author: Pee CueiaM : Charles E. Paekee, J.:

text:
    William C. Doig, Appellant, v. Alonzo A. Haverly and Others, Respondents.

      Chattel mortgages — improperly filed,— a consideration of an antecedent debt does not malee a subsequent mortgagee a holder for value — Laws 1883, chap. 279, § 1.
    The statute relative to the filing of chattel mortgages will not, as against the holder of a prior unfiled chattel mortgage, avail a subsequent mortgagee whose mortgage was given to secure an antecedent debt of which the time of payment was not extended. Such a person is not a mortgagee “ in good faith ” within the meaning of the statute.
    In an action brought,for the conversion of personal property it appeared that on November 30, 1891, the defendants took a chattel mortgage to secure an antecedent debt from Thomas Milward, then living in the town of Tompkins, and that they filed it in the town of Walton; that Milward subsequently removed to Walton, where the mortgage was refiled on December 1, 1892, and. on November 25, 1893; that on June 2, 1893, the plaintiff, without actual notice of the defendants’ mortgage, took and filed in the town of Walton a chattel mortgage @n the same property, given by Milward, then resident there, the consideration of which was an antecedent debt; that this mortgage was never refiled; that on July 18, 1894, the defendants took the property described in both mortgages and sold it to satisfy Milward’s indebtedness to them. Thereupon the plaintiff brought an action for conversion.

      Held, that the defendants had the better title;
    That the plaintiff was not a subsequent mortgagee in good faith who had parted with value, and, therefore, was not entitled to the protection of the statute.
    Appeal by the plaintiff, William 0. Doig, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Delaware on the 28th day of January, 1895, upon the decision of the court rendered after a trial at the Delaware Circuit before the court without a jury.

      The plaintiff in this action sought to recover for the alleged conversion of certain personal property described in the complaint, to which the defendants in their answer claimed title by virtue of a certain chattel mortgage. In the conclusions of law the trial judge found that “ the defendants’ mortgage being prior in time, and being in full force and operation as against the plaintiff’s mortgage, they had a prior- right to the possession of the property in question, and to take and sell the same for the satisfaction of their debt. Therefore, no cause of action accrued to the plaintiff by reason of such taking, and his complaint in this action must be dismissed, with costs.”

      Welsh (& More, for the appellant,

      A. G. Patterson, for the respondents.
   Pee CueiaM :

At the close of the evidence given in the case the parties expressly waived a jury and submitted the questions of fact and of law to the court. Thereafter, findings of fact were made and a conclusion of law stated. We are of the opinion that the evidence warranted the findings of fact made by the trial judge. The questions of law are clearly and fully discussed in an opinion delivered by the trial judge, which meets with our approval, and we, therefore, affirm the judgment upon the opinion of the trial judge;

Present — IIaRdxN, P. J., MabtiN and MbewiN, JJ.

Judgment affirmed with costs on the opinion of PaeKee, J., delivered at the Circuit.

The following is the opinion referred to:

Charles E. Paekee, J.:

The defendants, Ilaverly and Wilcox, on the 30th of November, 1891, took a chattel mortgage from one Thomas Milward to secure an indebtedness that had for some time existed from him to them. Milward was then living in the town of Tompkins, Delaware county, and such mortgage was filed in the town of Walton. No sufficient copy was ever filed in the town of Tompkins. Milward subsequently removed to the town of Walton, and a copy of such mort- ' gage was refiled in that town December 1, 1S92, and copy was refiled in such town November 25, 1893.

On the 2d day of June, 1893, the plaintiff, without actual knowledge of the defendant’s mortgage, took from said Milward a chattel mortgage on the same property to secure the payment of a note which he then held against Milward for the sum of $122.82. Such mortgage was filed on that day in the town of Walton, where Mil-ward then resided, but it was never refiled. On the 18th of July, 1894, the defendants took the property described in such mortgages and sold it for the satisfaction of their said debt, and the plaintiff brings this action to recover the value of the property so sold.

The question is, who has the better right to the mortgaged property ? If the plaintiff was . a mortgagee in good faith, the defendants’ mortgage was utterly void as against him, because it had never been properly filed. (Laws of 1833, chap 279, § 1.) And the fact that plaintiff’s mortgage was not refiled within the year, and that on July 18, 1894, when defendants took the property, neither mortgage Avas properly on file does not alter the case. Though defendants Avere creditors of the mortgagor at that time, they Avere not such creditoi’S as could avail themselves of plaintiff’s omission to refile his mortgage. They Avere not armed Avith any legal process Avbicli authorized them to seize the property. (Button v. Rathbone, Sard & Co., 126 N. Y. 187.)

But the defendants’ mortgage being prior in point of time it gave them the prior right to the property, unless their omission to file it rendered it void as against the plaintiff, and it did not become void under the statute unless the plaintiff occupied the position of a subsequent mortgagee in good faith. It appears from his complaint that on or about May 17, 1893, he sold feed to Milward of the Aralue of $122.82, and took his note for that amount, dated on that day and payable in ninety days. On June 2, 1893, lie took the mortgage in question, from which it also appears that the indebtedness was incurred as above stated, and that the mortgage AA-as given to secure it.

It seems clear, therefore, that the mortgage was given to secure a precedent debt, and for such reason he was not a bona fide mortgagee within the meaning of the statute. (Jones v. Graham, 77 N. Y. 628; Button v. Rathbone, Sard & Co., 126 id. 187.)

The plaintiff, however, seeks to avoid the operation of this rule by testifying that at the time the mortgage was taken Milward said that he could not pay the note when it became due, and that he would like further time on the note, and that he would give the security on condition that the note was to be renewed, and that thereupon the mortgage was taken. There is no extension of time provided for in the mortgage, nor does the evidence disclose that any valid agreement to extend the time of payment for a definite period was ever concluded. Possibly Milward expected that the note would be renewed, but plaintiff does not testify that lie agreed to do so, nor does the evidence show that he was under any contract to do so. Had he sued the note when it became due no fact is disclosed that would have prevented his recovering judgment thereon, though probably he could not in that event have held the mortgaged property. Moreover, if there was a contract to extónd the time of payment for a definite period, on condition that the mortgage be given, we would hardly expect the mortgage to have been so drawn that the mortgagor would be in default on the very day the note became due. It does not appear that the plaintiff parted with any value, or gave up any right on the faith of the mortgage, and hence he is not a mortgagee in good faith. (Cary v. White, 52 N. Y. 138.)

T conclude, therefore, that the defendants were entitled to the property in question, as against the plaintiff, and that this action cannot be maintained.


source: Caselaw Access Project

author: Per CueiaM :

license: Public Domain

text:
    Fish’s Eddy Chemical Company, Respondent, v. Julia Stevens, Appellant.

      Justice’s Court — adjournment — verbal sale of goods — partial delivery and payment, by crediting the vendor with the purchase price in reduction of a debt due the vendee, good within the Statute of Frauds..

    A justice of the peace has authority to adjourn the trial of an action until the next day, to give time to secure the attendance of a -witness against whom an attachment has been applied for; the fact that the justice did not issue the warrant of attachment until he had decided to adjourn the trial until the next day is not material and does not render the adjournment irregular.
    "Where a verbal contract is made for the sale of wood, which, when it is ready for delivery, is measured by the parties; is delivered so far, as possible at that time, and is paid for by crediting the purchase price upon the books of the vendee in reduction of a debt then owing by the vendor to the vendee, the sale is valid within the Statute of Frauds.
    Appeal by tbe defendant, Julia Stevens, from a judgment of tbe County Court of tbe county of Delaware, entered in tbe office of tbe clerk of tbe county of Delaware on tlie 4th day of April, 1895, affirming tbe judgment of a justice of tbe peace.
    Tliis action was commenced in a Justice’s Court to recover tbe value of 100 cords of wood claimed to have been converted by the defendant. Issue was joined August 20, 1894. Tlie defendant’s answer was oral, and contained only a general denial and a demand for a dismissal of tlie complaint, witli costs.
    A jury trial was demanded by tbe defendant, and a jury was drawn Land a venire issued on tlie day issue was joined, and tbe action was adjourned to August thirtieth. On tlie .adjourned day tbe parties appeared by tlieir attorneys, and a jury was drawn and sworn in. The plaintiff then applied for warrants of attachment for tbe defendant Julia Stevens, and for Chauncey Darling, two of its witnesses, who bad failed to appear in obedience to subpoenas served upon them. The court ordered that tbe action be held open until August thirty-first, at one o’clock, to give time for tbe return of tbe warrants of attachment applied for, and excused tbe witnesses and jury in attendance until that time. Thereafter and on tbe same day a warrant of attachment was issued for Julia Stevens and delivered to the constable. No warrant of attachment was issued for Oliauncey Darling.
    On August thirty-first, at one o’clock, the action was called, and tbe plaintiff and jury appeared; the defendant did not appear, and she took no further part in the action.
    Tbe constable’s return to the warrant - shows that upon the witness protesting that she was unable to go to court and testify be left lier at her home.
    After the plaintiff’s evidence was received the jury retired, and afterwards declared their verdict in open court, by which they found in favor of tbe plaintiff for $112.60 damages, and judgment was rendered in favor of tbe plaintiff for $122.80, damages and costs.
    Tbe defendant appealed from said judgment to tbe County Court, where tbe judgment of the justice was affirmed, and from tbe judgment of the Comity Court the defendant appealed to the General Term.
    It appeared from the evidence that in February, 1892, Keeiy Brothers, to whose rights the plaintiff succeeded, bought from the defendant a lot of wood on her lot owned by her, and that in January 1893, the plaintiff’s clerk and defendant’s husband went upon the lot to measure the wood, which consisted of eighty-six and five-eighths cords of the value of $1.30 per cord, amounting to $112.60. This amount was then by agreement- credited to the defendant upon the books of the plaintiff, she at that -time owing the plaintiff more than that. In June, 1893, the foreman of the plaintiff with some men, went upon the lot to get the wood, when they were assaulted by the husband of the defendant, driven off the lot, and prevented from getting the wood.

      JTenry J. Williams, for the appellant.

      I L. Brayman, for the respondent.
   Per CueiaM :

The first question presented on this appeal is whether the justice before -whom the action was tried had authority to adjourn the trial until the return of the warrants of attachment that were issued to secure the attendance of the plaintiff’s witnesses whom it liad subpoenaed, hut who did not appear.

The contention of the appellant is that, because such warrants were not actually issued until the court had decided to adjourn the trial until the next day, it had no authority to grant such adjournment. We think this contention is too narrow and technical to be upheld. The appeal book shows that upon proper proof an application was made for attachments for two witnesses; that it was granted, and the trial adjourned until the next day to enable the plaintiff to secure the attendance of its witnesses. We think this was authorized by section 2967 of tffe Code of Civil Procedure. The fact that the defendant was physically unable to attend, or if not unable, that she convinced the officer that she was, does not render the adjournment irregular.

After a careful examination of the evidence contained in the appeal book, tvitliout referring to it in detail, we are of the opinion tbat it was sufficient to justify tbe jury in finding tliat the defendant’s husband was ber agent, acting for her and with her consent in making and carrying into effect the contract for the sale of the wood in question, and in preventing the plaintiff from removing it.

The appellant’s contention that the contract was void under the Statute of Frauds is not, we think, well taken. The evidence discloses that a contract between the parties was made for the wood in question. After it was ready for delivery it was measured by the parties, and, as far as possible, was delivered to the plaintiff at that time. The portion thus delivered was paid for by giving the defendant actual credit for the amount upon a debt then owing by the defendant to the plaintiff, and by entering such credit upon its books. Under these circumstances we think the contract as to the wood thus delivered and paid for was valid.

Ve have examined all the other questions to which our attention has been called by the defendant’s brief, but find no error that would justify a reversal of the judgment.

Present — ITaediN, P. J., MaetiN and Meewih, JJ.

Judgment affirmed, with costs.


author: Pee Cueiam :

text:
    The People of the State of New York, Respondent, v. Joseph A. Theobald, Appellant.

      Crimes — mutilating an animal — hypothetical question — based on a witness’ testimony.

    Upon the trial of a person for the torture, mutilation and maiming of a horse, it was undisputed that the tongue of the animal was either pulled out by the defendant or bitten off by the animal while the defendant had hold of it. The defendant had described the position of the tongue of the horse at the time. A .veterinary surgeon, called as a witness for the People, was asked, “If the tongue was in the position which defendant testified it was, would it be possible for the horse to bite it oil?” Under objection, he answered, “I think it impossible. I do not think that a man can force a horse's tongue back far enough to bite it off with the grinders.”

      Held, that as the question directed the attention of the witness to the testimony of the defendant alone and to a single fact it was competent and was the same, in effect, as if a hypothetical question had been put which assumed the fact.

      Appeal by the defendant, Joseph A. Theobald, from a judgment of the Court of Special Sessions of the city of Watertown, rendered on March 16, 1895, and affirmed by the Court of Sessions of the county of Jefferson on appeal on the 24-th day of June, 1895, convicting him of the crime of maiming and maltreating a horse contrary to the provisions of section 655 of the Penal Code.

      Thomas F. Kearns, for the appellant.

      V. K. Kellogy, District Attorney, for the respondent.
   Pee Cueiam :

When we apply our common knowledge and experience to the condition disclosed by the proof in this case, it is somewhat difficult to understand clearly how the in jury to the defendant’s horse occurred. Yet, when we consider all the evidence, we are unable to say that the defendant’s treatment of the horse was not unjustifiable, or that he was not guilty of such torture, mutilation or maiming as to constitute a crime under the provisions of section 655 of the Penal Code. That the animal’s tongue was either pulled out by the defendant or bitten off by the animal herself while the defendant had hold of it, is undisputed. If the evidence of some of the witnesses for the prosecution was relied upon, the jury was justified in finding that the defendant tortured, maimed or mutilated the animal, and that he was guilty of the offense charged. Under the circumstances and facts disclosed by the evidence in this case, we are of the opinion that the question of the defendant’s guilt was for the jury, and that we should not disturb the decision of the Court of Sessions upon the ground that the evidence was insufficient to sustain the verdict or judgment.

The only other question which we deem it necessary to consider, relates to the admission of evidence. On the trial the People called Dr. John A. Bell as a witness, who, after having testified that he resided in Watertown, was a veterinary surgeon, graduated at the Ontario Veterinary College, had practiced fifteen years, was familiar with the anatomy of the tongue, and had heard the defendant testify, was asked: If the tongue was in the position which defendant testified it was, would it be possible for the horse to bite it off ? ” This was objected toas “incompetent,-immaterial and irrelevant; reopening case; no evidence that tongue was in position that defendant testified it was, and not proper hypothetical question.” The objection was overruled and the witness answered: “ I think it impossible. I do not think that a man can force a horse’s tongue back far enough to bite it off with the grinders.” The inquiry presented by this ruling is whether this question was proper, or whether it should have been an hypothetical one. We think it was proper. It did not call upon the witness to determine the truth of the defendant’s evidence, but simply to state whether, if his testimony was true, it was ¡possible for the animal to bite off her tongue. It was based upon the assumed truthfulness of the defendant’s own testimony, to which he could not very consistently object. It called for an opinion based upon clearly assumed facts. This ruling was, we think, within the principle of the cases of McCollum v. Seward (62 N. Y. 316) and Seymour v. Fellows (77 id. 178).

The case at bar is clearly distinguishable from those cited by the appellant where the rule has been stated which requires that hypothetical questions should be put to expert witnesses. In those cases the witness was required to consider the evidence of various witnesses and to distinguish that which was material from that which was irrelevant. But in this case none of those objections exist. The question directed the attention of the witness to the testimony of a single witness as to a single fact, and was not in effect different .from what it would have been if an hypothetical question had been put assuming that fact.

We have examined the other questions raised by the appellant, but have found none that would justify a reversal.

The judgment of conviction should be affirmed, and after the judgment is entered in the judgment book, a certified copy of the entry shall be forthwith remitted to the clerk of -Jefferson county, with whom the original judgment roll is filed, in accordance with the provisions of section 54Y of the Codo of Criminal Procedure.

Present — IIaediN, P. J., Maetin and MeewiN, JJ.

Judgment of conviction affirmed, and after the judgment is entered in the judgment book, a certified copy of the entry shall be forthwith remitted to the clerk of Jefferson county, with whom the original judgment roll is filed, in accordance with the provisions of section 54Y of the Code of Criminal Procedure.


author: Pee CueiaM :

text:
    Edward H. Utter, Respondent, v. James D. Nelligan, Appellant.

      County Court — nexo trial therein on appeal from a Justice’s Court — defense of payment to a counterclaim, not pleaded and'payment made after the trial before the justice.

    Where an appeal is taken to the County Court from the judgment of a justice of the peace the case should he tried upon the issues formed hy the pleadings in the Justice’s Court, and the parties should he allowed to make the same proof in the County Court, as they would have been allowed to introduce had the trial proceeded in a Justice’s Court.
    "Upon a new trial in the County Court the plaintiff should he allowed to prove the defense of payment to a counterclaim, notwithstanding the fact that the payment was made after the decision of the case hy the justice.
    Where the proof offered would have been admissible in a Justice’s Court'under the pleadings as they stood, the proof is admissible upon a new trial in the County Court, and a party cannot he required to amend his pleading in that court so as to make the proof admissible.
    Appeal by the defendant, James I). Nelligan, from a judgment of the County Court of the county of Tompkins, entered in the office of the clerk of the county of Tompkins on the 16th day of August, 1895, upon the verdict of a jury rendered by direction of the court upon an appeal hy the defendant from a judgment rendered by a justice of the peace, and also from an order entered in said derk’s office on the 16th day of August, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Holliday <& Denton, for the appellant.

      Newman c& Blood, for the respondent.
   Pee CueiaM :

This is an appeal from a judgment of the Tompkins County Court in favor of the plaintiff, and from an order denying a motion for a new trial made upon the minutes of the trial judge.

The action was originally commenced in a Justice’s Court to recover rent for the use of a house and lot owned hy the plaintiff. The trial in the Justice’s Court resulted in a judgment for the plaintiff for nineteen dollars and fifty cents, and costs. The defendant appealed to the County Court for a new trial, which resulted in the direction of a verdict for tlie plaintiff for the same amount, with costs.

The defendant rented the plaintiff’s house of Joseph Utter and A. J. Glanistcr, who were the plaintiff’s agents, for seven and one-half months, at three dollars per month. lie never paid the plaintiff or his agents any portion of the rent, but claimed to have made repairs upon the premises of the value of $112 under an alleged agreement with the plaintiff’s agents to pay him therefor. The agents denied that there was any such agreement, except for the allowance of one month’s rent for some slight repairs that he was permitted to make.

On September 4, lb94, the defendant brought suit against the plaintiff’s agents to recover for such repairs. The agents set up a general denial, payment and offset for one month’s rent, and upon the trial in Jiistice’s Court, on September 24, 1894, a verdict was rendered for the defendants therein.

On the twenty'-sixth of the same month this action was brought in Justice’s Court to recover for six and one-lialf months’ rent. The defendant set up a general denial, payment and a counterclaim for the same repairs as those upon which he had brought action against the plaintiff’s agents. Judgment Avas rendered for the plaintiff.

In October, 1894, the defendant appealed both of said actions to the Tompkins County Court. The action against the plaintiff’s agents Avas first tried in that court, and resulted in a verdict of thirty dollars for the plaintiff therein, which sum, Avith costs, Avas paid by the plaintiff in this action on March 9,1895. In the following May this action came on for trial before the County Court.

On the trial the plaintiff proved his claim and rested. The defendant then proposed to prove his counterclaim, when it Avas conceded that it Avas the same claim as that upon which the defendant recovered against the plaintiff’s agents, and Avliich Avas paid by the plaintiff. The defendant, however, objected to the plaintiff’s proving such payment upon the ground that there had been no supplemental pleading Avliich gave notice of that defense to the counterclaim. This objection Avas overruled, and the defendant excepted. The plaintiff then proved that the action against his agents had been tried, and resulted in a verdict for the plaintiff in that action, who Avas the defendant in this, and that it Avas paid by the plaintiff in this action to the defendant’s attorney. After this proof was admitted, the defendant offered proof of his counterclaim, which was objected to by the plaintiff and excluded by the court. The court thereupon directed a verdict for the plaintiff for nineteen dollars and fifty cents.

It seems that upon a new trial’ in the County Court on an appeal from a justice’s judgment, the case should be tried upon the issues formed by the pleadings in the Justice’s Court. (Becker v. Barnum, 19 Wkly. Dig. 94; Longrill v. Downey, 7 N. Y. Supp. 503; Thompson v. Pine, 5 Hun, 647; Hayes v. Kedzie, 11 id. 577; Reno v. Millspaugh, 14 id. 229.) Moreover, it was but just that the parties upon a retrial should be allowed to introduce the same proof in the County Court under the pleadings, as they would have been allowed to introduce upon the trial in a Justice’s Court.

If the last trial had been in a Justice’s Court, no reply being necessary, the plaintiff would have been entitled to prove that the defendant’s counterclaim had been paid. We think the same rule should apply upon a retrial of an action in the County Court commenced in a Justice’s Court. In other words, we think that the same proof under the pleadings should be admissible in the County Court as would have been admissible in a Justice’s Court, and that under the-Code of Civil Procedure a party is not required to amend his pleadings in the County Court where the proof offered would have been admissible in a Justice’s Court under’the pleadings as they stood.

Hence, our conclusion is that under the pleadings the plaintiff was entitled to prove that the counterclaim set up by the defendant had been paid; that under the circumstances of this case it was not reversible error to reject the defendant’s evidence as to such counterclaim, and that the court properly directed a verdict for the plaintiff.

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

Judgment and order affirmed, with costs.


author: Pee Curiam :

text:
    In the Matter of the Application of The Glenside Woolen Mills to Lay Out a Highway in the Town of Skaneateles, New York. The Glenside Woolen Mills, Respondent; John K. Doyle and Others, Appellants.

      Highway Law — review of a decision of highway commissioners is to be instituted, not heard, within thirty days —stipulation to correct an order, not an estoppel on an appeal therefrom — Laws 1890, chap. 568, § 89.
    The provisions of a statute, -which, limit in point of time’the right to move for a new trial, or to take an appeal, are to he construed in favor of the party-desiring a review.
    'The purpose of section 89 of the Highway Law, relative to appeals, was to allow . interested parties, who desired to apply to the court for an order vacating or modifying the decision of the' commissioners appointed in a proceeding to determine upon the necessity of a proposed highway and to assess damages, the period of thirty days within which to institute the application or motion. It was not the purpose of the section to require the application or motion to he actually made or heard in court within that time.
    "Where a subsequent order is entered upon a stipulation, its purpose being to correct a former order so as to make it conform to the facts, and show that a motion was not decided upon the merits, the stipulation in no manner estops a party who deems himself aggrieved hjr the order from appealing therefrom.
    Where the County Court holds that a motion or application is made too late, and refuses to pass upon the merits of the matter, the order dismissing the application is appealable to the General Term.
    Appeal by Jolm K. Doyle and others from an order of the County Court of tlie county of Onondaga, entered in the office of tlie clerk of tlie county of Onondaga on the 1st day of May, 1895, dismissing their motion to vacate, set aside or modify the report of ■commissioners theretofore appointed in the proceeding.

      M. E. Driscoll, for the appellants.

      Charles JR. JMilforcl, for the respondent.
   Pee Curiam :

This is an appeal from an order denying the appellants’ motion to set aside the report of commissioners appointed under the Highway Law to determine upon the necessity of a proposed highway in the town of Skaneateles, and to assess tlie damages by reason of laying ■out and opening the same. The' commissioners, determined that the highway was necessary, and that none of the persons through whose land it was proposed to be laid was entitled to any damages • therefor.

The report or decision of the commissioners was made March 14, 1894, filed in the office of the clerk of the town of Skaneateles March 15, 1894, and in the office of the clerk of Onondaga county March 16, 1894. Within thirty days from the time of the filing of the petition in the town clerk’s office, and on the 14th day of April, 1894, the appellants served upon the attorney for the petitioner a notice that on the affidavits accompanying it, a motion would be made on the twenty-seventh of the same month at ten o’clock, „ before the court appointing such commissioners, for an order vacating and setting aside their report or decision. On that day the parties appeared before the court, whereupon the attorney for the respondent objected to the hearing of -the motion on the ground that it was not made within thirty days after the filing of such .report or decision, as required by section 89 of chapter 568, Laws of 1890, and the court, without passing upon the merits, sustained the objection and denied the appellants’ application, with fifteen dollars costs. This order was entered June 25, 1894.

On the thirteenth of the following month the appellants appealed to the General Term of this court. Upon an application made to the County Court on the stipulation of the parties, May 1,1895, the order entered June 25,1894, was vacated and set aside, and another order was entered in its place and stead whereby it was ordered and adjudged that the preliminary objection interposed to the hearing of the motion or application to vacaté the report or ■ decision, be sustained and the motion be dismissed, with fifteen dollars costs. From the last order the appellants appealed to this court May 28, 1895.

The first and only question relating to the merits of this appeal is whether under section 89 the appellants’ motion to vacate the report or decision of the commissioners was in time. So far as material to this question that section provides : “ Within thirty days after the decision of the commissioners shall have been filed in the town clerk’s office any -party interested in the proceeding may apply to the court appointing the commissioners for an order confirming, vacating or modifying their decision, and such court may confirm, ■vacate or modify such decision. If the decision be vacated the court may order another hearing of the matter before the same or other commissioners. If no such motion is made, the decision of the commissioners shall be deemed final. Such motion shall be brought on, upon the service of papers upon adverse parties in the proceeding, according to the usual practice of the court in actions and special proceedings pending therein, and the decision of the County Court shall be final, excepting that a new hearing may be ■ordered, as herein provided.”

The contention of the respondent is that, inasmuch as the motion was not actually brought to a hearing before the court within thirty days after the decision was filed, it had no power to hear it, and that under the statute the decision of the commissioners became final, citing several lexigrapliic definitions of the word “ motion ” as sustaining that contention.

Thus the question presented is whether this statute should be construed as requiring an actual hearing of the application before the court within thirty days after the decision, or as requiring the party seeking to vacate or modify such decision, within thirty days to inaugurate the application or motion by the service upon the adverse parties of the papers required to be served, as the basis of such motion or application.

That provisions of a statute which limit in point of time the right to move for a new trial, or to take an appeal, are to be construed in favor of the party desiring a review, is a well-established principle of the law relating to the construction of statutes. (Sutherland on Stat. Const. § 369, and cases.cited in notes.) Applying this rule to the statute under consideration, we are led to the conclusion that its purpose was to allow persons • interested in the proceeding, who desired to apply for an order vacating or modifying the decision, thirty days within which to institute the application or motion, and that it was not its purpose to require the application to be actually heard or made in court within that time. If the respondent’s contention were to be upheld, and the statute construed as requiring an actual application in court within thirty days, it might often result in great hardship to the party applying for such an order, and actually prevent him from availing himself of the remedy provided for, wifhout any fault or neglect upon his part. On the other hand, if the construction which we have placed upon this statute prevails, it will result in no injury to the opposing party, and will permit one who seeks to avail himself of this provision a certain opportunity to do so. We are of the opinion that the learned 'County Court erred in dismissing the appellants’ application, and that the order should be reversed.

We think the respondent’s claim, that the order appealed from was entered in pursuance of a stipulation which would prevent the appellants from appealing therefrom; cannot be sustained. It is manifest that the purpose of the stipulation was to aid the appellants on an appeal by correcting the order, so as to make it conform to the facts, show the actual determination made by the County Court, and that it did not decide the question upon the merits. Under such circumstances it should not, we think, be held that this order was so far entered by consent as to prevent the appellants from prosecuting their appeal. Indeed, there is no pretense that the appellants consented to the order. They were vigorously opposing it. The stipulation was for the purpose of correcting the order so that it should state truthfully the effect of the decision of the learned County Court.

The court having erroneously held that the motion or application was not made in time, and, having refused to pass upon the merits, the order dismissing the application was, we think, appealable to this court. (Matter of City of Buffalo, 64 N. Y. 547.)

The order appealed from must be reversed with ten dollars costs and disbursements, and the proceeding remitted to the Onondaga County Court to the end that the appellants’ motion may be considered and decided upon the merits.

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

Order appealed from reversed with ten dollars costs and disbursements and proceeding remitted to the Onondaga County Court to the end that the appellants’ motion may be considered and decided upon the merits.


text:
    Michael Hickey, Appellant, v. The Hartford Fire Insurance Company, Respondent.

      Insurance —a delivery of a policy to an agent, who is to issue a new one, does not effect a cancellation of the old, until the new policy is issued.

    In an action brought to recover the amount of a loss by fire under a policy of Are insurance issued by the defendant, the answer, among other things, alleged that the policy had been canceled. It appeared that the plaintiff sent the policy to tlie defendant’s agent for the sole purpose of having another policy issued in its place covering only the property destroyed, the first policy having through an error also insured property located upon another farm; that the purpose was simply to remedy this mistake, and that the property in question should remain insured until the new policy was issued ; that the policy by its terms could only be canceled at the instance of the insurer upon the giving of five days’ notice to the insured and upon returning the premium actually paid, and that no such action had been taken by the insurer, tlie defendant.

      Held, that the complaint, which was upon the original policy, and not upon the promise to issue a new policy in place of tlie original one, was sufficient;
    That, as the evidence tended to show that the parties did not intend a cancellation until the new policy was issued, at the time of the loss the old policy was still in force.
    Appeal by the plaintiff, Micliael Hickey, from a judgment of tbs Supreme Court in favor of tlie defendant, entered in the office of the clerk of the county of Tioga on the 4th day of April, 1895, dismissing the plaintiff’s complaint upon the merits after a trial at the Tioga County Circuit; also, from an order entered in' said clerk’s office on the 4th day of April, 1895, denying the plaintiff’s motion for a new trial made upon the minutes, and also from the order of the court granting a nonsuit upon the trial of the action.

      Martin 8. Lynch, for the appellant.

      Horace McGuire, for the respondent.
   Pee Cueiam :

The complaint in this action in effect alleged that the defendant, through its agent, who was duly authorized to effect and enter into contracts of insurance for it, in consideration of the sum of six dollars and fifty cents, paid by the plaintiff, made and entered into a contract of insurance, by the terms of which it contracted and agreed to insure tbe plaintiff against loss or damage by lire upon a certain frame barn and contents owned by tbe plaintiff, for tbe sum. of $550.

It then alleged that the barn and contents were destroyed by fire,, and that tbe property so destroyed was of a value equal to tbe’ insurance; that proofs of loss were furnished tbe defendant, and that it refused to pay tbe same on the ground that before tbe fire the-’ contract of insurance was canceled.

Tbe defendant, after admitting its incorporation, tbe authority of its agent, tbe destruction of tbe barn and contents by fire, tbe service upon it of proofs of loss, and that it refused to adjust the same, denied tbe remaining allegations in the complaint, and in effect alleged that tbe policy it bad issued bad been canceled.

On tbe trial, tbe plaintiff was nonsuited. Tbe court held r: (1) That the action was upon a policy which bad been canceled, and. (2) that tbe plaintiff could not recover upon tbe contract of insurance made with tbe defendant, because of tbe insufficiency of the-complaint.

In bolding that tbe policy issued bad been canceled, tbe court relied' upon the cases of Von Wien v. S. U. & N. Ins. Co. (118 N. Y. 94) and Crown Point Iron Co. v. Ætna Ins. Co. (127 id. 608). We; think that those cases are not decisive of this, but that they are clearly distinguishable. In this case there was no absolute surrender of the policy. It was left for or sent to tbe defendant’s agent with the-express understanding and for the sole purpose of having another-policy issued in its place which should cover only the property destroyed. Tbe first policy bad insured it with property located-, upon another farm. Upon discovering this and bringing that fact, to tbe knowledge of tbe defendant, it agreed, upon tbe return of’ tbe policy issued, to issue a new and separate policy upon tbe property destroyed. There is nothing in tbe appeal book which discloses any intent upon the part of the plaintiff, or any understanding by the defendant, that the policy issued wras to be surrendered or canceled until a new policy was issued in accordance with the agreement between the parties. We think it is quite manifest that both parties intended that the plaintiff’s property should remain insured, under the policy already issued, until a new one was written to take its place, and that tbe surrender of tbe old and tbe writing of tbe new policy were to be simultaneous. Under sucli circumstances, it could not properly be lield that tbe policy already issued was canceled. By tbe provisions of tbe policy, it could be canceled by tbe defendant only upon its giving five days’ notice and returning tbe premium actually paid.’ Tliat it was canceled by any sucli action of tbe company is not claimed or pretended. On tbe other band, we tbiuk tbe court was not justified in bolding tbat tbe plaintiff intended to have this policy canceled, and thus leave bis property uninsured, until another was issued in its stead.

Moreover, we are inclined to tbe opinion that tbe complaint in this action was sufficient to justify proof of a contract to insure tbe building in question upon tbe terms agreed upon between tbe parties, and to sustain a recovery for a breach of such agreement to tbe extent of tbe loss sustained by tbe plaintiff under the principle of tbe cases of Ellis v. Albany City Fire Ins. Co. (50 N. Y. 402); Angell v. Hartford Fire Ins. Co. (59 id. 171); De Grove v. Metropolitan Ins. Co. (61 id. 594); Train v. Holland Purchase Ins. Co. (62 id. 598); Hubbell v. Pacific Mutual Ins. Co. (100 id. 41); Ruggles v. American Central Ins. Co. of St. Louis (114 id. 415); More v. N. Y. Bowery Fire Ins. Co. (130 id. 537); Forward v. Continental Ins. Co. (142 id. 382, 389).

A somewhat critical examination of tbe evidence and tbe authorities bearing upon tbe questions involved lias led us to tbe conclusion tbat tbe court erred in bolding tbat tbe policy issued by tbe defendant bad been canceled, and tbat tbe plaintiff’s complaint was insufficient to justify a recovery upon tbe contract of insurance made between tbe plaintiff and tbe defendant; tbat tbe court erred in nonsuiting tbe plaintiff, and tbat for tbat error tbe judgment should be reversed.

Present- — -HardiN, P. J., MartiN and Merwot, JJ.

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


author: Per Curiam :

text:
    David Zenner and Others, Respondents, v. George W. Dexter, Appellant.

      Venue — changed to the county where the transactions tools place.

    Where a motion was made to change the place of trial in an action in which the issues were whether the grantor of the defendant had fraudulently purchased the goods in question, and whether the defendant was a purchaser of them in good faith, and it appeared that practically, all the transactions between the parties had occurred in the county of Chenango, the court deemed it proper that the place of trial should he changed to that county.
    Appeal by the defendant, George W. Dexter, from an order of the Supreme Court, made at the Onondaga Special Term, bearing date the 18th day of IVIay, 1895, and entered in the office of the clerk of county of Onondaga, denying the defendant’s motion to change the place of trial of t'he action from the county of Onondaga to the county of Chenango.

      John W. Church, for the appellant.

      Raymond TF. Cobb, for the respondents.
   Per Curiam :

We think the order appealed from should be reversed. The action was replevin to recover certain goods sold by the plaintiffs to the defendant’s grantor, and by the latter sold and transferred to the defendant. The original sale was made by an agent of the plaintiffs in the county of Chenango, and the goods were delivered there. The sale by the purchaser to the defendant was also made in that county. The plaintiffs by this action seek to disaffirm the original sale and recover the goods upon the ground that they were, fraudulently obtained of them by the defendant’s grantor, and that he fraudulently transferred them to the defendant.

It is rendered quite manifest from a reading of the papers contained in the appeal book that on the trial no serious question as to the sale and delivery of the goods by the plaintiffs to the defendant’s grantor will be raised. Obviously, the only issues to be tried in this case are: (1) Whether the defendant’s grantor fraudulently purchased the goods in question, and (2) whether the defendant was a purchaser of them in good faith. As the sale by the plaintiffs was made in Chenango county, if the purchaser was guilty of any fraud, it was perpetrated there. Indeed, practically all the transactions between the parties to such sale took place in the county of Chenango. Again, all the transactions relating to the sale of the goods to the defendant occurred in Chenango county. It seems very improbable that any witnesses out of that county will be called, upon the issue as to the good faith of the defendant’s purchase, or as to the good faith of the original purchase. A careful examination of the papers contained in the appeal book has led us irresistibly to the conclusion that the witnesses who will be examined upon the trial of this case must and will consist principally of residents of Chenango county, and that their convenience requires that the place of trial shall be changed to that county.

¥e think the defendant was not guilty of any such laches as should defeat this motion. The delay was sufficiently explained by the affidavits used upon the motion.

The order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.

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

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.


author: Per Curiam:

text:
    Michael Kehrley, Respondent, v. Caroline E. Shafer, as Executrix, etc., of John H. Shafer, Deceased, Appellant.

      Trial — a judge should not communicate privately in writing with the jwry after it has retired — time within which an application for a new trial must he made — Code of Givil Procedure, § 1002.
    No communication should take place, between the justice presiding at a jury trial and the jury after the case has been submitted to the jury, except in open court and where practicable in the presence of the counsel.
    "Where there has been a violation of this rule the judgment must be reversed, and the court will not stop to inquire whether the information given by the justice was material or influenced the verdict.
    It is improper for the court at the request of a jury, which has retired to deliberate, to send to .the jury a written communication stating the amount which the plaintiff claims.

      A motion for a new trial, based upon such action on the part of the trial judge, is not within the inhibition of section 1002 of the Code of Civil Procedure, providing that a motion for a new trial, founded, upon an allegation of error in a finding of fact or conclusion of law, shall not be made, unless notice therefor be given before the expiration of the time within which an appeal can be taken from the judgment.
    Appeal by the defendant, Caroline E. Shafer, as executrix, etc., of John H. Shafer, deceased, from an order of the County Court of the county of Oneida, entered in the office of the clerk of the county of Oneida on the 17th day of June, 1895, denying the defendant’s motion for a new trial of the action.

      W. L. Goodier, for the appellant.

      Henry F. & J'ames Coupe, for the respondent.
   Per Curiam:

That the case and exceptions were properly settled in this case we have no doubt. As settled they disclose that after the jury had retired to deliberate upon its verdict, the court received from it a written communication asking the court to give the jury the amount claimed by the plaintiff. The court returned the following answer: Plaintiff claims as follows: “Note, $107. Interest from June 12, 1879. Meat, $6.60. Interest from June 12, 1879. Plaintiff figures the amount at $12, making in all $125.60. The jury can verify the calculation of interest.” The defendant’s counsel objected to the court’s communicating anything whatever to the jury not in the presence of the counsel, and especially objected to the communication sent, and excepted to the course pursued by the trial judge in sending it.

It seems to be well settled in this State that no communication whatever ought to take place between the judge or justice and the jury after the case has been submitted, unless it is in open court, and, where practicable, in the presence of the counsel; that where there has been an infraction of this rule the judgment should be reversed, and that the court will not stop to inquire whether the information given by the judge or justice was material or had any influence upon the verdict of the jury. (Bunn v. Croul, 10 Johns. 239; Taylor v. Betsford, 13 id. 487; Watertown Bank & Loan Co. v. Mix, 51 N. Y. 558; Valentine v. Kelley, 54 Hun, 78; Gibbons v. Van Alstyne, 29 N. Y. St. Repr. 461; People v. Linzey, 79 Hun, 23; High v. Chick, 81 id. 100; Seeley v. Bisgrove, 83 id. 293; Wheeler v. Sweet, 137 N. Y. 435; Plunkett v. Appleton, 51 How. Pr. 469; Sargent v. Roberts, 1 Pick. 337.) Applying this rule to the case before us it is quite manifest that the learned county judge erred in communicating with the jury without the consent and under the objection of the défendant, and that the County Court erred in not granting the appellant’s motion for a new trial upon that ground.

As the motion for a new trial, so far as this question is concerned, was founded upon an error in fact, the respondent’s contention that under section 1.002 of the Code of Civil Procedure the motion could not be made unless noticed before the expiration of the time within which an appeal could he taken from the judgment, cannot be sustained. The provisions of that section, so far as applicable here, are: v< Put where it (a motion for a new trial) is founded upon an allegation of error in a finding of fact or ruling upon the law, made by the judge upon the trial, it cannot be made unless notice therefor be given before the expiration of the time within which an appeal can be taken from the judgment.” The motion here was for a new trial, not solely upon the ground of an error in a finding of fact or a ruling by the trial judge, but also for an error in fact which was within the knowledge of the court and was contained in the case and exceptions as made and settled.

Without passing upon the question whether, under the circumstances of this case, errors in the finding of fact or rulings upon questions of law, if any, might be determined by ns, we are of the opinion that the error of the court in communicating with the jury without the consent of the parties was an error in fact which the appellant had a right to have reviewed, and that for such error the judgment should have been set aside and a new trial granted by the County Court.

It follows that the order appealed from should be reversed, with costs, and that the judgment of the County Court should be set-aside and a new trial granted, with costs to abide the event.

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

Order reversed, with costs, and the judgment of the County Court set aside and a new trial granted, with costs to abide the event.


text:
    The People of the State of New York, Respondent, v. David Orr, Appellant.

      Seduction, under promise of mcvrriage — what evidence in corroboration of the female

    The provisions of the Penal Code which require that, upon the trial of a person for the crime of seduction under promise of marriage, the evidence of the female seduced shall be corroborated, are limited to corroborations of the promise of marriage and of the carnal connection, and need not extend to the fact that the female seduced was of previous chaste character and was unmarried.
    The statute will be satisfied, so far as relates to the promise of marriage, by proof of circumstances which usually attend an engagement of marriage; and upon the question of illicit intercourse, corroboration will be afforded by evidence of opportunities and by proof of that confidence and affection for the accused on the part of the female, which render it probable that the act may have been done.
    Proof of the physical condition of the female by a physician, who treated her about the time of the alleged seduction, is competent as corroborating the evidence of the complainant as to the alleged illicit intercourse.
    The People may show by a physician who examined the complainant after the alleged seduction that, upon the day after the examination, the accused came to see him, and wished to know if a lady was there the previous day; that when the witness stated that she was there, he, upon the inquiry of the accused, who had stated that he knew her, informed the accused that this lady was pregnant, and that thereupon the accused said: “ That leaves me in a pretty fix.”' The People may also show that the accused endeavored to induce a physician to perform an abortion upon the complainant. Such evidence tends to corroborate the complainant’s statements that illicit relations existed between her and the accused.
    Appeal by the defendant, David Orr, from a judgment of the Court of Sessions of the county of Onondaga, entered in' the office of the clerk of Onondaga county on the 6th day of May, 1895, upon the verdict of a jury convicting the defendant of the crime of seduction under promise of marriage, and also from an order, bearing date the 6th day of May, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      Hoyt dc Farrington, for the appellant.

      B. J. Shove, District Attorney, for the respondent.
   Per Curiam :

The defendant was indicted and convicted of the crime of seduction under promise of marriage. The statute which defines and regulates that offense provides: “ A person who, under promise of ■ marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character is punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars, or by both.” “No conviction can be had for the ■offense specified in section two hundred and eighty-four, upon the testimony of the female seduced, unsupported by other evidence.” (Penal Code, §§ 284, 286.)

That the evidence of the complainant, if properly corroborated, was sufficient to justify the conviction of the defendant is unquestioned. But the defendant contends that the evidence of the complainant was not corroborated to the extent required by section 286, ¡and consequently that the defendant' should have been acquitted.

It seems to be settled in this State that the evidence required must be corroborative of the promise of marriage and the carnal ■connection, and need not extend to the facts that the female seduced was of previous chaste character or unmarried. (Kenyon v. The People, 26 N. Y. 203; Boyce v. The People, 55 id. 644; The People v. Kearney, 110 id. 188; Armstrong v. The People, 70 id. 38, 44.) In the latter case it was also held that as to the promise of marriage the provision of the statute is satisfied by proof of cir■cumstances which usually attend an engagement of marriage; and ■that as to the illicit intercourse and the inducements which led to ■consent, evidence of opportunities, and that the relations of the parties were such as indicated that confidence in and affection for the accused on the part of the female, which rendered it probable that the act may have'been done, is sufficient. (See, also, The People v. Gumaer, 80 Hun, 78, and Kenyon v. The People, supra.) Proof of circumstances legitimately tending to establish the material facts are. .sufficient to authorize a conviction. (The People v. Plath, 100 N. Y. 590.)

Without attempting to ■ state the evidence in detail, which was ■corroborative of that given by the complainant, a careful study of the proof contained in the appeal book leads us to the conclusion that, under the authorities in this State bearing upon the question, tlie evidence of corroboration was sufficient to justify the submission of the case to the jury.

On the trial,' after the complainant had testified that the offense was committed on February 4, 1894, and that-when committed her vagina was lacerated and there was a flow of blood, and that Dr. Kinne had treated her, the People called Dr. Kinne as a witness, who, under the defendant’s objection and exception, testified to having examined the complainant either late in the winter or early in the spring of the year 1894, and that such examination revealed a wounding and inflammation of the soft tissues, a swelling and laceration of the mucous membrane of the passage of the vagina, with evidences of bleeding, and that he prescribed for her at that time. We think this evidence was admissible as showing a circumstance which tended to corroborate the evidence of the complainant as to illicit intercourse and that the defendant’s objection and exception were not well taken.

Dr. McKenna was also called as a witness for the People, and after testifying- that he knew the complainant, he testified that he first met her at his office between .the 20th and 25th of October, 1894. lie was then asked : “You may state whether or not you made an examination of her at that time. [Objected to as incompetent, improper, immaterial and hearsay and too remote, and in no sense a corroboration of any fact to be established in this case. Objection overruled. Exception taken by defendant’s counsel.] A. Yes, sir; I saw this defendant, David Orr, I think, the next day after that. Q. Now what occurred at that time, doctor; go right on; tell what he said and what you said. [Objected to on the same grounds, incompetent, inadmissible, improper and irrelevant. Objection overruled. Exception taken by defendant’s counsel.] A. He came to my office and wanted to know if there was a lady up there the previous day. I said there was, and he said he wanted to know if she was in a family way; I said she was about four months and a half along; he said, ‘Are you positive?’ I said, ‘I am pretty sure of it.’ He then said, ‘ That leaves me in a pretty fix ; I would like to get help out of it.’ I asked him if he saw the girl the previous evening. He said he did. I asked him if she agreed to everything he said, and he said she did. ‘Well,’ I said, ‘you had better see the girl again ; ’ so he left my office.”

The defendant contends that the admission of this evidence was error, and cites the case of The People v. Kearney (110 N. Y. 188) as sustaining that contention. In that case the defendant was indicted for seduction, and the complainant testified that the offense was committed in July, and that the defendant had frequent intercourse with her until December. The prosecution was permitted to show, under objection and exception, that she had a child in August of the next year. This was held error, as it did not tend to show illicit intercourse thirteen months before the birth of the child. That case is very clearly distinguishable from this. The purpose of the evidence in that case was only to show the fact that the complainant was pregnant in November, while the seduction took place in the preceding July. If the evidence objected to in the case at bar had been only to the effect that the complainant was pregnant in October, the doctrine of the case cited might apply. In this case no such evidence was in fact admitted. The proof here was that the witness examined the complainant, and that the next day he saw the defendant and had a conversation with him. The doctor did not even testify that the complainant was pregnant. The testimony which he gave was of a conversation between him and the defendant, in which he told the defendant that the lady who visited him on the previous day, who was the complainant, and about whom the defendant inquired, was in the family way four and one-half months along. To that statement the defendant replied: That leaves me in a pretty fix; I would like to get help out of it.” That the evidence of this conversation was admissible, we have no doubt. Its admission was not in conflict with the decision in the Kearney case. "We think the exception was not well taken.

Nor do we think the court erred in admitting the evidence of the prosecutrix and Dr. McKenna tending to show that the defendant tried to induce the former to have an abortion performed. The proof was of conversations with the defendant in regard to the condition of the prosecutrix, and included a yiroposition by him that an abortion should be procured. This was, we think, so far, a part of the transaction between the prosecutrix and the defendant as to render the conversation between them admissible. It tended at least to corroborate the statement of the prosecutrix as to the relations which existed between herself and the defendant, and to show that he sought to prevent publicity of her condition which resulted from a course of action commenced by the perpetration of the crime charged. (People v. Murphy, 135 N. Y. 450; Hope v. The People, 83 id. 418, 427; Pierson v. The People, 79 id. 424.)

We have carefully examined all the remaining exceptions to which our attention has been called by the appellant’s brief, but we- have found none that would justify a reversal of the judgment or that require special discussion. It follows that the judgment and order should be affirmed.

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

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


text:
    Margaret Hatzung, Respondent, v. The City of Syracuse and Patrick R. Quinlan, Appellants.

      Municipal corporation — defects in assessment proceedings — curative laws — notice to the property owner essential in all cases.

    The general rule concerning statutes which are designed to cure defects in assessments for municipal improvements is that if the thing omitted, constituting the defect in question, is something which the Legislature might have dispensed with in the previous statute, it may do this by a subsequent one. If the irregularity consists in doing some act, or in doing it in a manner, which the Legislature could, by the prior statute, have made immaterial if it had so elected, it may cure the defect by a later one.
    To this extent the Legislature may ratify the contract of a municipal corporation which has been made for a public purpose, and it may establish and confirm municipal ordinances and proceedings which were irregularly adopted or instituted in the first instance.
    Where a property owner has had actual notice of the assessment and an apportionment of the assessment among the owners of the property affected, and has been afforded an opportunity to appear and question as well the validity of the assessment as the proportion of it which he should pay, and no statutory requirements have been disregarded which might not have been lawfully omitted from the statute authorizing the proceeding, it is within the power of the Legislature to pass an act ratifying and confirming the assessment made, and imposing the tax under it, upon the property affected, in accordance with the assessment as made.
    Appeal by the defendants, The City of Syracuse and another, 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 8th day of April, 1895, upon the decision of the court ren dered after a trial at the Onondaga Special Term.

      Charles E. Ide, for the appellants.

      Knapp, Nottingham & Andrews and W. ¡S. Andrews, for the respondent.
   Per Curiam :

The purpose of this action was to vacate and set aside a local assessment upon the property of the plaintiff which fronts upon East Water street in the city of Syracuse. Proceedings were instituted to pave that street, under and in pursuance of which the city entered into a contract therefor. The work was performed by the contractors, and to pay for it the assessment in question was made.

The plaintiff contends that the proceedings which resulted in the assessment were irregular in the following particulars : (1) That the resolution directing the city clerk to advertise for bids did not become operative until signed by the mayor four days after the publication of notice to contractors was commenced j (2) that such notice was not published in the official newspaper of the city for the length of time required by the statute; (3) that the specifications were not prepared in time, a portion of them not having been •completed until two days before the proposals were to be received; (4) that the contract was not let to the lowest bidder ; and (5) that the assessment covered work for which no contract was made.

The court at Special Term discussed all these questions, but based its decision upon the sole ground that the contract was not let to the lowest bidder.

The appellants contend that the court erred in setting aside the assessment, and insist that there were no such irregularities in the proceedings as to render them ineffectual or void. To uphold the proceedings and as a ground for the reversal of the judgment, they also rely upon a statute subsequently passed (Chap. 817, Laws 1895), which so far as it applies to the assessment under consideration provides : “ Section 1. All and each of the assessments heretofore made and levied for grading, paving, repaving and improving the several streets, avenues and portions thereof in the city of Syracuse, more particularly described as follows, to wit: Crouse avenue, from Water street to University place ; East Water street, from Warren street to Pine street; * * * are and is hereby in all respects ratified, confirmed and declared legal, and the same shall be enforced and collected in the manner prescribed bylaw for the collection and enforcement of assessments made and levied in said city of Syracuse for local improvements. * * * § 3. No assessment or tax heretofore or hereafter assessed, made or levied for any improvement as heretofore referred to and provided, shall be in any manner impaired or rendered illegal, invalid or uncollectible because of any omission or irregularity, uot fraudulent, preceding or attending the making, execution and performance of the several contracts for such work and improvements.”

The respondent practically concedes that this appeal must be decided upon the law as it stands at the time the decision is rendered, and that the foregoing statute is a public one, of which the. court must take notice. She, however, seeks to uphold the judgment upon the ground that this curative statute violates that provision of the' Constitution which prohibits the taking of property without due process of law, and is, therefore, void. That this statute, if constitutional, is sufficiently broad to validate the assessment against the plaintiff’s property is not denied, and, hence, the sole question upon this branch of the case relates to the constitutionality of such statute.

The earlier cases in this State relating to the constitutionality of such curative statutes seem to establish the doctrine that assessments for municipal improvements are a species of tax, the imposition of which is within the power of the Legislature and unlimited, except as specifically restrained by the Constitution, and that where an assessment for municipal improvements is irregular, the Legislature itself, -without notice to the persons assessed, may make the assessment, or may authorize a reassessment. (Matter of Van Antwerp, 56 N. Y. 261; Howell v. The City of Buffalo, 37 id. 267; The People ex rel. Griffin v. Mayor, etc., 4 id. 419; Thomas v. Leland, 24 Wend. 65.)

The respondent practically concedes that if these authorities are to be followed, the curative statute under consideration was valid, and the judgment herein should be reversed. She contends, however, that the authorities cited have been modified, if not overruled, by subsequent cases, and, as sustaining that proposition, refers to the cases of Stuart v. Palmer (74 N. Y. 183); Matter of Trustees of Union College (129 id. 308); Cromwell v. MacLean (123 id. 474); McLaughlin v. Miller (124 id. 510); People ex rel. Pulman v. Henion (64 Hun, 471); Remsen v. Wheeler (105 N. Y. 573), and Ensign v. Barse (107 id 329). In the Stuart case, which involved the validity of a statute imposing an assessment for local improvements which in no way provided for a notice to the persons who were to be assessed, or for an opportunity for them to be heard, it was held that the statute was unconstitutional, as it had the effect to deprive the owner of his property without due process of law. In that case it was said : “ The Legislature may prescribe the kind of notice and the mode in which it shall be given, but it cannot dispense with all notice.” Assuming the correctness of this decision, and that it has the effect of modifying the earlier cases, still it is not controlling in this case. In that case no provision whatsoever Avas made for notice to the OAvner; in this the statute provided for notice to the owners, and gave them ample opportunity to appear and to be heard upon the question, of their assessment.' After they had that opportunity, and the proceedings in other respects were found to be informal and irregular, the Legislature passed a curative act confirming and legalizing the assessment thus made. Therefore, the case at bar is clearly distinguishable from the Stuart case.

The Matter of Trustees of Union College involves substantially the same principle as that decided in the Stuart case, and holds that the Legislature' could not validate an act which was invalid because it provided for the apportionment of a tax Avithout notice by simply re-enacting the act. In that case, as in the Stua/rt case, there was no notice whatsoever.

In the Cromwell case it Avas held that Avhere proceedings are ,so defective as to result in no valid assessment, and where a sale made under it conveys no title, tlius leaving in the original owner his title or interest unimpaired, the Legislature has no power to validate the sale and thus transfer such title to the purchaser at the tax sale. In the opinion in that case it was in effect said that the Legislature had large powers in curing defects in such proceedings as this, and that where in the proceedings the owner has liad an opportunity to be heard before the tax was imposed, but defects have been discovered in the proceedings, if the defect is of such a nature that the Legislature might have dispensed with it, or if something had been done which the Legislature might have made immaterial, the omission or irregular act might be cured by a subsequent statute (Ensign v. Barse, 107 N. Y. 329), and that such an act might take away from a taxpayer a defense to the further proceedings against him to collect the tax which he otherwise would have had. (Tifft v. City of Buffalo, 82 N. Y. 204.)

The McLaughlin case is to the effect that where the duty of apportioning the expense of a municipal improvement by assessment is devolved upon any board or officers, some provision for notice to the property owners is essential, otherwise they would be deprived of their property without due process of law.

The cases of People ex rel. Pulman v. Henion (64 Hun, 471) and Remsen v. Wheeler (105 N. Y. 573) are to the same effect.

In the Ensign case there was an omission of the dollar mark in the statement in the tax roll and warrant of the amount of a tax; the assessment roll was not signed by the assessors, but the certificate referred to it as an assessment roll; in the certificate of valuation the words “solvent creditor” were used instead of “solvent debtor; ” in the assessment for a highway tax, the number of the road district or the date of the commissioners’ warrant was not given; and the county treasurer’s notice of sale was not delivered the first of September as required by statute, but the notice was dated September fifteenth. And yet it was held in that case that none of these defects was jurisdictional. After a reargument the court discussed the question of jurisdictional defects, stating that in its former opinion the defects were not deemed jurisdictional in any other sense than the modified one of an essential condition under the law as it stood, and then added: “ Whether it was so jurisdictional as that the Legislature could not have dispensed with it, and, therefore, could not cure its omission, is a very different inquiry. A defect may be in one sense jurisdictional relatively to the authority of the assessors acting under an existing law, and yet not so as it respects the power of the Legislature to pass a statute curing the defect.” We find in these cases no principle that would justify us in upholding the judgment herein, but, on. the contrary, they are all consistent with, and tend to sustain, the validity of the statute under consideration.

An examination of the authorities bearing upon the question renders it quite manifest that the Legislature had authority to validate the proceedings under consideration. The general and established rule in relation to curative statutes seems to be that if the thing omitted, which constitutes the defect sought to be removed, is something which the Legislature might have dispensed with by a previous statute, it may do so by a subsequent one. If the irregularity consists in doing some act or doing it in the mode which the Legislature might have made immaterial by a prior statute, it may do so by a later one. It may thus ratify a contract of a municipal corporation for a public purpose and establish municipal ordinances and proceedings irregularly adopted or instituted. (Sutherland on Statutory Construction, § 483; Dillon on Municipal Corporations [4th ed.], § 79 ; Matter of Delaware & Hud. Canal Co., 60 Hun, 204; Brewster v. City of Syracuse, 19 N. Y. 116; Town of Duanesburgh v. Jenkins, 57 id. 177; Brown v. Mayor, etc., 63 id. 239; People ex rel. Kilmer v. McDonald, 69 id. 362; People ex rel. B. C. R. R. Co., v. Board of Assessors of Brooklyn, 92 id. 430; Grenada County Supervisors v. Brogden, 112 U. S. 261, 271; Anderson v. Santa Anna, 116 id. 356, 364; Bolles v. Brimfield, 120 id. 759, 762.)

That the Legislature might have dispensed with all the requirements that were not complied with in the proceedings under consideration, we have no doubt. This is hardly disputed by the respondent. Her principal insistence is that as the curative statute under consideration did not provide for a reassessment with notice to the owners, it falls within the doctrine of the cases requiring notice, and is consequently invalid. We think this insistence cannot be sustained. The purpose of this statute was to validate the assessment, and the Legislature by the passage of that act in effect. adopted the apportionment and assessment previously made, and imposed the tax upon the property affected in accordance with such previous assessment. That it might do 'this seems to be sustained by the cases of Lennon v. Mayor, etc. (55 N. Y. 361, 367); Cromwell v. MacLean (123 id. 474, 490), and Tifft v. City of Buffalo (82 id. 204, 210). In the latter case, Forger, Ch. J., said: “ Where there was municipal jurisdiction of the subject-matter, and the defects in the exercise of it are irregularities in the mode of procedure, it is within the legislative discretion to adopt and confirm the result of the informal act, or to send back the matter to the municipality, with power to begin again and go forward in the mode prescribed by the original authority.”

It is manifest from the evidence in this case that the plaintiff had notice of the assessment and apportionment of the tax among the owners of the property fronting upon the street in question, and thus had an opportunity to appear and question the validity of the assessment as well as the proportion she should pay. It is also manifest that the omissions in the proceeding were clearly such as, within the authorities, the Legislature might validate. It may be that the requirements of the statute as they existed before the passage of the curative act were not sufficiently complied with to render the proceeding regular and valid, and yet, as the officers of the city had jurisdiction of the subject-matter, and the defects were such that the Legislature might have • passed a statute authorizing their omission, they were not so far without jurisdiction as to prevent the Legislature from validating them. By the curative act the Legislature has made that legal which was perhaps originally without sanction, and thereby rendered the assessment against the plaintiff valid.

These considerations lead us to- the conclusion that the curative statute under consideration was valid, and that the judgment should be reversed.

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

Judgment reversed, without costs to either party.


text:
    A. D. Merry, as Receiver of the Property of Dwight Wilcox, Appellant, v. Dwight Wilcox and Others, Respondents.

      Chattel mortgage— a delay of ten weeks before filing will'invalidate the mortgage— rights of a bona-fide pwrehaser at a sale under the mortgage.

    A delay of two and one-half months before a chattel mortgage is filed, unexplained, is sufficient to invalidate the mortgage as against a judgment creditor of the mortgagor.
    Where a mortgagee takes possession of the property by virtue of the mortgage, advertises it for sale and sells it to a bona fide purchaser before the creditor of the mortgagor has acquired any lien upon or interest in the property by virtue of legal proceedings, a bona fide purchaser at' such sale obtains a valid title which he can maintain against a receiver of the property of the mortgagor appointed in proceedings supplementary to execution, instituted upon a judgment recovered against him.
    ■ Appeal by the plaintiff, A. D. Merry, as receiver of the property of Dwight Wilcox, from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oswego on the 25th day of May, 1895, upon the decision of the court rendered after a trial at the Oswego Special Term dismissing the plaintiff’s complaint upon the merits.

      Gill, Stilwells <& White, for the appellant.

      O. M. Reilly, for respondents Howard Wilcox and William Greene.
   Per Curiam :

As indicated by the complaint, the purpose of this action was to procure a judgment adjudging that as against the plaintiff a chattel mortgage made by the defendant Dwight Wilcox to Howard Wilcox was void; that the title of William Greene, who purchased the property upon a sale under such mortgage, was invalid; that the plaintiff was the owner of the' mortgaged property, and that the defendants be required to deliver it to him, or that an accounting be had with the defendants, and that they be required to pay the plaintiff the value thereof.

On October 18, 1894, the First National Bank of Syracuse recovered a judgment against Dwight Wilcox for $609.13, which was ■entered in Onondaga county. On that day a transcript was filed, the judgment was docketed in Oswego county, and an execution was issued thereon to the sheriff of that county, where the defendant ' Dwight Wilcox then resided and npw resides. Subsequently such proceedings were had that the plaintiff was duly appointed receiver of the property of the defendant Dwight Wilcox, and qualified as s^lch. The order appointing him was entered in Onondaga county, and a copy thereof filed in Oswego county December 12,1894.

On the 1st day of August, 1894, Dwight Wilcox was the owner of the property mentioned in the complaint, and for the purpose of securing Howard Wilcox for the sum of $400 loaned by him to Dwight Wilcox, the latter on that day executed and delivered to the former a chattel mortgage thereon. At the time the mortgagor was indebted to various persons, among others to the First National Bank of Syracuse for the claim upon which its judgment was recovered. The mortgagee intentionally retained the mortgage in his possession until the 17th of October, 1894, when it was filed in the office of the clerk of the town of Granby, where the mortgagor resided. On the twentieth day of October the mortgagee caused three notices to be posted in that town advertising the property for sale, under the power contained in the mortgage, and in pursuance of such notice sold it on the morning of October twenty-seventh to the defendant William Greene for $225. Since the sale the property has been in the possession of the purchaser, except a small portion, which remains in the hands of the mortgagor. The execution of this mortgage was not accompanied by any immediate delivery of the mortgaged property or followed by an actual or continued change of possession, nor was the mortgage filed until October 17, 1894.

The execution in favor of the bank was returned wholly unsatisfied before the commencement of .this action, and before that time the plaintiff demanded of the mortgagee and of the purchaser the possession of the mortgaged property or payment of the value thereof. The defendant Howard Wilcox is irresponsible.

The mortgage.was given and received to secure the payment of án honest debt, with no intention on the part of either the mortgagor or mortgagee to cheat or defraud the bank, or any other creditor. The property was purchased by the defendant Greene, without any notice or knowledge that the First National Bank had any claim against the property, or that any person claimed any interest in it, except the mortgagor and mortgagee. The foregoing is a brief statement of the facts found by the trial court.

Upon these facts the Special Term held that the defendant Greene was a purchaser in good faith, for a valuable consideration and without notice, and that the defendants were entitled to a judgment dismissing the complaint upon the merits, with costs.

Upon filing this decision, a judgment was entered in accordance with it. The propriety of this judgment is challenged by the appellant. The appeal in this case was heard upon the judgment roll and exceptions only, and in determining it the facts as found by the trial court may be regarded as established. The broad question presented is whether upon the facts found the conclusions of law and judgment entered in pursuance thereof can be upheld.

As the mortgage in this case was not accompanied by an immediate delivery and a continued change of the possession of the property mortgaged, it was absolutely void as to the creditors of the mortgagor, unless the mortgage or a copy thereof was filed as required by chapter 279 of the Laws of 1833. The bank was a creditor as to which the mortgage was void. (Karst v. Gane, 136 N. Y. 316; Stephens v. Perrine, 143 id. 476; Mandeville v. Avery, 124 N. Y. 376.) In this case there was a delay of more than two and one-half months before the mortgage was filed, and there were no circumstances or facts found which indicated that any such delay was necessary. On the contrary, the court found that the mortgage was intentionally retained in the possession of the inortgagor from the time it was given until.the date of its filing. Under such circumstances, the mortgage was void as against the claim of the bankl (Karst v. Gane, supra) In that case it was held that while the statute of 1833 does not in terms require an immediate filing of a chattel mortgage to make it valid, yet prompt and diligent action on the part of the mortgagee is required. It was also held that in the absence of circumstances rendering the delay necessary, where there was a delay of six weeks after its execution in filing a chattel mortgage, such filing was not a compliance with the act.

Assuming then, as we must, that as to the creditor represented by the plaintiff, the mortgage was void, two questions are presented: (1) Whether the plaintiff was entitled to recover from the mortgagee the proceeds of the property sold; and (2) whether Greene, who was a bona fide purchaser, acquired a valid title to the property as against the plaintiff..

We think the first question must be answered in the affirmative. Mandeville v. Avery (124 N. Y. 376) seems to be in point and decisive of the question. In that case it was held that although the mortgagee had an honest claim which the mortgage was given to secure, yet as there was no change of possession, and the mortgage was not properly filed, lie could not as against a creditor of the mortgagor retain the property obtained by him under his mortgage, and that when the property had been taken and sold by virtue of the mortgage before any lien was' obtained by the creditor, the mortgagee might be compelled by the creditor to refund the proceeds. Hence, the plaintiff was entitled to a judgment requiring the mortgagee to account for and pay over to the plaintiff the proceeds of the sale.

This leads us to consider whether the plaintiff could enforce any claim to the property against the defendant Greene, who was a bona fide purchaser. When he acquired his title neither the bank nor the receiver had any right to or interest in it. When the receiver was appointed the title which the mortgagor and mortgagee had in the property had been wholly divested. It had been previously transferred to a bona fide purchaser. It is true that the supplé: mentary proceedings were instituted' the day before the mortgage sale, but, under the Code of Civil Procedure, the title of the receiver did not extend back by relation to that time. The provisions of the Code which establish the time when the title shall vest in such a receiver, and when it shall extend back by relation to the commencement of the proceeding, declare that its provisions shall not affect the title of a purchaser in good faith without notice, and for a valuable consideration. (Code Civ. Proc. § 2169.)

If the property had been purchased by the mortgagee he would ’ have acqizired no title that could have been maintained against the creditor or receiver. (Stephens v. Perrine, supra.) But, as the title had vested in a bona fide purchaser before the creditor acquired any lien upon or interest in the property, and before the receiver was appointed, we are of the opinion that the purchaser obtained a valid title, which he can maintain as against the receiver. Although not directly deciding the question, the cases of Kitchen v. Lowery (127 N. Y. 53, 60); Mandeville v. Avery (124 id. 376, 385); Zoeller v. Riley (100 id. 102); Simpson v. Del Hoyo (94 id. 189), and Ledyard v. Butler (9 Paige, 132), seem to recognize that doctrine. If the opposite doctrine were to obtain, titles to personal property, which liad been sold under a chattel mortgage, would be rendered dangerously uncertain.' ■ We cannot believe that it was the purpose of the statute of 1833 to render such a mortgage void, except as between the creditors and parties to the mortgage, or persons acquiring title under it mala fides, or without consideration.

These conclusions, if correct, require a reversal of the judgment as to the defendant Howard Wilcox, and that it should be affirmed as to the other defendants.

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

Judgment reversed and a new trial granted as to the defendant Howard Wilcox, and judgment affirmed as to the other defendants, without costs of this appeal to either party.