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    In the Matter of the Final Accounting of Edward J. Maxwell, Appellant, as Assignee of John Reddish.

      Appeal — not heard twice under distinct notices of appeal.

    "Where a notice of appeal to the General Term is addressed to all the parties in the action other than the appellant, and is served upon only a portion of them, and the case is argued before and decided by the General Term upon such appeal, that court -will not hear a further argument in the same case under a subsequent notice of appeal served upon those of the parties to the action upon whom the first notice of appeal was not served.

      Motion to dismiss an appeal taken by Edward J. Maxwell from a-decree of the County Court of Montgomery county, dated October 19, 1891, and to strike the case from the calendar of the court.

      Z. S. Westbrook, for the respondents and motion.

      Edward J. Maxwell, appellant, in person, opposed.
   Herrick, J.:

This is a motion to dismiss the apjieal of Edward J. Maxwell, and strike the case from the calendar of this court.

On the 19th day of October, 1891, a decree was made by the county judge of Montgomery county, stating the account of Edward J. Maxwell, as assignee, charging him with the receipt of certain assets and directing the payment of certain claims.

On the 6th day of November, 1891, he gave notice of an appeal directed to Daniel M. Reddish and Henry E. Reddish, creditors, among others, wherein he gives notice that he appeals “from so much of the decree and judgment herein as adjudges and decrees that said assignee be charged upon the accounting with the sum of $4,757.39, and directs said assignee to distribute the sum of $2,496.67 as specified in said decree, as follows, viz., to Daniel M. Reddish, the sum of $291.10 ; to the First National Bank of Amsterdam, the sum of $967.02; to Henry E. Reddish, the sum of $307.89. Also, from so much of said decree and judgment as confirm the reports of H. L. Huston, the referee appointed to take and state the account herein.”

. This appeal was brought on for argument before this court, and the decree and judgment thereon affirmed. (66 Hun, 151.)

The notice of that appeal does not appear to have been served upon either of the Reddishes; the First National Bank of Amsterdam, a creditor of Maxwell, assignee, being both a respondent and appellant, was the only party appearing upon the hearing in opposition to Maxwell.

Subsequently, the appellant, Maxwell, by a paper dated August 21, 1893, directed to Westbrook & Borst, as attorneys for Henry E. Reddish and Daniel M. Reddish, and to Henry E. Reddish and Daniel M. Reddish, personally, gave notice that he appealed “ from so mucli of the judgment and decree In the above-entitled matter, entered herein on the 19th day of October, 1891, as directs the payment to the said Henry E. Reddish of the sum of $742.12, in the aggregate, and to the said Daniel M. Reddish the sum of $291.10, and as confirms the reports of the referee on the accounting herein, and also to so much of the said decree as charges said appellant with the sum of $753.34, value of certain wool specified in said decree, and with seventy dollars, value of buggy.”

From this it will be seen that both appeals are from the same judgment and decree, and that all the parties hereto were parties to such decree, and those who were named in and made parties to this second appeal were named in and made parties to the first appeal, although not served with notice of the first appeal.

The propriety of the referee’s findings were passed upon when these proceedings were first before this court, and the amount that the assignee should he charged with was investigated and the referee’s report confirmed.

It is not tolerable to permit an assignee to take separate appeals as to each of the creditors of the estate; the decree made covers all the claims against the estate; all the creditors were parties to it, and all the creditors as to the allowance of whose claims the assignee proposed to object were proper and necessary parties to the appeal; he made them such parties in his first appeal, and he cannot subsequently separate them and- bring the case of some of them before the court at one time, as one case and one appeal, and the others before the court at another time, as another case and another appeal, and vex the court by unnecessary litigation.

It is one decree and judgment that has been appealed from, and upon that the appellant has been heard; a rehearing cannot be obtained by bringing the case up again as to other parties who were not brought into court because of the appellant’s own act, although formally made parties to the appeal.

The appellant Maxwell is an attorney and counselor of this court, and in the proceedings before the referee, it appears from the moving papers herein, and is admitted by him, that he represented the ■creditors Henry E. Reddish and Daniel M. Reddish, and presented their claims against the estate of which he was the assignee to the referee, and that in such proceedings they had no other representafive or attorney but bim. Tbe impropriety of tbe assignee acting as attorney for creditors of tbe estate must be obvious to any one, but having so acted it would be intolerable to permit bim to appeal from a decision in tbeir favor, wbieli chances in its ultimate result to affect bim pecuniarily. If it affected other creditors of tbe estate it is possible that such other creditors would have a sufficient ground of appeal from tbe very fact that tbe assignee has appeared as attorney for tbe Reddisbes in such proceedings, but be cannot be permitted to apply for sucli relief.

Tbe appeal is dismissed, the case stricken from tbe calendar of this court, with ten dollars costs of motion.

Mayham, P. J., and Putnam, J., concurred.

Motion to dismiss appeal granted, with ten dollars costs.


source: Caselaw Access Project

author: Herrick, J.: Mayham, P. J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Alexander B. Terwilliger, Appellant.

      Hope — speedy disclosure by the prosecutrix — circumstances excusing delay —Penal Code, § 283 • — ■ corroborating evidence.

    The case of rape is an exception to the rule that the evidence of a witness cannot be corroborated or confirmed by proof that such witness stated the facts testified to on the trial on some previous occasion, when not under oath. Such a disclosure must, however, be made at the first suitable opportunity, although there are circumstances which will excuse delay in making it.
    Upon the trial of a person accused of the crime of rape, it appeared that at the time the rape was committed the woman assaulted was sixteen years of age ; that for seven days after the alleged commission of the crime she was at a place 'a. considerable distance from her home with old people, to whom it would not bo natural for her to confide what had befallen her, and within a short distance from the defendant, who had threatened to kill her if she disclosed what had occurred; that she expected shortly to return to her parents, and that immediately upop her return she told her mother what had occurred.

      Held, that, under the circumstances, it was proper to submit to the jury evidence of the disclosure made by her to her mother. (Mayiiam, P. J., dissenting.)
    It is not necessary under section 283 of the Penal Code that a prosecutrix should be corroborated upon every material point of her testimony. There must be corroborative evidence fairly tending to prove that the crime was committed, and that it was committed by the defendant. It is not necessary that the corroborative evidence should be such as to exclude every hypothesis but guilt, and a disclosure within proper time is some corroboration. If opportunity for the commission of the crime and the recent rupture of the hymen be shown, there is sufficient corroborative evidence of the commission of the crime. (Mayham, P. J., dissenting.)
    Appeal by the defendant, Alexander B. Terwilliger, from a judgment of the Court of Sessions, held in and for the county of Ulster, convicting the defendant of the crime of rape, and from an-order made by the Court of Sessions of the county of Ulster, and entered in the office of the clerk of the county of Ulster on the 11th day of July, 1893, denying the defendant’s motion for a new trial on the ground "of newly discovered evidence.

      William Lounsbery, for the appellant.

      F. A. Westbrook, for the respondent.
   Herrick, J.:

The questions in this case upon which the defendant mainly relies'for a- reversal of the judgment of conviction are : First, the reception of the evidence of the complainant that she disclosed the facts-of the assault to her father and mother for the first time a week after it took place; second, that her testimony as to such assault was not sufficiently supported or corroborated to warrant a conviction under section 283 of the Penal Code.

The case of rape is an exception to the rule that the evidence of a witness cannot be corroborated or confirmed by proof that such witness stated the facts testified to on the trial on some previous occasion when not under oath. (People v. O'Sullivan, 104 N. Y. 481.)

And while in that case the court held that the evidence was inadmissible, because the disclosure was not promptly made, and that the: reason upon which the rule is based for the reception of such evidence; requires that the disclosure should be recent, and made at the first'; suitable opportunity, yet the court goes on to say: There may be-circumstances which excuse delay, as when the prosecutrix is under-physical control of the defendant; when she is among strangers, and' there is no one in whom she can confide ; when she is induced to-silence by threats, and is so far within the power or reach of the-defendant that the threats may be executed. In such and other like ■cases delay may be excused, and tlie disclosure may be proved, and .all tlie facts submitted to tlie jury for them to determine what weight shall be given to the disclosure, and what effect the delay .shall have.”

In this case the prosecutrix was a girl sixteen- years of age. ■She was away from home, some eleven miles distant, with her grandfather, an old gentleman of the age of about seventy years.

The defendant induced her, with the consent of her grandfather, to accompany him to his house, some three miles distant, to sit up with his mother-in-law, who was sick; and while taking her to his house, it is claimed tlie assault was committed. lie threatened to kill her if she disclosed the fact to any one. That night she spent at his house with his family; the next day she returned to her grandfátlier’s, the only persons there at the time being her grandfather and a cousin of his, who appears to have been an old lady; her grandmother, also an old lady in feeble health, was absent from home -at the time, but returned prior to the prosecutrix leaving for her ■own home.

The prosecutrix did not tell her story of the assault to any one until she reached her home, seven days after its alleged occurrence, ■and then, before she had removed her outer garments, she told Avhat had happened to her.

There may be some question as to Avhether the objections and •exceptions are sufficient to raise the point under discussion; the fact that she told her mother Avas testified to by the prosecutrix Avithout objections or exceptions by the defendant. The fact that she disclosed it to her father and mother was testified to by both of them without objection. The question which was objected to Avas asked -after the testimony Avas given that she had made the disclosure to them, and was as folloivs: “ Q. Did not she say who committed it; I do not ask who it was ? [Question objected to as irrelevant, immaterial and hearsay. Objection overruled and the defendant •excepted.] A. She did.”

But for the purposes of this case it Avill be assumed that such objection is sufficient to raise the point.

It seems to me that the prosecutrix, under all the circumstances appearing in the ease, her youth, the fact that she was a considerable distance from her home, Avith old people, to whom it would not be natural for lier to confide wliat had befallen her, the fact tliat she was witliin a comparatively short distance of the defendant, who had threatened to kill her if she disclosed wliat had occurred ; that ■she expected shortly to return to her parents, her natural guardians and confidants ; that immediately upon her return home, before she had removed her “ wrap,” she told her mother what had occurred; “this, it seems to me, brings it within the line of exceptions to immediate ■disclosure spoken of in the case of People v. O’Sullivan (supra.)

It was proper that the testimony should be submitted to the jury, for it to determine what weight should be attached to it under all the circumstances, and it was, therefore, properly admitted.

As to the second ground relied upon for a reversal the question is, to what extent it was necessary to corroborate the testimony of the prosecutrix. Section 283 of the Penal Code reads : “ No conviction can be had for abduction, compulsory marriage, rape or defilement, upon the 'testimony of the female abducted, compelled or defiled, unsupported by other evidence.”

It does not seem to me that under that section of the Code it is necessary that the prosecutrix should be corroborated upon all the material points of her testimony.

I have been referred to no case giving a construction to the section in question except the case of The People v. Plath (100 N. Y. 590), and the rule in that case has been very much modified in later decisions. (People v. Kearney, 110 N. Y. 188-194; People v. Elliott, 106 id. 288; People v. Ogle, 104 id. 511-515; People v. Everhardt, 104 id. 591; People v. Cullen, 5 N. Y. Supp. 886.)

It will bo noticed that the section in question is indefinite as to the character and extent of the supporting evidence required.

Without discussing at length the decision in The People v. Plath, it seems to me that the essential principle established by that case is contained on page 591, that: “ In one form or the other, however, proof must be given aside from that of the female, tending to establish the commission of a crime, and that it was perpetrated by the person accused, before a conviction can be lawfully had ; ” and within the spirit of that language it seems to me that a safe construction of the section would be to hold that the support or corroboration required by it should be the same that is held to be necessary for the corroboration of an accomplice under section 399 of the Code of Criminal Procedure; that section reads as follows: “ A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.”

“ Prior to this statute the rule in the State permitted the jury to convict a defendant upon the uncorroborated testimony of an accomplice (People v. Costello, 1 Den. 83), but it was the uniform custom of judges to advise the jury that the evidence of the accomplice should be received with great caution, and it rarely happened that a conviction was had upon his unsupported evidence. The rule now embodied in the statute is substantially the rule which before the statute courts were in the habit of stating to the jury for their guidance, although, as has been said, it was not enforced as a rule of law.”

“ It is plain that, independently of the statutory rule, corroborative evidence to have any value must be evidence from an independent source of some material fact tending to show not only that the crime has been committed, but that the defendant was implicated in it, and such is the doctrine of the best-considered cases. But neither the doctrine hitherto declared by the courts, nor the rule embodied in the statute, requires that the whole case should be proved outside of the testimony of the accomplice. Such a rule would render the testimony of an accomplice in most cases unnecessary, and would defeat the jiolicy of the law, which permits the use of accomplices as witnesses in aid of and in the interest of public justice.” (People v. Houghkirk, 96 N. Y. 149-162.)

It has also been held that “the law is complied with if there is some evidence fairly tending to connect the defendant with the commission of the crime charged, so that the conviction will not rest entirely upon the evidence of the accomplice.” (People v. Elliott, 106 N. Y. 288, 292; People v. Everhardt, 104 id. 591; People v. O’Sullivan, 104 id. 481.)

Under these decisions, I think a fair and prudent construction of section 283 of the Penal Code to be that there should be supporting or corroborating evidence fairly tending to prove, first, that a rape had been actually committed; and, second, evidence tending to prove that the defendant is the person who committed it; and assuming sucli to be the true construction to be placed upon the section referred to, it seems to me that in this case there was-sufficient corroborative or supporting evidence to submit the case to-the jury.

The prosecutrix is corroborated as to a i-ape having been committed upon her, by the fact that she was in such a situation with the defendant that he had an opportunity to commit the crime another witness, her grandfather, testified that she went away with the defendant in his carriage. She locates the place of the assault in a piece of woods off the public highway ; the next day the tracks of a wagon are found through such woods, entering from the side coming from her grandfather’s house and leaving it and entering on the highway again on the side going towards the defendant’s house.

The defendant is seen with a female in his carriage between the-woods and his house, about one-lialf mile from his house; the prosecutrix comes to his house in the evening in his company; when she arrived there the defendant’s sister-in-law says her hair was ruffled up, and she took down her front hair and rolled it up, and she took off her shoes and shook the dirt out of them. She looked very-down-hearted and didn’t have anything at all to say, and she kept wiping her eyes occasionally, and I thought she was crying.” She testified that when the assault was committed upon her one of the buttons upon her drawers was torn off; about eight days after the alleged commission of the offense the woods were searched, and in the locality where she located the assault a button was found.

When she arrived at her father’s house, a week after the transaction, she immediately informed her mother what had happened the next day she was examined by a physician, who found that the hymen had been ruptured; he thinks recently ruptured; cannot tell how recently, but thinks within two or three weeks.

L disclosure within proper time, it has.been said, is some corroboration. (People v. O'Sullivan, supra.)

It is true that all these things may be true, and yet she may have consented, and thus the crime not have been committed. But it is not necessary that the corroborating evidence should be such as to exclude every hypothesis except that of guilt. (People v. Ogle, 104 N. Y. 511-515; People v. Elliott, 106 id. 288-292.)

There are inferences, however, to be drawn from the evidence which bear upon the question of consent. If she had consented, she would probably not have been looking down-hearted, wiping her eyes, and presenting the appearance of crying, after she had arrived at the defendant’s house; neither would she, in all human probability, have told her mother that she had been assaulted, if she had ■consented; such a statement is conceivable, if the fact had been •discovered and she was trying to justify her conduct, to her parents; ■and it is for the reason that it is presumed that a female will not falsely testify to her own disgrace, that her statements made recently after the alleged commission of the offense are received in evidence .and are held to be corroborative.

In addition, it may be said that to require corroboration as to whether a female consents or not, would be exacting something which in most cases would be impossible of fulfillment; it is a crime which is not committed in the presence or hearing of people, so that they ■can either see or hear the struggle of the victim; her condition after-wards, it is true, may show the effects of her struggle, but she may resist and still not be able to show bruises or wounds in corroboration •of her statement.

She need not be corroborated on every material fact, “ nor need the corroborative evidence be wholly inconsistent with the theory of ■the defendant’s innocence.” (People v. Elliott, 106 N. Y. 288-292.)

It seems to me that the facts above recited, all of which are testi•fied to by witnesses other than the prosecutrix, constitute sufficient -corroboration to warrant a submission of the case to the jury.

Opportunity for the commission of the crime is a material fact; ■that is found; the recent laceration or rupture of the hymen is a material fact, and there is testimony as to that, and these alone, it ■seems to me, are sufficient to bring the case within the Code.

On the second question, as to whether there was any corroborative evidence tending to show that the defendant was the person who committed the assault, we have these facts: That the defendant .asked her grandfather to permit her to go with him to his house on ■the night in question ; that they left the house together; that the defendant was seen that evening about a mile from the woods where it is claimed the assault was committed, and on the road leading to his house; a witness testifies that the woman who was riding with him “ was sitting half way out of the wagon, and seemed ready to jump,” so that we have testimony independent of that of theprosecutrix, to the effect that on the night the assault was alleged to-have been committed, the defendant was in her company, so that he had the opportunity at least to commit the offense charged. I think that that is corroborative evidence tending to connect him with the commission of the crime, and it is material evidence.

In'the case of Lindsay v. People (63 N. Y. 113-157) the-accomplice had testified that the prisoner and himself removed the body of the murdered man at night from the place where it had been concealed during the day. The wife of the accomplice testified that her husband was absent from his house until a late hour-that night, and the court held that her testimony corroborated the accomplice in a material fact; it was a fact so material to the whole story told by the witness, that had it been proved that he was in the house during the hours mentioned his whole story would have fallen to the ground and been proved false.”

The evidence that the defendant was with the prosecutrix on the evening in question was very material, and applying to it the test of materiality suggested in the case of Lindsay v. People, if it had been proved that on the evening in question he was at home, or far-distant from the place of the alleged assault, so that it would have been impossible for him to have committed it, the whole story of' the prosecutrix would be discredited and her case destroyed.

I think, therefore, there was evidence corroborating the prosecutrix not only as to the fact that she had been assaulted, but also-corroborative evidence tending to prove that the defendant was the-person who committed that assault, and that, therefore, the judgment of conviction should be affirmed.

Putnam, J., concurred.

Mayham, P. J.

(dissenting.):

An appeal from an order denying a motion for a new trial on. newly discovered evidence, having been dismissed and the order-affirmed, we are brought to the consideration of the appeal from the judgment of conviction in this case.

The appellant insists that the evidence fails to establish the commission of the offense charged, because the circumstances attending the transaction, as sworn to by the prosecutrix, establish her consent, and that there is no corroboration of a forcible ravishing against her will, as sworn to by her. Section 2S3 of the Penal Code prescribes in definite and concise language the rule of law upon that subject as follows: “No conviction can be had for abduction, compulsory marriage, rape or defilement upon the testimony of the female abducted, compelled or defiled, unsupported by other evidence.”

The question raised upon the first point is as to the sufficiency of the evidence in corroboration of the offense charged, in support of the testimony of the prosecutrix.

The principal evidence of the offense is the testimony of the prosecutrix. She was in her seventeenth year at the time of the alleged offense. From her evidence it appeal’s that on the evening of the alleged assault she started, at the solicitation of the defendant, to ride with him in a two-wheeled vehicle from the house of her grandfather, where she was living, to the residence of defendant, a distance of about three miles. That passing along the highway he turned therefrom into a wood road leading into the woods3 and drove eighty-seven paces, and then told the prosecutrix to get out, and she did. Defendant did not inform her what he wanted her to get out for, except to turn around.

She testified that he assisted her to get out of the cart, and that .after she got out he choked her, threw her down, and that against all the resistance she was able to make he ravished her against her will.

This was clearly proof enough if corroborated as required by the provisions of the Code to constitute the offense charged. If her story is to be believed, she used all the physical power she possessed, .and her voice to cry out, in the defense of her chastity.

But, as we have seen, her evidence alone, unless corroborated by ■evidence bearing upon the crime itself, is not sufficient to convict.

The learned district attorney insists that such evidence is found in her appearance and conduct at defendant’s after she arrived there that evening.

Mrs. Upright, who was at the defendant’s when the prosecutrix came there, swears that the latter’s “ hair was ruffled, and she took down her front hair and rolled it up, and she took off her shoes and shook the dirt out of them; that she 'looked very down-hearted and didn’t have anything at all to say, and she kept wiping her eyes occasionally, and I thought she was crying. She didn’t say any-tiling much to me only when I talked to her.” The evidence shows that she stayed there all night and that she and this witness sat up with a sick lady.

It is also insisted that her statement to her father and mother about nine days after this occurrence is a corroboration, as is the wagon track leading into the wood.road, which was discovered some days after the occurrence; the finding of a button which she swears resembles the one she claims defendant tore off her drawers at the place at which she claims the offense was committed, and the testimony of the physician who examined her person about eighteen days after the alleged occurrence, that he found the parts in a healthy condition, not inflamed, no hymen present, and red about the remains of the hymen, tending to show that its rupture was recent, but by no means fixing the time of the same.

In a case of this character it is not enough to show adulterous intercourse between the prosecutrix and the accused.

The gravamen of the crime is the forcible ravishing by the defendant against the will and without the consent, expressed or implied, of the prosecutrix; and however reprehensible voluntary intercourse between a married man and this prosecutrix is, and however deserving of condemnation and execration he may be for planning and creating the opportunity for this act, unless it was committed against the will of the prosecutrix, by overcoming by force and fear, all the physical and mental power of resistance by the prosecutrix, then the crime for which he was convicted is not established ; and the burden of proving this rests with the People, for where the act complained of is capable of two constructions or interpretations, one criminal and the other not, the law will presume the latter until the former is proved.

We have said that the facts sworn to by the prosecutrix as to the actual commission of this crime, if corroborated by evidence, either direct or circumstantial, so as to establish their truth, are sufficient to convict.

But are not all of the circumstances relied upon by the prosecutrix as corroborations consistent with the innocence of the defendant of the crime of rape ?

Assuming that the tracks of the wagon leading into the wood road and returning corroborate the fact that he drove into the woods, that fact in itself is just as consistent with the idea of illicit intercourse with the consent of the prosecutrix as with the motive and design on the part of the defendant to commit a felony, by forcibly ravishing the prosecutrix, and more so when we take into account the fact that he was in near proximity to a traveled public highway,, and was within easy hearing distance of it. By her own testimony she consented by her failing to object to his driving into this, wood road, although she swears that she knew he was driving into the thicket, in a byroad and a secluded place, and on her arrival at the-point where she alleges this offense was committed she voluntarily, on his invitation, got out of the carriage. The People claim that the finding of the button supposed to have been torn or ripped off from her drawers, is evidence in corroboration of the statement that she was out of the carriage and on the ground, but that circumstance would seem slight evidence of force, and in no way inconsistent with a mutual effort to remove the obstruction which that garment furnished to a voluntary connection. The, cloth does not appear to have been torn in removing the button.

The button-hole was not torn out, but there was a tear in the drawers a short finger’s length. Prosecutrix, after the alleged occurrence, as she swears, replaced the drawers on her j>erson, placing a pin in the place of the button, and wore them to defendant’s that night and for some days thereafter in the same condition, and it is to be observed that the identity of and injuries to these drawers rest solely on the uncorroborated evidence of the prosecutrix.

I do not see how under such circumstances the condition of that garment is a corroboration of the criminal charge against the defendant. If they had been exhibited to some other person and their condition examined before they were removed from the; prosecutrix, any rents, or marks of violence or force on them might furnish some evidence in coi'roboration; but I find no evidence that any person saw them until they were presented in court. Again, her appearance at the defendant’s that night, as described by Mrs. Upright, is urged as a corroboration. “ Her hair was ruffled up, and she tqok down her front hair and rolled it up, and she took off her shoes and shook the dirt out of them.” But it will be observed that the prosecutrix does not, in her testimony, make any claim that the disordered condition of her hair, or the dirt in her shoes, was the result. of tlie alleged assault of the defendant, or of their encounter in the woods, so that this testimony furnishes no corroboration of the evidence of the prosecutrix upon that point, and her down-hearted appearance, and occasional wiping of her eyes, sworn to by this witness, might have been from a sense of injury inflicted against her will, or a consciousness of her own voluntary acts of impropriety. No reason was given by her at that time for her appearance or conduct, nor does she speak of it in her testimony. Under such unexplained circumstances this testimony furnishes no corroboration of the prosecutrix’s charge of rape.

It is also claimed by the learned district attorney that the statement of the prosecutrix to her father and mother of this offense, several days after the alleged occurrence, is a corroboration. If this evidence was competent, which we doubt, still after such a lapse of time after the happening of the alleged event, we think it falls far short of a corroboration of the prosecutrix’s testimony as to the commission of this crime.

The theory upon which the declarations of the injured party are received as evidence is that they were made so nearly contemporaneously with the injury that the person making them is deemed to be smarting under the immediate consequences of the wrong and has not had time to manufacture a story, but acts solely upon impressions and impulses born of the injury.

It can hardly be successfully maintained that declarations of the party, charging the injury, seven days after it occurred, and not made in extremis, can be treated as evidence in corroboration of the evidence of the prosecutrix of the principal offense. The only remaining evidence to be considered upon this point is that of the doctor. He made an examination of the complainant the ninth or tenth or sixteenth of October after the alleged occurrence. He formed an opinion from that examination and an examination made by him on the twentieth of October that the hymen had been ruptured recently, and while he cannot state the exact time he puts it positively within two months. Does this evidence amount to a corroboration that she was forcibly ravished on the 2d of October, 1892? We think not. The same conditions would have been present if she had submitted to voluntary. intercourse. There was no inflammation of tlie parts, and no evidence of excessive violence disclosed by his examination.

On the whole evidence on the part of the prosecution we find nothing that corroborates the testimony of the prosecutrix that she was forcibly ravished at the time alleged.

Such evidence was indispensable, as we have seen, from the provisions of the Code, to a conviction of the defendant in this case. Upon this point we have not considered the evidence offered by the defense in opposition to this charge, for the reason that if a prima facie case had been made out by the prosecution the conflict raised by the evidence of the defense would have presented a question of fact which would be solely for the jury, with whose verdict, on such conflict, this court would not interfere on appeal.

In The People v. Plath (100 N. Y. 592) the Court of Appeals laid down the rule which must govern in the construction of section 2S3 of the Penal Code. In that case Ruger, Ch. J., says : “ In eases where corroboration is required there has been some diversity of opinion in the authorities as to the particular facts which should be corroborated, and the extent of the corroboration needed izi order to comply with the rule; but it is now conceded to be the general rule that it should tend to show the material facts necessary to establish the commission of a crime and the identity of the person committing it.”

Tested by this z*ule, we fail to see that the prosecutrix is corroborated by any evidence tending to prove that she was forcibly ravished by the defendant.

Without that evidence, standing upon her testimony alone, however positive the same may be, the law does not allow a conviction of either of the grave and heinous offenses mentioned in sectiozi 283 of the Penal Code.

If we are right in our conclusion, this conviction, for the reason, above stated, must be reversed, and no examination of the other exceptions taken by the appellant need be considered.

The conviction znust be revei’sed and a new trial ordered befoi’e the Ulster Couzrty Sessions under the provisions of section 527 of the Code of Crimizial Procedure.

Judgment of conviction affirmed.


text:
    The People of the State of New York, Respondent, v. Seth Olmsted, Appellant.

      Sufficiency of a cj'iminal information — selling liquor without a license — Oourt oj Special Sessions.

    An information filed with a justice of the peace, as the basis of a criminal proceeding in a Court of Special Sessions, should state the crime charged with such accuracy that the defendant may know the exact offense which it is claimed that he has committed.
    An information, filed with a justice of the peace, charged that the defendant “ on various occasions of 1890 and '91, at Mongaup Yalley, in the town of Bethel, county of Sullivan, 3ST. Y , at different times did commit the crime of selling strong and spirituous liquors ” to certain persons named, who were examined on oath, by the justice, and each swore that he had purchased lager beer of the defendant and drunk it on his premises, upon which testimony a warrant was issued charging the sale of strong and intoxicating- liquors without a license.

      Meld, that the papers were defective and would not support a conviction in the Court of Special Sessions, for the reason that the information did not charge any specific crime, and the crime attempted to he set forth was defectively alleged as to time,-
    That the defendant must he tried upon the information and not upon the warrant;
    That an information should allege the facts constituting the crime and the time when it was committed. (Mayham, P J., dissenting.)
    'Appeal by the defendant, Setli Olmsted, from a judgment of conviction v< for tlie crime of selling strong and intoxicating liquors,” rendered against liim in a Oourt of Special Sessions, held in the town of Bethel, Sullivan county, on the 28th day of February, 1891, and-affirmed by the Court of Sessions of Sullivan county on the 17th day of June, 1891.

      Charles H. Stage, for the appellant.

      Melvin H. Couch, District Attorney, for the respondent.
   Herrick, J.:

It seems to me that the conviction in this case should be reversed, for the reason that the complaint or information upon which the defendant was tried did not sufficiently state the crime charged against him.

While proceedings before inferior courts are to be liberally construed, and informations lodged before committing magistrates are not expected to be drawn with the technical accuracy that an indictment should be (Hewitt v. Newburger, 48 N. Y. St. Repr. 811), yet such informations, taking the place as they do of indictments in superior courts, should state with sufficient accuracy the crime charged, that the defendant may know the exact offense which it is claimed he has committed, so that he may properly prepare his defense, and also in order that after he has been tried upon the charge he may plead it in bar upon any subsequent charge against him for the same offense.

The information in this case does not specify the crime charged with sufficient accuracy to comply with the requirements suggested ; it does not apprise the defendant of the exact charge against him, and the charge is so indefinitely made that it does not seem to me that it would be available as a plea in bar to a subsequent charge made against him for the same offense.

The information is that the defendant, “ On various occasions of 1890 and ’91, at Mongaup Talley, in the town of Bethel, county of .Sullivan, N. Y., at different times did commit the crime of selling strong and spirituous liquors to Andrew R. Ramsey, Thomas Casey, Edgar Peck and others.”

When a person is charged with doing an act which may or may not be a crime, -and the circumstances or facts which render the act criminal are not set forth, it seems to me that no crime is charged.

Selling strong and spirituous liquors may or may not be a crime; if it is sold without a license that is a crime; if sold with a license it may or may not be a crime ; if sold to a minor, to Indians, on Sunday, or within prohibited hours on secular days, it is a crime, although the person selling has a license.

None of these offenses are set forth in this information, yet if it is held good any one of these charges could be proved upon the trial.

What particular violation of the Excise Law in regard to the sale of liquors is the defendant notified to defend himself against by this information; against what particular charge can he plead it in bar after he has been tried upon it %

It is true that in this case the warrant states the sale to have been without a license, but the defendant is not tried upon the warrant, but upon tlie information; tlie warrant lias fulfilled its office when it has brought the defendant into courtthat is its only function.

So, also, the allegation as to time is defective. While time is not an ingredient of the crime of unlawfully selling liquors, except as to prohibited days and hours, and when alleged need not perhaps be proved exactly as alleged, yet the time of the commission of the offense should be alleged for the purpose of apprising the defendant when it is claimed he committed such crime (People v. Stocking, 50 Barb. 573), in order that he may prepare his defense, and also that he may use it, as before suggested, as a plea in bar. Stating the offense to have been committed during two years, as in this case, is not fixing any time at all; it seems to me that both time and place, when and where his crime is alleged to have been committed, should be set forth in the information; that justice to the person charged so requires; and the information not complying with that, it is insufficient.

I conclude, therefore, that the information is defective in that it does not charge any specific crime, and that the crime attempted to be set forth is defectively alleged as to time, and that the defendant should not have been placed upon trial upon it, and that his conviction thereupon should be reversed.

Putnam, J., concurred.

Mayham, P. J.

(dissenting):

Appeal from a judgment of the Court1 of Sessions of Sullivan county, affirming a conviction by a Court of Special Sessions in the town of Bethel in that county.

The return shows that preliminary to the issuing of the warrant upon which the defendant was convicted, an information, in writing, and on oath by two complainants, was filed with the justice containing the following charges:

That one Seth Olmsted, on various occasions of 1890 and ’91, at Mongaup Yalley, in the town of Bethel, county of Sullivan, N. Y., at different times did commit the crime of selling strong and spirituous liquors to Andrew R. Ramsey, Thomas Casey, Edgar Peck and others.”

That pursuant to such information, the justice of the peace with whom tlie same was filed took the examination on oath of each of the persons to whom it was in the information charged that the defendant had sold liquor, who each severally swore that he had, purchased lager beer of the defendant at his house in the town of Bethel, and had paid him for the same, and had drunk it upon his premises, without specifying the precise time of such purchase, two of whom fixed the time in 1890, and one in January, 1891.

Upon this information and proof the justice issued 1ns warrant, under which the defendant Aas arrested and brought before such justice. The warrant contained the following language: “ Information upon oath having this day been laid before me that the crime of selling strong and intoxicating liquors at his residence in the town of Bethel, Co. and State aforesaid, on various occasions, in the year of 1890 and 1891, without a license for selling the same, has been committed, and accusing Seth Olmsted thereof.”

On the return of the warrant the defendant made various objections, as follows:

' First. That the facts set forth in the complaint herein do not constitute crime.

Second. That the facts set forth in the complaint are' not sufficient to give the court jurisdiction.

Third. That the warrant was issued without legal proof as required by the Code.

Fourth. This charged partiality in the magistrate.

Fifth. That the defendant was illegally arrested.

All of these objections were overruled by the justice.

The case was tried by a jury and objection is made that the jury was illegally organized.

The venire purports to have directed the constable to summon the persons named on the back thereof to make a jury for the trial of the defendant, charged with selling intoxicating liquors without a license. The names or number of jurors so directed to be summoned do not appear in the retain, except inferentially by the certificate of the constable, by which it appears that he served ten persons named therein personally, and two by leaving copies at their residences. A second venire was issued on request of the People. This contained a general direction to summon ten good and lawful men to serve as jurors, not exempt by law from such service, and not of kin to the complainants or defendant.

This was returned by the constable, with a certificate made by him, that he had served the same on ten persons whose names were embraced in the return. The return fails to show that the jury returned on this second venire was challenged by the defendant either to the array or poll.

The defendant requested the court to compel the People to specify upon what charge or alleged offense the defendant was to be placed on trial, which request was denied and the defendant excepted. So far as information and proof preliminary to the issuing of the warrant was concerned, we think the proceedings a substantial compliance with chapters 1 and 2 of title 3 of the Code of Criminal Procedure.

It is quite true that it does not appear from the information or examination tliat> the defendant at the time of selling this lager had no license or that the lager was intoxicating liquor.

But the warrant charges the sale without a license, and we think the information and examination was sufficient to confer jurisdiction upon the justice to issue the warrant.

The case is not similar to that of People v. Gregg (59 Hun, 107) or People v. Newark (5 N. Y. Supp. 239), cited by the appellant. In the latter case the justice on the receipt of the information did not, before issuing the warrant, examine on oath the informant or witnesses, but seemed to rely upon an affidavit taken before a notary public, and another affidavit not prepared by the justice was not a substantial compliance with the provisions of section 148 of the Code of Criminal Procedure and not sufficient to confer jurisdiction upon the justice. The irregularity in the proceedings of the justice in procuring a jury, would, I think, have been fatal to this conviction had proper challenges been interposed either to the array or poll of such jury.

But the return discloses the manner in which a jury was obtained without objection, except the objection to the issuing of the second venire, which objection was disregarded by the justice. But it docs not appear that the jurors returned on that venire were challenged or objected to, and no objection was raised or appears to have been made to their serving as jurors in the ’case.

The Code of Criminal Procedure provides that the defendant has the same number of challenges in a Court of Special Sessions as are allowed on the trial of an indictment for a misdemeanor (Code, § 707), and section 363 provides that a challenge to the panel must be taken before the jurors are sworn, and must be in writing, specifying the facts constituting the ground of challenge. This appears to have been entirely omitted by the defendant.

It would seem, therefore, that the irregularities in obtaining this jury were waived by the defendant, and he cannot avail himself of them on this appeal. In Pierson v. The People (79 N. Y. 129) it was held that the prisoner on trial under an indictment for murder could waive any irregularity in procuring the jury, and that he might even waive a constitutional right, and in the absence of an objection and exception he is deemed to have waived such an irregularity.

But it seems that a mere irregularity in procuring a jury, or in the organization of a jury, is not ground for the reversal of a conviction unless it appears that the defendant was prejudiced by the same.

In Cox v. The People (80 N. Y. 511) the court says : “ It is well settled that mere irregularities in the drawing of grand and petit jurors is not a ground for reversing a conviction unless it appears that they operated to the prejudice of the prisoner.”

The evidence in this ease fully sustains the charges in the information, examination and warrant, of the sale by the defendant, without a license, of lager beer, which was, by the evidence, shown to be intoxicating liquor, and, therefore, fully justified the verdict and judgment.

Judgment of the Court of Sessions and of the Special Sessions must be affirmed.

Judgment of conviction reversed.


author: Putnam, J.:

text:
    H. Cooley Green, Respondent, v. Daniel C. Easton, Appellant.

      Manufacturing corporation — failure to file an annual report —liability of a trustee — claim for a breach of contract of employment — “debt,” defined, — judgment against the corporation.

    An unliquidated claim, arising'out of a, breach of a contract of emplojnaent, due at the time of the failure of a manufacturing corporation to file the annual report prescribed by section 12 of the act of 1848.(Chap. 40), is a debt within the meaning of that section, which imposes a personal liability upon the trustees for all the “ debts” of a corporation which fails to file an annual report.
    It is not necessary to obtain a judgment against the company on such a claim before proceeding against a trustee.
    If a judgment is obtained against the company on such a claim, a recovery cannot be'liad against a trustee for the costs included in such judgment.
    If after obtaining, on issue joined, a judgment against a corporation on a claim arising out of a breach of a contract for employment, the plaintiff brings an action against a trustee to enforce the personal liability for such claim arising out of the failure of the company to file an annual report, his recovery of damages against the trustee will be limited to the amount of damages for which he recovered judgment against the company.
    Appeal by tbe defendant, Daniel O. Easton, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in the office of tbe clerk of Washington county on tbe 28th day of November, 1892, upon a decision of tbe court rendered after a trial by tbe court without a jury at tbe Washington Circuit.

      Potter & Lillie, for tbe appellant.

      O. F. & R. R. Davis, for the respondent.
   Putnam, J.:

Plaintiff brought this action against defendant *as a trustee of tbe Putnam Creamery Association, a corporation formed under chapter 40 of tbe Laws of 1848, and acts amendatory thereof, to recover the penalty imposed by section 12 of said act for the failure of said corporation to file tbe report required by tbe said section.

Plaintiff alleges that in tbe spring of 1890 tbe said corporation employed him to work for the ensuing season at fifty dollars per month, and that after giving him employment until August first, neglected thereafter to continue said employment for the balance of the season, that is until about November first. Plaintiff claims to recover damages resulting from such breach of contract by the company. That afterwards oh or about January 1, 1891, plaintiff commenced an action against defendant on account of said breach of contract, and obtained judgment on October 6,1891, for $100, damages, and eighty-one dollars and fifty cents, costs.

The plaintiff further alleges that the Putnam Creamery Association did not, within twenty days from January 1, 1891, or of any year from the time of the incorporation of said company, make or file the report required by section 12 (supra).

The case was tried at Special Term, and plaintiff obtained judgment for $150 damages, with costs.

It is urged by defendant that the claim for damages set out in the complaint is not a debt within the meaning of section 12 of chapter 40 of the Laws of 1848. That such claim for damages constitutes a liability, but not a debt. While it is true that a claim for damages arising from a tortious act cannot be deemed a debt (Esmond v. Bulla/rd, 16 Ilun, 65), we are of opinion that an unliquidated claim, arising out of a breach of contract of employment, is a debt within the meaning of section 12 of the Manufacturing Act. At the time the corporation failed to file the annual report some sum was due plaintiff by reason of the failure of the company to fulfill its contract of employment. The amount was unliquidated, but was in fact due. We think that under the act there may be a debt unliquidated as to the amount. At the time in question the corporation owed plaintiff, on account of said failure to perform its contract, an unliquidated sum; in other words, was indebted to him. This indebtedness can be properly deemed a debt within the meaning of section 12 (supra). (See N. J. Ins. Co. v. Meeker, 37 N. J. L. 300, 301; Frazer et al. v. Tunis et al., 1 Bin. 254-262; Mill Dam Foundery v. Hovey, 21 Pick. 417, 454, 455.)

We have examined the cases cited by appellant, and think that none of them conflict with the views above stated.

The construction of the statute above given is the only reasonable one. No good reason is apparent why an action should be maintained against a trustee of a corporation for failure to file its annual report by a creditor having a liquidated obligation in preference to one having an unliquidated claim.

We think, however, that the recovery should have been limited to-$100 damages. The complaint sets out the fact that au action was commenced against the corporation to recover for the claim in suit, and that issue having been joined therein he recovered $100, damages, and eighty-one dollars and fifty cents, costs. The plaintiff apparently intended to set up a cause of action for the amount so recovered — the damages and costs. It is settled that a recovery cannot be had against the defendant for costs of an action against a corporation. (Rorke et al. v. Thomas et al., 56 N. Y. 559, 565.)

It was not necessary for the plaintiff to obtain a judgment against the company before proceeding against the trustee. (Miller v. White, 50 N. Y. 138.) The complaint alleges a claim for damages against the corporation which had been liquidated by the judgment at $100 as the claim in suit upon which, together with the costs, the plaintiff claimed judgment. As we have seen, he cannot recover judgment against the defendant for the said costs. His claim, therefore, should be limited to the amount of the damages which he sets out in his complaint was recovered against the corporation. The admission by the defendant on the trial, that plaintiff’s damages for the breach of contract alleged was $150, is of no avail while the complaint remained unamended. Defendant, while admitting the fact that plaintiff’s damages were $150, objected to the evidence as irrelevant and not within the issue.

It. follows, therefore, that under a complaint which in fact alleges $100 damages the plaintiff could not properly recover $150 without an amendment of the complaint.

Were the pleading otherwise, however, we are of opinion that plaintiff, having brought an action against the corporation to recover his claim, and issue having been made therein and he recovering-only $100, afterwards bringing an action against a trustee for a failure of the corporation to file the annual report, can only recover judgment against the trustee for the amount for which he recovered judgment against the corporation. The judgment against the company should be deemed binding on the plaintiff. It liquidates his claim.

The judgment appealed from should be modified by reducing the amount fifty dollars. If the plaintiff, within ten days after the order herein shall be served upon him, stipulates to such reduction, the judgment shall be accordingly modified, and, as modified, affirmed, without costs to either party. Should the plaintiff fail to file such .stipulation, judgment is reversed and a new trial granted, with costs to abide the event.

Mayham, P. J., and Herrick, J., concurred.

Judgment modified by deducting fifty dollars, if plaintiff so stipulates within ten'days, then judgment, as so modified, affirmed, without costs to either party; if plaintiff does not so stipulate, then judgment reversed and a new trial granted, with costs to abide the event.


author: Herrick, J.:

text:
    Ella I. Pollock, Respondent, v. Abram D. Van Camp, Appellant.

      Evidence — knowledge of the insolvency of a firm — fraudulent sale.

    The evidence which will authorize a referee to hold that a person had knowledge of the insolvency of a firm, and that a certain sale of property to such person tended and operated to hinder and delay creditors, considered and commented upon.
    Appeal by the defendant, Abram D. Van Gamp, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery oii the 12th day of August, 1892, upon the report of a referee.

      F. L. Wager and Sayles, Searle & Sayles, for the appellant.
    H. M. Eldredge and Westbrook & Borst, for the respondent.
   Herrick, J.:

This is an appeal from a judgment upon the report of a referee in favor of the plaintiff and against the defendant. The plaintiff is the wife of Irving Pollock, and the mother of Fred L. Pollock, wh® were carrying on business under the firm name of I. Pollock & Son, at Fort Plain, Montgomery county. The plaintiff, who claims to have loaned I. Pollock & Son money to the amount of nearly $2,000, took from them on the 21st of June, 1890, a bill of sale of all the personal property of said firm, as security, as she claimed, for the amount owing to her, and at the same time she agreed and assumed to pay some, but not all, of tlie other debts of said firm of I. Pollock & Son. The firm of A. Ethridge & Co., of Nome, N. Y., dealers in groceries, commenced selling goods to the firm of I. Pollock & Son in April, 1890; the last bill of goods sold to them was on June 19,1890. Pollock & Son never paid Ethridge & Co. for any of the goods purchased of them, and on the 26th of July, 1890, Ethridge & Co. commenced an action in the Supreme Court upon their claim, and procured an attachment to be issued against the property of I. Pollock & Son. The attachment was placed in the hands of the defendant Van Camp, who was a deputy sheriff of Montgomery county, who executed the warrant of attachment, and took into his possession the property, the sale of which gave rise to this action. Pollock & Son made no defense to the action brought against them by Ethridge & Co., and judgment was obtained therein by default, and execution issued thereon, and the property which had been previously attached by the defendant was- sold by him as deputy sheriff under said execution.

Thereafter, the plaintiff commenced this action against the defendant, alleging that on July 26, 1890, she was the owner and in possession of the property, and that the defendant wrongfully converted the same; she claims ownership under the bill of sale before referred to. The defendant, for his defense, asserted that as deputy sheriff he took the property by virtue of the attachment and execution before referred to, and that the said Irving Pollock and Ered L. Pollock, and not the plaintiff, were the owners and in possession of the property taken, and that the title claimed by the plaintiff, and the alleged transfer to her, was a fraud upon the creditors of I. Pollock & Son, and void.

A great deal of evidence was taken upon the trial as to the alleged indebtedness of the firm of I. Pollock & Son to the plaintiff, and as to whetlier there was in fact any change in the possession of the property, and as to the financial condition of the firm at the time of such transfer.

It will be seen that'it is material and important to determine whether tlie firm of I. Pollock & Son was insolvent at the time of such transfer, and if it was insolvent, whether the plaintiff knew it or had reason to believe it, and whether the transfer was for the purpose of hindering or delaying creditors of the firm.

The referee was requested by the defendant to find that at the time said alleged sale was made, that said Fred L. Pollock and Irving Pollock were insolvent and unable to pay their debts, and said Ella I. Pollock knew of said insolvency and of the said pecuniary condition of said FredL. Pollock and Irving Pollockthe referee refused ,so to find, to which refusal the defendant excepted ; this, I think, was error; that they were, in fact, insolvent is not disputed; it is not a controverted question in the case; neither is it controverted, so far as the evidence shows, but that both Fred L. Pollock and Irving Pollock knew that they were unable to pay their debts, and the evidence of the plaintiff, I think, conclusively establishes that she also knew of such insolvency.

In her testimony she states that in talking with her husband about securing her for the money that she claims to have advanced, • she said at different times that she thought the goods would not secure her. At the time the bill of sale was handed to her she states : “ He handed it to me to secure me; I know it would not pay me; I said the goods in the store would not pay me.”

When she went to the store to look over the goods she says she saw there were. not goods enough to secure her. Her son testifies that she asked him if he thought there were goods enough to pay her, and that he told her he thought there were about enough just to pay her claim, if they were sold at regular profit.

In addition to swearing that she did not think there was enough property to secure her, she testifies that she knew that there were other debts ; debts in addition to those she assumed to pay; in short, her testimony all through shows her belief that the business of the firm was in such a condition that it was necessary that something should be done to secure her, and also her belief that there was not •a sufficient amount of property to pay the full amount of her claim. 'While it may be. true that she did not know either the actual amount of their indebtedness nor the actual value of the property that they had, yet she believed that it was inadequate to pay her and to pay the other claims; and for the purpose of testing the validity of a transfer of property under such circumstances, belief on the part of the person receiving the property, that the grantors have not a sufficient amount to pay their debts, is equivalent to actual knowledge of that fact. Again, the referee refused to find, at the defendant’s request, “ That at the time of said sale this plaintiff knew that said sale and transaction tended and operated to hinder and delay the Ethridges and the creditors of said Fred L. Pollock and Irving Pollock in the collection of tlieir debts; ” which refusal to find was excepted to by the defendant. I think this refusal to. find was error on the part of the referee; it was a fact that was material and important in the case.

As I have before stated, the plaintiff knew that the firm was indebted to others beside herself; she believed that the property was insufficient to pay her claim; she had been informed by her son, one of the firm, that There would be about enough to pay just her claim, if they were sold out at regular profit.” She testified that she did not know of any property of the firm that she did not take, and she also testifies that she did not know of any way that the creditors were to get their pay. It must be presumed that she was possessed of ordinary intelligence, and knowing that the firm was indebted to various people beside herself, and knowing that she was taking possession of all the firm property, it is difficult to conceive that she did not know that her act in taking such property would hinder and delay the creditors in the collection of their debts; she must be presumed to' have known and intended that Avhich would be the natural result of her acts. Upon this question there is no conflict of evidence; the only question is, what conclusion of fact is to be drawn from the plaintiff’s own testimony ; I can see but one. Without discussing the other questions in the case, I think, for the errors committed by the referee in his refusals to find the requests herein referred to, the same neither in form nor substance having been otherwise found by him, that the judgment should be reversed, the referee discharged and a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concurred in the result.

Judgment reversed, referee discharged, new trial granted, costs to abide the event.


author: Herrick, J. :

text:
    The People of the State of New York, Respondent, v. James A. McPherson, Appellant.

      Criminal cases — ■ the magistrate cannot he changed during the trial thereof.

    A criminal case cannot be partly tried before one magistrate and partly before another; when the trial is once commenced it must proceed to the end before the same court and jury.
    Appeal by the defendant, James A. McPherson, from a judgment of the Court of Sessions, held in and for the county of Rensselaer, rendered on the 20th day of April, 1893, affirming a judgment of an assistant police magistrate of the city of Troy, rendered on the 11th day of February, 1893, convicting the defendant of the crime of petit larceny.

      Henry A. King, for the appellant.

      John P. Kelly, District Attorney, and Thomas S. Fagan, for the respondent.
   Herrick, J. :

This is an appeal by the defendant from a judgment of the Court of Sessions of Rensselaer county, affirming a judgment rendered by Cornelius Hannan, amassistant police magistrate of the city of Troy, Rensselaer county, convicting the defendant of the crime of petit larceny and imposing a fine of twenty-five dollars. The defendant was arrested upon a warrant issued by William Donohue, a police magistrate of the city of Troy. The prisoner was arraigned, and demanded a trial by jury, on the 9th day of February, 1893. The trial was commenced before the said William Donohue, as police magistrate, and five jurors were drawn, and the defendant, by his counsel, then and there agreed, in open court, that the case might be tried with five jurors so drawn.

The case was thereupon opened upon the part of the People, and at the conclusion of such opening the counsel for the defendant moved for the discharge of the prisoner upon the ground that the facts stated in the opening of counsel for the People would not warrant a conviction of the defendant for the crime charged; this motion was denied, whereupon the court was adjourned until the next day, February tenth.

On February tenth Assistant Police Magistrate Hannan presided, and at that time the defendant stated by counsel that he waived the right of trial by jury on the ground that there were not a sufficient number of jurors drawn to try him, and then announced by liis. counsel that counsel had no right to make any stipulation in a criminal action for the defendant or on his behalf.

The waiver of the trial by jury by the defendant was denied and the trial proceeded before Justice Hannan and the jury of five theretofore drawn, and resulted in the conviction of the defendant. A number of questions are raised upon this appeal by the defendant, both upon the evidence, the rulings of the court, and upon the absence of any information upon which the warrant was alleged to have been issued. I do not think it is necessary to discuss any of them.

The trial of the case was commenced before one justice and con* eluded before another.

The selecting of the jury, the opening of the case upon the part of the People, and the motion to dismiss made on the behalf of the. defendant at the conclusion of such opening, were very important, parts of the trial, just as much so as any of the subsequent proceedings:. The proposition that a criminal case cannot be partly tried before one-magistrate and partly before another seems to me too clear to need, argument or citation of authority to sustain it. When the trial of a case is once commenced it must proceed to the end before the; same court and jury.

Judgment of conviction should be reversed, and the defendant-discharged. Let an order be entered accordingly.

Mayham, P. J., and Putnam, J., concurred.

Judgment of conviction reversed.


text:
    Jennie Hochstrasser, Appellant, v. George B. Martin and Another, Respondents.

      JL private nuisance defined— action torestrain its continuance — proof of the injury to the plaintiff thereby.

    A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another.
    It is material upon the trial of an action brought to restrain the continuance of an alleged nuisance, in determining the question whether the thing complained of is or is not a nuisance, for the jury to determine whether the plaintiff has in fact been hurt or injured thereby.
    Appeal by the plaintiff, Jennie Hochstrasser, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 26th day of October, 1892, upon the verdict of a jury rendered after a trial at the Saratoga Circuit, and also from an order denying the plaintiff’s .motion for a new trial made upon the minutes.
    The relief demanded in the complaint was that the defendants be restrained and enjoined from continuing the alleged nuisance, and that the plaintiff recover of the defendants her damages to the amount of $500.

      E. F. Bullard, for the appellant.

      John Foley, for the respondents.
   Herrick, J.:

Substantially the only question raised upon this appeal is upon the refusal of the judge to charge “ that the condition of plaintiff’s henery and privy are wholly immaterial in this case, except so far as they would reduce the rental value of the premises without the nuisance in question,” and his charge I shall refuse to charge in that regard and leave it to you, the jury, to consider as a cir■cumstance of the locality, and to say whether it was a locality where a nuisance would be created by running a stable.”

“ A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another.” (Heeg v. Licht, 80 N. Y. 579-582.)

It is a material circumstance, therefore, in determining the ques-±ion whether the thing is or is not a nuisance, for the jury to determine whether the plaintiff has been in fact hurt or injured, and it needs no argument, it seems to me, to show that the condition of the plaintiff’s property, how it is used and occupied, the character, kind and description of the property, whether the property was of that character or so used, that it could be, or was injured by the act complained of, are all circumstances to be taken into consideration by the jury in determining the question whether or not the plaintiff has been in fact injured or hurt, whether in truth the act complained of is a nuisance; consequently the locality, the character of the locality, the business there carried on, the liability to injury or damage to the people and property located and residing there, are material elements in determining whether a business is or is not a nuisance, (Heeg v. Licht, supra.)

It seems to me, therefore, that the court was correct in its charge, and its refusal to charge, and that the judgment should be affirmed.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


author: Putnam, J. :

text:
    James H. Swart, Appellant, v. Charles Rickard, Respondent.

      Warrant for arrest for burglary — insufficiency of the affidavit — action for false imprisonment — direct proceeding to set aside the warra/nt.

    James H. Swart was arrested and imprisoned on a warrant issued by a justice of the peace. Tie affidavit on which the warrant was issued stated that the store of one Bickard, the deponent, was, on a certain date, entered and goods taken therefrom, that deponent believed and had reason to believe that such store was broken into and burglarized by James H. Swart and others, from the fact that such parties were, about that time, i. e., after one o'clock that night, prowling around and near the premises.
    In an action brought by Swart to recover damages for false imprisonment and malicious prosecution,

      Held, that the affidavit was insufficient to justify the issuing of the warrant;
    That it sufficiently showed the commission of a crime, but it failed to allege any fact showing the guilt of the plaintiff.
    In an action brought for false imprisonment and malicious prosecution, the sole evidence as to the plaintiff’s guilt of the crime of burglary, for which he' had been imprisoned, was such affidavit.

      Held, that it was error for the trial judge to hold that the plaintiff was not entitled to recover for the alleged false imprisonment, and to withdraw the issue raised by the pleadings as to that cause of action from the jury.
    When there is proof, although slight and insufficient, legally tending to establish the essential facts of the commission of a crime by a person, and a magistrate erroneously issues a warrant, such process can only be avoided by a direct proceeding to set it aside.
    (Herrick, J., dissenting.)
    Appeal by the plaintiff, James H. Swart, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 21th day of January* 1893, upon the verdict of a jury rendered after a trial at the Montgomery Circuit, and also from an order denying a motion for a new trial made upon the minutes.

      L. F. Fish and R. B. Fish, for the appellant.

      Z. S. Westbrook, for the respondent.
   Putnam, J. :

The complaint contains a count for false imprisonment and also one for malicious prosecution. On the tidal the judge submitted to the jury the issue raised by the pleadings as to malicious prosecution, but held that the plaintiff was not entitled to recover for the alleged false imprisonment, and withdrew the issues raised by the pleadings in that regard from the jury. The plaintiff excepted to this ruling of the trial judge, and that exception raises the only question in this case.

On the complaint of the defendant, plaintiff was arrested and imprisoned on a warrant issued by one Rulison, a justice of the peace of Fultonville, Montgomery county. The following is the affidavit on which the warrant was issued;

“ Montgomery County, ss. :
“ Charles Rickard of said county, being duly sworn, says that on the night of October 24, 1891, at the village of Fultonville, town of Glen, said county, his store was burglarized by breaking the large glass in the front door, and entered and goods taken therefrom, to wit: Two or more revolvers and a quantity of cigars, and deponent believes and has reason to believe that store was broken into and burglarized by James H. Swart and "Wallace Van Evera and another, from tlie fact that said parties were about that time (i. e.), after one o’clock that night, prowling around and near the premises.
“ Wherefore, deponent prays that process issue to arrest the said offenders.
“CHARLES RICKARD.
“ Sworn before me this ) 21st day of Nov., 1891. i
“ II. II. Rulison, J. PP

It is urged by the appellant that this affidavit was insufficient to .give the justice jurisdiction of the person of the plaintiff, and that hence defendant, who caused his arrest under the warrant, was liable in an action for false imprisonment.

We think the affidavit was insufficient to justify the issuing of the warrant. It sufficiently shows the commission of a crime, but fails to allege any fact showing the guilt of the plaintiff and Van Evera. The allegation that defendant believed, and had reason to believe, that his store was burglarized by said parties does not establish or tend to establish the charge. The reason stated by defendant for his belief, that said parties Avere about the time proAvling around and near said premises, is hot a statement of any fact indicating their guilt. At the most the affidavit shows on the part of ■defendant a suspicion, and perhaps grounds for such suspicion, of the plaintiff. The case is not unlike that of Blodgett v. Race (18 Hun, 132). In that case Justice Bookes says (page 133): “But before a Avarrant can laAvfully issue for the arrest of the offender the magistrate must have some evidence of his guilt. Eacts and circumstances, stated on information and belief only, without giving any sufficient grounds on Avliich to base the belief, are insufficient to confer jurisdiction as to the person. The magistrate must have evidence of probable cause, both as to the commission of the offense and the guilt of the offender, before he can have jurisdiction to cause the arrest.”

To the same effect are People ex rel. Kingsley v. Pratt (22 Hun, 300-303); Loomis v. Render (41 id. 268); Devoe v. Davis (12 Wklv. Dig. 544); Comfort v. Fulton (39 Barb. 56); Miller v. Brinkerhoff (4 Den. 118); Vredenburgh v. Hendricks (17 Barb. 179).

In each of the above cases, as in the case under consideration, no facts are stated in the affidavit on Avliich a warrant was issued showing the guilt of the party accused, and hence the magistrate did not. acquire jurisdiction of his person.

It must be remembered that when there is proof, though slight and insufficient, legally tending to establish all the essential facts, and the magistrate erroneously issues a warrant, such process can only be avoided by a direct proceeding to set it aside. (Miller v. Brinkerhoff supra.) The cases cited and relied upon by defendant were those where there was some evidence given before the committing magistrate tending to support the charges made, and the magistrate erred in issuing a warrant on the fact or on the law. They were not cases like this where, in fact, there was no evidence given to sustain the warrant. (See Hewitt v. Newburger, 66 Hun, 230; Pratt v. Bogardus, 49 Barb. 89; Lewis v. Rose, 6 Lans. 206, and other cases referred to by respondent.)

The case of Von Latham v. Libby and Another (38 Barb. 339) was where the defendants appeared before a magistrate and made a complaint, stating the facts truly, which the magistrate erroneously held to constitute a crime and issued a warrant. Facts were stated in the case for the consideration of the magistrate and he erred in holding that they constituted a crime. (See Miller v. Adams, 52 N. Y. 413.)

We conclude that the plaintiff was entitled to go to the jury on the issues raised in the pleadings as to the false imprisonment, and hence that the exception of plaintiff was well taken. It follows that the judgment should be reversed and a new trial granted, costs to abide the event.

Matham, P. J., concurred; Herrick, J"., dissented.

Judgment reversed, new trial granted, costs to abide event. The decision is made on questions of law only which appear and are specified in opinion.


text:
    William A. Chrigstrom, as Trustee, etc., Respondent, v. George McGregor, Appellant.

      A school district is a quasi corporation — action for a school tax — -a union free school is a corporation proper — when a collector is not excused for a failure to sell property for a tax,

    A school district is a quasi corporation with special powers conferred hy statute, not generally possessed hy such corporations It can exercise no powers-beyond those conferred by statute or which by necessary inference arise, therefrom.
    ■Where a person resides in a school district and has sufficient personal property therein to satisfy a school district tax assessed against him, there is no statutory provision -which will sustain an action against him to collect such tax upon his refusal or neglect to pay the same.
    Section 86 of chapter 555 of t-lie Laws of .1864, as amended, authorizes an action to collect a tax against a non-resident of a school district, or in case the property assessed be the real estate of a corporation and no goods or chattels can be found whereon to levy the tax ; but impliedly forbids an action brought to collect a tax against a resident of the school district, having sufficient personal property therein to satisfy a school district tax assessed against him.
    Section 1936 of the Code of Civil Procedure does not create new causes of action, but confers upon a trustee the right to maintain in his own name an action upon existing causes of action in favor of the body represented by him, or of his predecessor, or on a contract made by him.
    A union free school, being a corporation proper, can maintain an action upon any liability, express or implied, under the general powers conferred on corporations.
    The fact that a person forbade the sale of his property, which had been levied ■ upon by a collector of taxes for the purpose of realizing enough to pay the tax assessed against such person for school purposes, is not a sufficient excuse for the collector’s neglecting to perform his duty in selling such property and collecting such tax.
    Appeal by tbe defendant, George McGregor, from a judgment of tbe County Court of Clinton county in favor of tbe plaintiff, entered in the office of the clerk of tbe county of Clinton on the 24th day of August, 1892, affirming tbe judgment of a justice of tbe peace of’ the town of Mooers, Clinton county, N, Y.

      R. Corbin, for the appellant.

      H. S. Haff, for the respondent.
   Putnam, J.:

This is an appeal from a judgment of the County Court of Clinton county affirming a judgment of a Justice’s Court in favor of plaintiff. The action was brought to recover a school district tax assessed against tire defendant which he neglected and refused to pay. It Is not denied that defendant was a resident of the school district and that he had sufficient personal property in his possession therein out of which the tax could have been collected. The collector levied on sufficient property and advertised the same for sale. The defendant forbade the sale, and there being no bidders, the collector returned the warrant uncollected.

Section 86, chapter 555, Laws of 1864, as amended, provides as follows: Section 86. If the sum or sums of money payable by any person named in such tax list, shall not be paid by him, qi- collected by such warrant within the time therein limited, it shall and may be lawful for the trustees to renew such warrant in respect to such delinquent person; or in case such person shall not reside within their district at the time of making out a tax list, or shall not reside therein at the expiration of such warrant, or in ease the property assessed be real estate belonging in an incorporated company, and no goods or chattels can be found whereon to levy the tax, the trustees may sue for and recover the same in their name of office.”

In a note contained in the Code of Public Instruction, prepared ■under the supervision of State Superintendent Draper in 1887,. it is .said: “ The latter clause of the above section, giving the trustees the right to sue, is confined to those persons who do not reside within the district at the time of making out the list, or who shall .have ceased to reside therein at the expiration of the warrant, or to •corporations having real property upon the tax list.” (Code of Public Instruction, page 366, note.)

It will not be claimed that the above-quoted section of the statute •authorizes this action.

A school district is a quasi corporation, with some powers conferred by statute not generally possessed by such corporations. (2 Kent’s Comm. 278.) Such a corporation can exercise no powers beyond those conferred by statute, or which by necessary inference arise therefrom. (21 Am. & Eng. Ency. of Law, 800.)

Here the defendant lived in the district, and concededly had sufficient goods and chattels therein to satisfy the tax. There is no statutory provision to sustain an action to collect a tax under such circumstances. On the contrary, section 86, chapter 555, Laws of 1864, as amended, above quoted, impliedly prohibits such an action. It authorizes an action to collect a tax against a non-resident of the district, or in case the property assessed be real estate of a corporation and no goods or chattels can be found whereon to levy the tax, and thus impliedly forbids an action. This seems to be the proper construction of the statute. Expressio unius exolusio alterius. (Wait v. Wait, 4 Comst. 100, 101; Flatter of Washburn, 4 Johns. Ch. 113, 114.)

We do not think that section 1926 of the Code of Civil Procedure confers upon plaintiff a right to maintain this action. The effect of that section was not to create newr causes of action, but to confer upon the trustee a right to maintain, i/n his own name, an action upon existing causes of action, in favor of the body represented by him, or of his predecessor, or on contracts made by him. It was not intended to give the trustee power to maintain an action where no cause of action existed at the time of the enactment of said section. We think that no such cause, of action as set out in the complaint herein then existed, because the statute did not authorize, but, on the contrary, impliedly prohibited the maintenance of such an action.

The case of Torrey v. Willard (28 N. Y. St. Repr. 641) is not a parallel one. That action was commenced by the trustees of a union free school. The board of education of a union free school is a corporation proper, and not a quasi corporation, like the trustees of the ordinary school district. The distinction between the two corporations is pointed out in Bassett v. Fish (15 N. Y. 303-311). The statutory provisions as to the two kinds of corporations are not the same. And, hence, the case cited is not an authority here. A union free school, being a corporation proper, can maintain an action upon any liability, express or implied, under the general powers conferred on corporations. The plaintiff, however, represents a quasi corporation, and can only maintain an action which is expressly authorized by statute. No cause of action exists in his favor unless expressly authorized.

Again, in the case cited it appears from the statement in the opinion that the collector was justified in returning the process, being unable to collect the amount from the defendant. In this case it appeared that defendant had ample property from which the collector could have collected the tax, and, hence, he was not justified in returning the warrant uncollected. He had an actual levy on the property. We do not regard the fact that defendant forbade, the sale as an excuse for the collector’s neglecting to perform his. duty.

In Torrey v. Willard (supra) it was held that, although there was no authority for the actiqn, a common-law action could be maintained on the ground that there being an obligation to pay the tax, the law implied a promise to pay it. In this case we could hardly hold that a common-law action could he maintained in the face of the statute, which, as we have seen, impliedly prohibits such an action.

Without considering the other questions raised by the parties, we think the judgment of the court below should be reversed, with costs in this court and in the County Court.

Mayham, P. J., and Herrick, J., concurred.

Judgment reversed, witli costs in this court and in the County Court.


author: Per Curiam :

text:
    Jacob Cohn, Respondent, v. Frank E. Baldwin, Appellant, and Others.

      Affidavit to procure a bill of pa/rtieulars — insufficient reason for the verification thereof by an attorney.

    The provisions of section 525 of the Code of Civil Procedure, permitting a plea to be verified by the attorney for a party when such party is absent from the county where his attorney resides, applies only to a pleading and not to an affidavit to procure a bill of particulars.
    When an affidavit to procure a bill of particulars was verified by the attorney and not by the party, and the only reason stated why the affidavit of the party was not obtained, was, that such party was not a resident of, or within .the county where his attorney resided and had his office, no sufficient reason is set forth why the party should not have made the affidavit.
    When a bill of particulars of the facts alleged in a complaint should not be ordered.

      Appeal by the defendant, Frank E. Baldwin, from an order of tlie Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the-3d day of June, 1893, denying the defendant’s motion for a bill of. particulars.

      Mills & Bridge, for the appellants.

      Mark Cohn, for the respondent.
   Per Curiam :

We think that the affidavit on which the motion for a bill of partió ulars was made insufficient, being made by the attorney of one of' the defendants. The only reason stated why the affidavit of the-party was not obtained is as follows :

“ That the reason why this affidavit is not made by said defendant is that said defendant is not a resident of or within the county of Albany, which is the county where deponent resides and has his office.”'

By the provisions of section 525, Code of Civil Procedure, a verification to a pleading may be made by the attorney of a party,, when such party is absent from the county where the attorney resides; but that provision applies only to a verification of a pleading and not to an affidavit made to procure a bill of particulars. In this case no sufficient reason is set forth why the defendant did not make the affidavit. For all that appears, he may have been in another county of the State where his affidavit could be readily obtained. On such a motion the affidavit of the defendant, unless-impossible to be obtained, should be procured. The affidavit of the-attorney, made herein, does not show that defendant required any billot' particulars. (See Gridley v. Gridley, 7 N. Y. Civ. Proc. Pep. 215; Hoeninghaus v. Chaleyer, 22 N. Y. St. Repr. 528; Blake v. Harrigan, 33 id. 210.)

Again, plaintiff, in his affidavit, swears that the demand of plaintiff contained in the complaint, embraced all the dealings between plaintiff and defendants, and are all contained in the books-of account and papers of defendants. That the only information in the possession of plaintiff as to the said bets and wagers is derived from statements furnished to him by the defendants. That it will not be possible for the plaintiff to furnish all the particulars required. by the defendants unless the defendants are required to produce and deposit their books of account and papers containing the dealings between plaintiff and defendants in some proper and convenient place and permit the plaintiff or his attorney or some suitable person authorized by plaintiff to make an inspection of said books and papers and to make extracts of the entries therein.”

These statements, made in the plaintiff’s affidavit, are not denied. Such being the facts of the case, a bill of particulars should not be ordered. (Train v. Friedmam, 4 N. Y. Civ. Proc. Rep. 109; Isaac v. Wilisch, 69 Hun, 339; Fink v. Jetter, 38 id. 163; Wigand v. Dejonge, 18 id. 405.)

The order should be affirmed, with costs and disbursements.

Present — ■ Matham, P. J. and Putnam, J.; Herrick, J., not acting.

Order affirmed, with ten dollars costs, printing and other disbursements.


text:
    William C. Randall, Appellant, v. Frank Randall, Respondent.

      Findings of the trial court — ichen not disturbed upon appeal.

    Where the questions before a trial court were questions of fact, and the evidence was conflicting, the findings of such court cannot be disturbed upon appeal.
    Appeal by the plaintiff, William C. Randall, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 2d day of March, 1891, upon the decision of the court rendered after a trial at the Clinton Circuit.

      William F. Cantwell, for the appellant.

      C. H. Beckwith, for the respondent.
   Per Curiam :

We are unable to say that the trial judge did not properly exercise the discretion vested in him in regard to costs.

The questions in the case were of fact. The evidence was con fficting, and under well-settled principles the findings of the court below, rendered on such conflicting evidence, cannot be disturbed.

The judge, however, seems to have made a slight mistake in his calculation as to two items. In the twelfth finding, page 17, he holds that plaintiff expended in April, 1880, thirty-five dollars; in March, 1880, twenty-five dollars, and upon one other occasion twenty-five dollars. It will be seen that in his calculation at page 11 the last above item is omitted, and that the expenditure of April, 1880, is put at twenty-five dollars instead of thirty-five dollars, making in all an error of thirty-five dollars. The judgment should have been larger, therefore, by one-lialf of that amount and interest, in all amounting to twenty-eight dollars and forty-four cents.

If defendant shall stipulate, within ten days after the service of a copy of the order herein, that the judgment be increased twenty-eight dollars and forty-four cents as of the date of the entry thereof, judgment shall be so modified, and, as so modified, affirmed, without costs to either party. If defendant fails to so stipulate, judgment reversed and a new trial granted, costs to abide the event.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Judgment to be modified if defendant so stipulates, and, as so-modified, affirmed, without costs ; if defendant does not stipulate to modify judgment, then judgment reversed and a new trial granted, costs to abide the event.


text:
    The Albany County Bank, Respondent, v. Jonathan T. Rider, Appellant.

      Answer — when stricken out as sham.

    An answer containing a general denial cannot be stricken out as sham.
    An answer asserting an affirmative defense may be stricken out as sham, although, ordinarily, if the affirmative defense is good upon its face, the issue raised by it should not be tried on affidavits.
    It is only in unusual cases, where it appears that an answer is a mere pretense, set up for the purpose of vexation or delay, that it can be stricken out as sham. There should appear some fact or facts outside of the affidavits tending to 3how the falsity of the answer, and indicating bad faith.
    Appeal by the defendant, Jonathan T. Rider, from an order of the Supreme Court, made at- the Albany Special Term and entered in the office of the clerk of the county of Albany on the 30th day ■of March, 1893, granting the plaintiffs motion to strike out the •defendant’s answer as sham.

      F. L. Michael, for the appellant.

      Myer Hussbaum, for the respondent.
   Putnam, J.:

The complaint alleges a cause of action upon two promissory notes of $500 each, made by defendant to plaintiff. The answer contained no denial, but set up an affirmative defense and an alleged counterclaim. On motion of plaintiff it was struck out as sham. It has been held that an answer containing a general denial cannot be thus stricken out. (Wayland v. Tysen, 45 N. Y. 281; Robert Gere Bank v. Inman, 51 Hun, 97.) Also one setting up a counterclaim, but that an answer asserting an affirmative defense may be. (Wilson v. Eastman & Mandeville Co., 18 N. Y. Civ. Proc. Rep. 267; Com. Bank of Roch. v. Spencer, 76 N. Y. 155.) There are cases, however, holding a contrary doctrine. (Barney et al. v. King et al., 37 N. Y. St. Repr. 533; Webb v. Foster, 45 N. Y. Super. Ct. 312; Farnsworth v. Halstead, 18 N. Y. Civ. Proc. Rep. 227.)

It is apparent that an answer setting up a general denial should not be stricken out as sham, because such a denial is a good pleading on its face, raising an issue which should be tried in the ordinary way, and not upon affidavits. So, ordinarily, when an answer sets up an affirmative defense, good on its face, the issue raised by it should not be tried on affidavits. Such a practice would deprive the defendant of a trial by jury. It would allow the plaintifE, if able to produce a greater number of affidavits, to try the issues raised by the pleadings before the Special Term, thus taking away from the defendant a constitutional right. It is only in unusual cases, where it appears that the answer is a mere pretense, set up in bad faith, for the purpose of vexation or delay, that it can be so stricken out. There should appear some fact or facts outside of affidavits showing or tending to show the falsity of the answer and indicating bad faith. (Farnsworth v. Halstead, 18 N. Y. Civ. Proc. Rep. 228, 229; Hadden v. N. Y. Silk Mfg. Co., 1 Daly, 388; Kiefer v. Thomass, 6 Abb. Pr. [N. S.] 42.)

We think that this is one of those exceptional cases where, from an inspection of the pleadings and the affidavits, it is apparent that the answer is thus interposed in bad faith and is false and sham. The answer sets up no valid defense. It admits the making of the note in suit to plaintiff and alleges that it was given in exchange for and as part payment of a note theretofore made by defendant to one Herrick for the sum of $2,500, and by Herrick transferred to plaintiff. That said note for $2,500 was given for the accommodation of said Herrick and without consideration, and that fact was known to plaintiff when it took the note. That defendant had received no consideration for said note from plaintiff or said Herrick. It is not alleged that there was any unlawful diversion of the note, or that plaintiff did not pay value for it to Herrick. The fact that plaintiff knew the note was accommodation paper (if true) when it purchased it, is not a defense. (Pettigrew v. Chave, 2 Hilt. 546; Grant & Cary v. Ellicott, 7 Wend. 227; Bacon v. Holloway, 2 E. D. Smith, 159; Arnold v. Sprague, 34 Vt. 402.)

The answer in fact, therefore, instead of alleging a defense to the note in suit, actually alleges a good consideration therefor, as between defendant and plaintiff. t

The third clause of the answer does not set up any valid counterclaim. It seems to be frivolous. Instead of showing a claim against plaintiff in favor of defendant it shows that the $2,500 note was properly transferred to and owned by the former, who was, therefore, entitled to maintain an action thereon, and that the voluntary payment by defendant thereon was a payment of a sum legally duo plaintiff.

The affirmative defense assumed to be set up by defendant, therefore, seems to be frivolous, and being at the same time, by the affi-. ■davits, shown to be false, was properly held by the court below to be sham and was properly stricken out.

The order should be affirmed, 'with costs.

Mayham, P. J., concurred; Herrick, J., not acting.

■Order affirmed, with costs.