premises for the payment of the assessment, and that he, having before that time sold his premises and being under contract to convey the same free from all incumbrances, was unable to do so by reason of the assessment, which was an apparent lien and cloud upon the premises, and thus he was compelled, in order to complete the conveyance of his premises, to pay and did pay to the treasurer of the village and into the treasury thereof the sum of $489.30 under protest, nevertheless, and the same was received by the treasurer and into the village treasury, as so paid under protest, to-wit: that the said assessment was utterly void and of no effect, and that all the rights of the plaintiff should be and remain reserved to him, and in no way waived, foregone, or pretermitted by such payment; and he demanded judgment for the sum so paid and interest. To the complaint the defendant demurred on the ground that it appeared upon the face of the complaint that it did not state facts sufficient to constitute a cause of action.

It does not appear from any thing alleged in the complant that this assessment was invalid upon its face, or that its invalidity would appear in any proceeding taken to enforce it. The contrary must have been determined in the case of Merritt v. Villlage of Port Chester; but it is distinctly alleged in the complaint, and was decided in this court in that case, that the assessment was in fact utterly illegal and void. Hence it was not necessary for the plaintiff to institute any action or proceeding to vacate the assessment and thus have it annulled and set aside before commencing this action. If the assessment had been merely irregular, informal or unjust, the assessors having jurisdiction to impose the same, then, before an action to recover back the money paid in satisfaction thereof could be maintained, it would have been necessary to have the same vacated or annulled in some way and thus removed as an obstacle out of the way. But where an assessment is in fact utterly void on the ground that the assessors had no jurisdiction to impose the same, then an action may be maintained to recover back money paid in satisfaction thereof without first having the assessment set aside or vacated. And so it has been held. (Newman v. Supervisors of Livingston Co., 45 N. Y. 676; Strusburgh v. Mayor, etc., 87 id. 452; Horn v. New Lots, 83 id. 100.)

These -rules in reference to money paid upon assessments were established from the analogy which was supposed to exist between completed assessments and judgments. Money paid upon a judgment which is merely irregular or erroneous cannot be recovered back while the judgment remains in force. But money involuntarily paid upon a judgment which is utterly void can be recovered back without first causing the judgment to be reversed or vacated.

This was not a voluntary payment by the plaintiff within the rules of law applicable to such payments. We must assume that the assessment was valid upon its face, and that a valid warrant was out for its collection; and it has been repeatedly held that payment to an officer who has a valid process which he can enforce and which he threatens to execute is not a voluntary payment. (Peyser v. Mayor, etc., 70 N. Y. 497.) And the money having been taken from the plaintiff wrongfully and the defendant having no right to retain the same, no demand prior to the commencement of the action was necessary.

We are, therefore, of the opinion that the judgment should he affirmed, with costs.

All concur.

Judgment affirmed.


author: Finch, J.

text:
    The People, ex rel. Harvey M. Munsell, Respondent, v. The Court of Oyer and Terminer of the County of New York, Appellant.
    An act which is not a civil or private contempt, and is not enumerated among criminal contempts (Code of Civ. Pro., §8), is not a contempt, although it may be punishable as a misdemeanor.
    During the progress of the trial of an indictment for assault with intent to kill, one of the jurors went to the scene of the affray for the purpose of acquainting himself with the locality. ' For this act he was adjudged by the court guilty of contempt, and was committed therefor. Held error.
    The distinction between private or civil and public or criminal contempts pointed out.
    (Argued December 16, 1885;
    decided January 19, 1886.)
    Appeal from order of the Ceneral Term of the Supreme Court, in the first judicial department, made May 29, 1885, which reversed on certiorari an order of the Court of Oyer and Terminer of the county of Hew York, sentencing the relator to imprisonment for thirty days and to pay a fine of $250. (Reported below, 36 Hun, 277.)
    ’ The relator was a juror on the trial of an indictment for assault with intent to kill. During the progress of the trial he went alone to the scene of the affray for the purpose of acquainting himself with the locality. After the trial was closed proceedings were instituted against the relator by attachment to punish him for contempt of court, and in such proceedings the order in question was made.

      De lancey Nicoll for appellant.
    The relator’s misconduct tended to impair, impede and prejudice the rights or remedies of the people, one of the parties to the action ; the Court of Oyer and Terminer had jurisdiction and power to,punish him therefor as for a contempt of court. (Code, § 114, subd. 8; Hull v. L'Eplattimer, 49 How. Pr. 500; 5 Daly, 534; Deces v. Merle, 2 Paige, 495; Riggs v. Whitney, 15 Abb. 388; 6 Wait’s Pr. 134-136; Middlebrook v. State, 43 Conn. 267; People v. Wilson, 64 Ill. 195; Whitton v. State, 36 Ind. 212; Arnold v. Comm., 44 Am. Rep. 480; Tyler v. Hammersley, 44 Conn. 393; State v. Morrill, 16 Ark. 384.) The misconduct of jurors has been repeatedly treated as a contempt and punished as such. (State v. Helverston, R. M. Charlt. [Ga.] 48; Burrill v. Phillips, 1 Gall. [U. S.] 360; Alexander v. Dunn, 5 Ind. 122; Milo v. Gardner, 41 Me. 549; Oram v. Bishop, 7 Halst. [N. J. L.] 153; State v. Dotty, 3 Vroom [N. J.], 403; United States v. Devaughan, 3 Cranch, 84; Ex parte McAnnlly, 7 U. P. Charlt. [Ga.] 310; Offutt v. Parrott, 1 Cranch, 154.) The common-law powers of the criminal courts to punish quasi civil contempt, that is, all contempts which tend to prejudice the people or the prisoner, and which are not strictly criminal, have not. been taken away by legislative enactment, but have been expressly and in direct terms retained and conferred. (2 R. S. [Edm. ed.] 759, § 14; Penal Code, § 724; Code of Crim. Pro., §§ 243, 350, 619, 635.) The cases fully recognize both the inherent common-law power and the express statutory power quoted from the Revised Statutes. (People, ex rel. v. Fancher, 2 Hun, 226, 231-233; In re Hahn, 87 N. Y. 521.) A defendant is entitled to a new trial where a juror has received any evidence out of court other than that resulting from a view as provided in section 411 of the Code. (Code of Civ. Pro., § 465, subd. 2.) The Court of Oyer and Terminer erred only in the supposition that its power was limited to an imprisonment of thirty days. (Code of Civ. Pro., § 2285.)

      John Vincent and Ira Shafer for respondent.
    It was error to adjudge the relator guilty of contempt. (Code of Civ. Pro., §§ 8, 10-15, 192, 3343; Penal Code, §§ 143, 73.) The Oyer and Terminer and not the people is affected by the relator’s discharge. (People, ex rel. v. Gilmore, 88 N. Y. 626.)
   Finch, J.

The occasion and result of proceedings for contempt furnish a clear and well-defined line of division separating them into two classes which have become somewhat mingled and confused by the use of a fixed but ambiguous nomenclature. (In re Watson, 3 Lans. 408.) There may prove to be rare and exceptional cases which do not easily fall within either class, or some which so commingle the characteristics of both as to make their location doubtful and difficult; but in the main the division is exhaustive and clear. In one class are grouped cases whose occasion is an injury or wrong done to a party who is a suitor before the court, and has established a claim upon its protection; and which result in a money indemnity to the litigant, or a compulsory act or omission enforced for his benefit. In these cases the authority of the court is indeed vindicated, but it is, after a manner, lent to the suitor for his safety, and vindicated for his sole benefit. The authority is exerted in his behalf as1 a private individual, and the fine imposed is measured by his loss and goes to him as indemnity; and imprisonment, if ordered, is awarded, not as a punishment, but as a means to an end, and that end the benefit of the suitor in some act or omission compelled which are essential to his particular rights of person or of property. This clearly appears from the mode of enforcing the suitor’s remedy prescribed by the statute. (Code of Civ. Pro., §§ 2284, 2285.) A fine may be imposed to indemnify his actual loss. Where such is not shown the fine must not exceed his costs and expenses and $250 in addition thereto, and in both cases be paid over to the suitor. The imprisonment, where the act or duty can yet be performed, must end with the performance of the act and payment of the fine; but if the act or duty cannot be performed, then the imprisonment must not exceed six months and until the fine be paid. In this last provision there is a trace of the element of punishment, but it is for the violation of the private right of the party and to check similar violations in the future,, and has no respect to public offenses or the vindication of public wrongs. The people may be such a party, but only when, like individuals, they are seeking a civil right or remedy which the misconduct complained of tends to defeat or impede; in other words, when they stand in the attitude of private suitors, seeking to enforce their private rights. If in this class of cases there exist traces of a vindication of public authority they are but faint, and utterly lost in the characteristic which is strongly predominant of protection to private rights imperiled or indemnity for such rights defeated.

These cases have been usually described as proceedings for the enforcement of civil remedies, and more briefly as civil contempts; and because the great volume of instances occur in the progress of civil actions; but they may also occur in criminal actions or proceedings, as we shall presently see, and constitute then what I imagine the learned counsel for the appellant had in his mind when he spoke of “ quasi civil con-tempts.” If we describe this first class of contempts as private contempts because their occasion and result is, primarily and in the main, the vindication of private rights; we shall avoid confusion or misapprehension.

The second class of contempts consists of those whose cause and result are a violation of the rights of the public as represented by their constituted legal tribunals, and a punishment for the wrong in the interest of public justice, and not in the interest of an individual litigant. In these cases if a fine is imposed its maximum is limited by a fixed general law, and not at all by the needs of individuals; and its proceeds when collected go into the public treasury and not into the purse of an individual suitor. The fine is punishment rather than indemnity, and if imprisonment is added, it is in the interest of public justice and purely as a penalty, and not at all as a means of securing indemnity to an individual. Hecessarily these con-tempts in their origin and punishment partake of. the nature of ci'imes, which are violations of the public law, and end in the vindication of public justice; and hence are -named criminal * contempts. As described in the statute, an element of willfulness, or of evil intention enters into and characterizes them. They are a disturbance of the court which interferes with its performance of duty as a judicial tribunal; willful disobedience to its lawful mandate; resistance to such mandate willfully offered; contumacious and unlawful refusal to be sworn as a witness, or to answer a proper question; and publication of a false and grossly inaccurate report of its proceedings. These cases and their punishment are placed under the head of general power's of the courts and their attributes; ” and they very evidently relate to public offenses tending to cast discredit upon the administration of public justice, and having no reference to the particular rights of suitors. But here again we find that they occur as well in civil as in criminal actions, and so, for convenience, we may speak of them in view of the present classification, as public contempts, although the established legal nomenclature must remain unchanged.

. We have then two distinct classes, private contempts and public contempts, with which we are to deal for the purposes of this case. Both were known to and recognized by the common law, and the courts were held to possess an inherent power of punishing by process of contempt any disregard of their authority, both for the benefit of their suitors, and for the protection of their own order and dignity. Necessarily the common-law power was very broad and vested large discretion in the courts. These became in some instances both accuser and judge; and this was especially so where the contempt was of a public nature, and no private person stood as complainant and sufferer. When the Revised Statutes were enacted an evident effort was made to codify the law of contempt and bring it within definite and fixed rules (1 R. S. 534, § 1; id. 278, § 10) ; and the effort plainly recognized the difference between the two classes. The first, or private contempts, were described as those by which the rights or remedies of a party in a cause or matter depending in such court may be defeated, impaired, impeded or prejudiced in the following cases.” After a very careful and specific enumeration it was- still recognized that in the multitude of private rights other and unnamed cases might occur, and to meet that emergency subdivision 8 was added which retained the power in “all other cases where attachments and proceedings as for contempts have been usually adopted and practiced in courts of record to enforce the civil remedies of any party to a suit in such court or to protect the rights of any such party.” By this clause the common-law right as to private contempts was preserved outside of and beyond the statute enumeration, and this was deemed safe and prudent because in cases affecting only private rights and wrongs done merely to the suitor the courts would be under little or no temptation to unduly strain or exercise their power. But the situation was entirely different as to public contempts. As to these the court contemned was the court which adjudged and punished, and that summarily and without the intervention of a' jury. Here precise limitations were needed, and any shred or remnant of undefined common-law power was deemed dangerous. And so the legislature decreed that “ every court of record shall have power to punish as for a criminal contempt persons guilty of either of the following acts cmd no others.” Observe the difference in the two acts founded upon the inherent difference between the two classes. The private or civil contempt might go beyond the statutory enumeration and include also what was usual or permissible at common law. But the public or criminal contempt was precisely defined and barred in by the statute enumeration. The phrase “and no others ” implies that there were or might be other and non-enumerated offenses, answering the description or characteristics of public contempts, which, but for the statute, might be so deemed and punished; and all these it was affirmatively intended to shut out, at least until subsequent legislation should let them in. So that, for the criminal contempt, we may look only to the statute, while for the private or civil contempt we may resort, if need be, to the common law. These two statutes have been substantially copied into our Oodes (Code of Civ. Pro., §§ 8, 14; Penal Code, § 143). Outside of the criminal contempts enumerated there were very many offenses of that general character which could not be so punished, but were reached by making them misdemeanors and giving the culprit a trial before a jury; and any omitted case not covered by one or the other of these remedies may be easily met by further legislation. Other provisions of the Codes, to which we have been referred, may have been enacted without keeping this classification in view, but, if some confuse, none of them destroy it. By section 243 of the Code of Criminal Procedure a grand juror may be challenged as a minor, an alien or insane, or as prejudiced and not impartial toward the party challenging, and by section 243 his attempt to serve is punishable as a contempt. It is not called a criminal or public contempt, and is not made such, but in its nature was evidently deemed an act which rather violated the private or particular right of the party challenging, and so belonged as it was left by the Code in the class of private contempts occurring in a criminal action. By section 344 and those which follow a prisoner may apply to remove his case from a court in which the indictment is pending, and for that purpose may apply to a judge for a stay, but if the application ■ is denied, a further appeal to another judge is forbidden and made punishable as a contempt. Here again the prohibited act respects primarily the private right of the accused, and is classed as a simple contempt and not denominated criminal. But since it does also respect public justice, and there is no suitor to be indemnified, it hardly belongs where it is placed, and some consciousness of this is evidenced by the further provision of the section that it shall also be punished as a misdemeanor. Section 619 makes disobedience to a subpoena, or refusal to be sworn or testify, a criminal contempt, and section 635 extends that to a conditional examination.

It seems to me thus entirely clear that an act which is not a private contempt, and is not enumerated among criminal con-tempts, is not a contempt at all, although it may be and very often is punishable as a misdemeanor. There is no difficulty about the statute (2 R. S. [Edm. ed.] 759, § 14) to which the learned district attorney refers us, as making all contempts in civil cases applicable to criminal trials. The private contempts are so applicable when they in fact occur. The statute in question accomplished nothing except to make the form and manner of proceeding adopted to punish contempts in civil cases, apply to contempts on criminal trials, so far as in their nature applicable. It did not change the definition of con-tempts or destroy or confuse the statute classification. (People v. Restell, 3 Hill, 289, 295.) The extended application of the statute was intimated in People v. HacMey (24 N. Y. 74, 78), but the essential characteristics of contempts were not confused or altered.

There remains to us the inquiry whether the act of the juror in this case was a contempt at all. It is conceded that it was not a criminal contempt, because not one of those enumerated in the statute. It certainly was not a private or civil contempt, for it invaded no right of an individual suitor before the court, and involved no question or duty of indemnity to an individual litigant. On a criminal trial a verdict of acquittal was rendered which shocked the sense of justice and aroused the indignation of the learned trial judge. It then appeared that Munsell, one of the jurymen, had gone to the scene of the affray for the purpose of acquainting himself with the locality. It is not alleged that he obtained any information. For that act he was committed for a contempt. On the face of the order it is recited that he willfully disobeyed the command of the court. If that was true there was a criminal contempt; but it is here conceded not to be true, and that no order of the court was disobeyed. Certainly, this was not a private or civil contempt. It is said the people were a party and their rights were invaded, and so were to be protected. But the people were the public, and their rights were the rights of public justice, and the offense, if one at all, was a public offense. The phrase “to protect-the rights of any such party” means a party entitled to “ civil remedies ” in his action, and wielding the power of the court for his private and personal benefit. It is true that in every criminal action the people as parties plaintiff have rights to be cared for in its progress. But these rights are generally of a public character and respect the protection'of society. As in private contempts there are traces of a vindication of public authority, so in public contempts there are indications of private rights, but, as in the other instance, lost and overwhelmed in the predominating characteristics of the class. Upon a criminal trial there is often behind the people an individual complainant who has suffered in his rights of person or of property, and more or less interested in the prosecution; but he is not permitted to be a party ; he must go elsewhere to redress his wrong; and it is not his right which is being enforced, but that of public justice with a- view to the public safety. And the logical result of this must be that on a criminal trial, a disrespect to, or defiance of the court, which does not injure the private right of the accused, and calls for no vindication on his behalf, is either a criminal contempt, or a misdemeanor, or both, but cannot be" a private or civil contempt.

The distinction between the two classes of contempts was observed very soon after the statutes were passed.

In a civil action decided in 1831, which the appellant cites, a party broke open books sealed up in the master’s office, which was a contempt at common law. The chancellor said: “Upon my first examination of the Revised Statutes I was inclined to think that the section which defines criminal contempts had deprived the court of the power of punishing the improper conduct; ” and then he holds that it was a civil or private contempt within subdivisions 2 and 8 because it was a case in which the rights of the adverse party were materially involved.

We need not determine whether this juror was guilty of any offense whatever, since if we should assume that he was, for the sake of the argument, and that what he did was unlawful and prohibited, his act would have been a criminal contempt but for the statute bar. It would have invaded no private right; no right of a mere suitor seeking a personal remedy for a wrong done him; but would have struck at public justice and the vigor and honesty of its administration; 'have been a disrespect to the court and a defiance of the public law, causing to miscarry a public prosecution. It is very certain that the learned trial court so understood and so dealt with it. The punishment adjudged was precisely the maximum of that fixed for criminal contempts both as to the fine and the imprisonment. There was no trace of indemnity to the people as plaintiffs. Their costs and expenses were not ascertained or considered, of sought to be reimbursed. Hothing was meant but punishment for a public offense to be dealt with as such. The court said the extreme punishment permissible was inadequate, but should be imposed. But thirty "days in jail and $250 fine was not the limit if this was a civil or private'contempt. In that case both might have been greater. And in imposing the penalty upon the juror the court described it as “punishment for his misconduct.” If there was misconduct the act would have been a criminal contempt but for the prohibition lodged in the words “ no others.” Those words are meaningless on the theory of the prosecution. For if the people are to be deemed like private suitors, and whenever their rights are infringed there may be a quasi civil contempt, and that punished as was this juror, precisely as if guilty of a criminal contempt, the whole statute and its prohibition is a complete absurdity. The roads are open on both its flanks.

We cannot so construe it. We think the General Term were right in saying that the juror could not be punished for a contempt.

The order of the General Term should be affirmed.

All concur.

Order affirmed.


author: Eabl, J.

text:
    Elizabeth Welsh, Appellant, v. John T. Wilson, Respondent.
    One doing business on a street in a populous city has the right to temporarily obstruct the sidewalk in front of his place of business, for the purpose of loading merchandise; the right, however, is to be exercised in a reasonable manner so as not unnecessarily to incumber the sidewalk ; when thus reasonably exercising such right, the occupant of the premises is not required to furnish to those passing upon the sidewalk a safe passage around the obstruction.
    Defendant, for the purpose of removing certain cases of merchandise from his store in the city of New York, placed a pair of skids from a truck across the sidewalk to the steps of the store ; after they had been there about three minutes plaintiff came along the side walk and seeing the skids attempted to pass around them by the steps, and in so doing slipped upon the steps and was injured. In an action, to recover damages, Mid, that defendant owed no duty to the plaintiff to see that the steps were in an absolutely safe condition for travel; and that she was not entitled to recover.
    (Argued December 16, 1885;
    decided January 19, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entering upon an order made May 8, 1882, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial.
    This action was brought to recover damages for personal injuries alleged to have been caused by defendant’s negligence.

      William G. Cooke for appellant.
    Defendant owed plaintiff a duty to see that the door-step was safe. She did not go there as his licensee, or by any privilege which was subject to his control or liable to revocation by him, but in the exercise of that right which every traveler has, to turn aside and go extra viam to avoid an obstruction in the highway. (Taylor v. Whitehead, Doug. 749; Comyn's Dig., tit. Chim. D. 6; Dovaston v. Payne, 3 Sm. L. C. [6th Am. ed.] 217; Holmes v. Seeley, 19 Wend. 510; Williams v. Safford, 7 Barb. 311; Newkirk v. Sabler, 9 id. 655; Shea v. Sixth Ave. R. R. Co., 62 N. Y. 180; Nicholson v Erie Ry. Co., 41 id. 525; Nolan v. King, 97 id. 565, 572.) The question whether or not the skids were a nuisance ought to have been submitted to the jury. (Manger v. Harrison, 14 Weekly Dig. 201.) Plaintiff used all and more than the degree of precaution required. (Nolan v. King, 97 N. Y. 565.)

      John Sedgwick Bangs for respondent.
    The plaintiff did not unlawfully obstruct the street. (People v. Cunningham, 1 Denio, 530.) An obstruction of the highway is lawful when it becomes reasonably necessary for the transaction of business. (Commonwealth v. Passmore, 1 Serg. & Rawle, 219; People v. Cunningham, 1 Denio, 530.) If the obstructions are temporary and reasonable they will not be declared illegal merely because the public may not for the time have the full use of the highway. (People v. Horton, 64 N. Y. 610, 616; Callanam v. Gilman, N. Y. Supr. Ct., Aug. 1, 1883; 24 Daily Reg., No. 27; 49 Sup. Ct. Repr. 542.) Hone of the damages claimed by the plaintiff were directly attributable to the skids or to the act of the defendant in permitting sldds to be in front of his premises, and under such circumstances the only damages to which plaintiff could in any event have been entitled were nominal damages for the delay caused by the temporary obstruction. (Ins. Co. v. Tweed, 7 Wall. 52; 1 Suth. on Dam. 31-38; Toker v. Damon, 17 Pick. 284.) It was the duty of the plaintiff to use all reasonable exertion to render the injury as light as possible. (Hamilton v. McPherson, 28 N. Y. 72-76; People v. Albany, 5 Lans. 524-529.) Whatever injury befell plaintiff was the direct consequence of her own deliberate course of conduct. She cannot recover in such a case. (Wilson v. Susquehanna Turnpike Co., 21 Barb. 68, 79; Butterfield v. Forrester, 11 East, 60; Lowery v. Manhattan R. Co., 1 East. Rep’r, 608.)
   Eabl, J.

The defendant, desiring to remové two large cases of merchandise from his store in the city of Hew York, placed a pair of skids from a truck across the sidewalk to the steps of the store. It would have taken not more than five minutes to remove the cases from the store to the truck. After the skids had been there about two minutes, the plaintiff came along the sidewalk, and seeing the skids in her pathway turned toward the store and attempted to pass around the skids, and in doing so she slipped upon the steps and was injured; and then she brought this action to recover damages.

The defendant had the right to place the skids across the sidewalk temporarily for the purpose of removing the cases of merchandise. Every one doing business along a street, in a populous city, must have such a right, to be exercised in a reasonable manner, so as not to unnecessarily incumber and obstruct the sidewalk. When the plaintiff found this obstruction in her pathway, she had the option, either to wait a couple of minutes, or to cross the street and pass upon the other sidewalk, or to pass around the truck in the street, or to take the way she selected. The defendant was under no obligation to furnish her a safe passage-way around the obstruction. (People v. Cunningham, 1 Denio, 524, 530; Commonwealth v. Passmore, 1 Serg. & Rawle, 219; People v. Horton, 64 N. Y. 610.)

The defendant owed the plaintiff no duty to see that its steps were in an absolutely safe condition for travel, and it does not appear that they were dangerous under such circumstances as to charge him with carelessness, even if that would have been sufficient to impose any liability upon him in this case.

We think the judgment should be affirmed.

All concur, except Ruger, Oh. J., not voting.

Judgment affirmed.