text:
    ELLIS H. ROBERTS & CO., Plaintiff, v. GEORGE F. VIETOR, CARL VIETOR, THOMAS ACHELIS, Jr., and JOHN ACHELIS (Composing the Firm of FREDERICK VIETOR & ACHELIS), Appellants, PATRICK F. BULGER, as Assignee, etc., and WILLIAM E. SHIRLEY, Respondents, Impleaded with JOHN BUCKLEY and Others, Defendants.

      Assignment for creditors — preference, indefinite in its description, of the creditor preferred — findings of a referee as to fraud — that no boolcs of account inere kept will not justify the setting aside of the assignment.

    Tn an action -brought to set aside a general assignment for the benefit of creditors, made by Buckley <fc Shirley to one Bulger, the assignment was claimed to be fraudulent and void on the ground that, on its face, it preferred a debt of " L. Coon, agent or individually, New York, money loaned, promissory note made by assignors, indorsed by A. J. McIntosh, payable to L. Coon, agent or individually, unable to say which, dated March 2, 1886, due in four months, $2,500, interest from March 2, 1886.”
    It was found by the referee that the note so preferred had its origin in a man made hy one Mrs. Feuehtwanger to Buckley <fc Shirley, and that the note really belonged to her, and not to L. Coon.

      Held, that as there was nothing in this case to show that the assignors did not honestly describe the debt in question as best they could, or that they did not suppose that the note was held by Coon, either in his own right or as agent, and as there was no evidence from which it could he held that if a mistake was made in describing the debtor it was not an honest one, it did not render the assignment void “ on its face.”

      Maack v. Haack (49 Hun, 507) followed.
    It was claimed that a debt of Adelia J. Sparks, which was preferred, was the debt of Buckley, Myers & Co., and that it had been assumed by Buckley & Co. without consideration. On the trial it. appeared that the money was loaned to the firm of Buckley, Myers & Co., prior to August 10, 1878, and that the note was held by Sparks until one of the members of that firm died, leaving Buckley & Shirley as the sole surviving partners thereof, and that thereafter, and on January 8, 1884, she surrendered it to Buckley & Shirley, and received therefor the note of Buckley & Shirley for the amount of her note and interest.

      Held, that, under such circumstances, the note given herhy Buckley & Shirley was not invalid, and that the preference of that debt did not render the assignment void as to their creditor, Shirley.
    Cases upon this question collated hy Martin, J.
    A claim that Buckley & Shirley had fraudulently disposed of their property was founded solely on a finding of the referee: "That at various times between March 29, 1884, down to and on the 2d day of March, 1886, Buckley & Shirley stated and represented to several of their creditors and mercantile agencies that they had a surplus of at least $40,000, over and above their debts and liabilities,” and ‘ ‘ that no business losses had been shown to have occurred to Buckley & Co. sufficient to wipe out such surplus between the dates of such statements and representation and the date of the last assignment.”

      Held, that as there was no proof, except that contained in this finding, that Buckley & Shirley had disposed of any of their property fraudulently, nor any finding of the referee that any such fraudulent disposition of their property had, in fact, been made, but as, on the contrary, the referee had found that the assignment was made in good faith, the court could not hold, as matter of law, that there had been any fraudulent disposition of their property by that firm.
    That the fact that Buckley & Shirley kept no ledger, and kept no cash-book, was not sufficient evidence of fraudulent intent to render the assignment fraudulent and void.
    Appeal by certain of the defendants, composing the firm of Frederick Yietor & Achelis, from a judgment which was entered, upon the report of a referee, in the office of the clerk of Onondaga county on the 3d day of July, 1888.

      James JDwvne, for the appellants.

      W. A. Matteson. for Spencer and others, judgment-creditors, respondents.
    Sisley, Qwm dc Perry, for Bulger, as assignee, respondent.
   Martin, J.:

The primary object of this action was to set aside a general assignment for the benefit of creditors, made by the defendants Buckley and Shirley to the defendant Bulger.

On the trial the appellants sought to impeach the assignment as fraudulent and void on the grounds: 1. That on its face it preferred a debt of L. Cohn, agent or individually, thus failing to show the creditor intended to be preferred. 2. That Cohn was not a creditor of Buckley & Co. 3. That the debt of Chloe Spencer, which was preferred, was the individual debt of Shirley. 4. That the debt of Adelia J. Sparks, which was preferred, was the debt of Buckley,Myers & Co., and assumed by Buckley & Go. without consideration. 5. That the debt of Daniel G. Major, which was preferred, had been partly paid, was fictitious in part, and a part was for money loaned to tbe defendant Buckley individually. 6. That Buckley & Co. bad fraudulently disposed of their property. 7. That Buckley and Co. had fraudulently and collusively allowed the defendants Major, Spencer, Sparks and Wheeler, to obtain judgments for the sums preferred in the assignment, and which were not owing to them. 8. That Buckley & Co. had failed to keep proper books of account.

As the appeal-book does not contain the évidence given before the referee, except that relating to the validity of the preferences of the debts of Mrs. Spencer and Daniel Gr. Major, we are not called upon to review the facts in this case except so far as they relate to the preference of those debts. All other are legal questions and founded on some alleged error of law. (Billings v. Russell et al., 101 N. Y., 228.) Before proceeding to examine the legal questions involved, it will be necessary to examine the facts relating to the debts of Spencer and Major, as our determination of those questions may have an important bearing upon the questions of law to be subsequently considered.

Proceeding in the order of examination suggested, wo are at first presented with the question, whether the debt of Cliloe Spencer was an individual debt of Shirley, one of the members of the firm of Buckley & Co., or whether it was the debt of the firm. The referee has found that on the 13th day of February, 1884, Mrs. Spencer loaned to the firm $3,000, for which the firm gave her its note; that the note has not been paid, and was preferred in the assignment. We have carefully examined the evidence relating to this claim, and are of the opinion that it fairly sustains the finding of the referee that this was a firm debt, and that his finding upon that question should not be disturbed.

This brings us to the examination of the claim of the defendant Major. The statement of his debt in the schedule, which was a part of the assignment, was substantially as follows: Daniel Gr. Major, Washington, D. C., money loaned, in accounts and notes, which assignors are unable to describe, amount about $12,000; .date of interest, $1,000, January 12, 1883; $1,500, August 8, 1883; $500, October 4,1883 ; $1,000, February 1,1884; $3,000, February 10,1884: $5,000, May 23,1884, as near as assignors are able to state.

The referee has found that there was actually due from Buckley & Oo. to Major on the day the assignment was made the sum of $12,656.38 ; that the assignors, while they did not pretend to describe the debt of Major in the assignment accurately, did intend to prefer the debt actually due, and supposed they were doing so, and that in so describing said debt there was no intent, to hinder, delay or defraud their creditors, on the part of the assignors. The evidence and findings of the referee are also to the effect that a $1,500 note held by Major against Buckley & Co. had been paid; that, at the time of such assignment, Buckley & Co. did not owe him $1,000 obtained January 12, 1883, nor $5,000 obtained May 23, 1884; that $1,000 of the money advanced by Major was to pay rent on the store occupied by Buckley & Co., the lease of which had been assigned to Major; that Major never occupied the store nor received the rent for the sanie, but the rent was paid by Buckley & Co. to the landlord; that some of the items advanced by Major were advanced by sending his check or drafts payable to Buckley or to Buckley’s wife, and were not charged upon the firm books of Buckley & Co.

Upon the questions which arose as to the $1,500 debt that was paid, the statement in the assignment as to the interest on $1,000 from January 12, 1883, and $5,000 from May 23, 1884, as to the thousand dollars advanced to pay rent, and as to the money advanced, which was sent by check or draft to Buckley or his wife, considerable evidence was given. The evidence tended to show that all the money sent or advanced by Major was in fact loaned to Buckley & Co. The reasons for sending such checks or drafts to Buckley or his wife were given. The evidence also tended to show that the fact that the $1,500 had been paid was forgotten by the parties, and that mentioning that sum, as well as the sums of $1,000 and $5,000 in the- assignment, was a mistake, and arose from the fact that the assignors were unable to determine the precise sum due, and that this condition of affiairs arose out of the relation of the parties and the manner in which the business between them had been transacted. We think the evidence was sufficient to justify the referee in finding that the assignors intended to prefer the debt actually due Major; that they were guilty of no fraudulent intent in doing so; that the debt preferred was a debt of Buckley & Co., and that no part of the debt preferred was fictitious. We think the findings of fact by the referee were sufficiently sustained by the evidence and should be upheld.

This brings us to the consideration of the legal questions in the case. The referee found that the assignment was made and accepted in good faith', and with no intent to hinder, delay or defraud the creditors of the assignors; and held that the assignment was valid, and the preferences to the amount due the creditors preferred were also valid. The appellants now ask this court to reverse the findings and decision of the referee on the grounds above stated. In view of the importance of this case, it is perhaps due to the parties that we briefly examine each of the grounds relied upon separately. First, then, was the assignment void because in the preference of what is known as the Cohn debt the assignment failed to identify the creditor whose debt was intended to be preferred ? The statement contained in the assignment as to this debt was as follows: “L. Cohn, agent or- individually, New York. Money loaned. Promissory note made by assignors, indorsed by A. J. McIntosh, payable to L. Cohn, agent or individully; unable to say which, dated March 2, 1886, due in four mos., $2,500, interest from March 2, 1886.” It appeared by the evidence, and was found by the referee, “ that the note so preferred had its origin in a loan by one Mrs. Feuchtwanger to Buckley &.Co., and the note really belonged to her, and not to L. Cohn.”

The appellants contend that preferring this debt without specifying it as a debt owing Mrs. Feuchtwanger rendered the assignment void “on its face.” We do not think so. That the debt intended to be preferred was accurately and fully described is not and cannot be denied. No debt but that described could have been intended, and no other could have been substituted in its place. That the loan was in fact obtained from or through Cohn is not disputed, nor is there any pretense that the debt evidenced by the note described had ever been paid. There is nothing in this ease to show that the assignors did not honestly describe the debt in question as best they could, or that they did not suppose that the note was held by Cohn, either in his own right or as agent, nor is there any evidence from which it can be held that if a mistake was made in describing the debtor it was not an honest one.

In Maack v. Maack (49 Hun, 507), it was lield that a provision in an assignment that the assignee should “ pay in full all debts due or to become due for goods sold to the party of the first part in said grocery and feed business, the particular items of which the party of the first part is now unable to mention ” was not void for uncertainty. (See, also, Bank of Silver Creek v. Talcott et al., 22 Barb., 550; Richardson v. Thurber, 104 N. Y., 606.)

We do not think the description of the debt was so uncertain as to render the assignment void as a matter of law. These considerations also dispose of the second ground upon which the appellants seek to reverse the judgment in this case.

Third. The next and third ground insisted upon by the appellants is, that the debt of Mrs. Spencer was an individual debt of Shirley, and its preference rendered the assignment fraudulent and void. As we have already seen, the referee has found that the debt was a firm debt of Buckley & Co. This finding, we think, should be sustained, and thus the foundation for this objection does not, in fact, exist.

Fourth. We do not think that the appellants’ claim that the debt of Adelia J. Sparks was fraudulently preferred can be sustained. The foundation of this debt was money loaned to the firm of Buckley, Myers & Co., prior to August 10, 1878, and for which she held the note of that firm. Myers, one of the members of that firm, subsequently died, leaving Buckley and Shirley as the sole surviving partners thereof. After Myers’ death she continued to hold that note until January 8,T884, when she surrendered it up to Buckley & Co., which firm consisted of Buckley & Shirley, and received therefor the note of Buckley & Co. for the amount of such first note and interest. This last note was preferred in the assignment of Buckley &Co., in 1884, and also by the assignment under consideration. No part of this note or debt has ever been paid. The consideration for the note given by Buckley & Co., was the surrender of the note made by Buckley, Myers & Co. Both Buckley and Shirley were liable on the note given by Buckley, Myers & Co., and were liable for the debt due Adelia J. Sparks from the time of its inception. Under such circumstances, we do not think that-the note given her by Buckley & Co. was invalid, nor that preferring that debt rendered the assignment void as to the creditors of Buckley & Co. (Stanton v. Westover et al., 101 N. Y., 265; Saunders et al. v. Reilly, 105 id., 12; Royer Wheel Co. v. Fielding, 101 id., 501; Crook v. Rindskopf, 105 id., 176; Williams v. Whedon, 109 id., 333.)

Rifth. Nor do we think that the appellants’ claim, that the preference of the Major debt rendered the assignment void, should be sustained. As we have already seen, the appellants’ claim that this debt was partly fictitious and. partly an individual debt of Buckley, is not sustained by the facts as found, and the claim that a portion of the debt has been paid has been explained by the evidence, which shows, at most, an honest mistake of the parties in supposing that this portion of the debt still remained unpaid. “ While an excessive preference without explanation would invalidate an assignment, the ear of the court is not shut to facts which may establish an honest mistake.” (Brown v. Halsted, 17 Abb. N. C., 197, 204; Kavanagh v. Beckwith, 44 Barb., 192, 197.)

Sixth. The claim of the appellants that Buckley & Co. had fraudulently disposed of their property is founded solely on the findings of the referee, “ that, at various times, between March 29, 1881, down to and on the 2d day of March, 1886, Buckley and Shirley stated and represented to several of their creditors and mercantile agencies that they had a surplus of at least forty thousand dollars over and above their debts and liabilities,” and “ that no business losses have been shown to have occurred to Buckley & Co. sufficient to wipe out said surplus between the dates of such statements and representations and the date of the last assignment.”

With no proof, except that contained in such findings, that Buckley & Co. had disposed of any of their property fraudulently, and without any finding by the referee that any such fraudulent disposition of their property had, in fact, been made, but with a finding that the assignment was made in good faith, we do not think that this court can hold, as a matter of law, that there had been any fraudulent disposition of their property by Buckley & Co.

Seventh. The referee has found that the judgments entered in favor of the defendants Major, Spencer, Sparks and Wheeler were entered in good faith and without any intent to hinder, delay or defraud the creditors of Buckley & Co., and that the amounts for which such judgments were rendered were due to the several judgment-creditors named, except that the judgment obtained by Major was for $13,521.10, when it should have been for the sum of $12,656.38, but that “the error in stating the amount of and describing the claim in the complaint was innocently made, and with the belief that the allegations of the complaint setting forth the debt were true, and the offer of judgment was made and accepted in the same belief.”

Assuming these facts, as we think we should, it is very difficult to perceive how the obtaining of such judgments would in any way invalidate the assignment. While we think it may be readily supposed that the purpose of obtaining those judgments was to insure the collection of the debts of these several creditors, even-in the event that the assignment should fail, still, if we assume that such was their purpose, how does that affect the validity of the judgments if they were obtained in good faith and the assignment was made in good faith ? We think not at all. Nor do we think that the manner in which these judgments were obtained rendered the assignment or the judgments fraudulent. (Gutman v. McNulty, 22 Week. Dig., 241; Beards v. Wheeler, 76 N. Y., 213; Trier v. Hermann et al., 44 Hun, 489.)

Eighth. Nor can we discover in the fact that Buckley & Co. kept no ledger, and kept no general cash book a portion of the time, while-engaged in business, sufficient evidence of fraudulent intent to-justify us in holding that the assignment was fradulent and void.

We have thus examined separately and somewhat in detail the various grounds relied upon by the appellants for the reversal of the judgment in this action, but have found none which we regard as sufficient to justify us in so doing; and when we consider all th.ese grounds together we are still of the opinion that they are not sufficient to justify a reversal of the judgment appealed from. This case has been fairly and carefully tried before an intelligent- and upright officer, who has bestowed great care and industry in the examination and determination of this case. He has had the-witnesses before him, become thoroughly familiar with the facts and their relation to each other, and his determination of the facts in this case should be regarded as final. As to the legal questions-involved, so far as they relate to the construction of this assignment, the same rules should be applied as are applicable to the interpretation of other contracts. They are to be fairly and reasonably •construed with a view to carrying out the intent of tbe parties making them. Where, therefore, an interpretation may be given to the assignment, consistent with innocence and the general rules of law, it should be given in preference to one which would impute a fraudulent intent to the assignors or defeat the general purpose and intent of the conveyance. (Crook v. Rindskopf, 105 N. Y., 477, 485.)

Applying this rule to the questions involved, we think it quite manifest that the judgment should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    WILLARD JOHNSON, Respondent, v. THE THOMSON-HOUSTON ELECTRIC COMPANY, Appellant.

      Blectric-light poles erected to light the streets in villages — right of the village’trustees to authorize their erection notwithstanding the objections of owners of abutting property.

    The act incorporating the village of Fulton conferred upon the board of trustees thereof jurisdiction 'and control of the streets therein. This board granted to the Thomso'n-Houston Electric Company a license to erect poles and wires in the streets and grounds of the village for the purpose of supplying electricity for electric lights to be used in lighting the streets of the village, and also for private use. The company thereupon erected a pole in one of the streets of the village, in front of the premises of one Johnson, without obtaining his consent.
    Upon the trial of an action, brought by Johnson to restrain such action on the part of the electric company, the court decided that the license of the board of trustees did not justify the erection or maintenance of the pole and directed its removal.

      Held, that the court erred in so deciding.
    That, under the license given by the trustees, the electric company had the right to erect this pole, and to use it for the purpose of supplying the electricity, necessary to light the streets, and to use it as a point from which to suspend a street light.
    That the fact that the coui;t had found “ that this pole * * *• was not necessary for the public use alone, and there were other places where it might have been located so as to answer the' same purpose,” was not an answer to the right claimed by the electric company, as it was conceded on the trial that this pole “was convenient and reasonably necessary to the furnishing light for public and private use.” .

      Appeal from a judgment, rendered upon a trial at a Special Term held in Oswego county, which was entered in the office of the clerk of Oswego county on the 13th day of March, 1889, in favor of the plaintiff, requiring the defendant to remove a pole erected by it in one of the streets of the village of Fulton in front of the plaintiff’s premises.

      Giles 8. Piper, for the appellant.

      Mead c& Strcmahcvn, for the respondent.
   Martin, J.:

"We are of the opinion that the plaintiff was not entitled to the relief awarded by the judgment herein. The defendant erected a pole in one of the streets of the village of Fulton in front of the plaintiff’s premises without his consent. The board of trustees of the village granted to the defendant a license to erect poles and wires in the streets and grounds of the village. The act incorporating the village conferred upon such board jurisdiction and control over the streets therein. The special Term found that the board had power to maintain lights in the streets of the village, and to procure and erect necessary fixtures for lighting such streets. The pole in question was erected for the purpose of supplying electricity for electric lights to light the streets of the village, and also for private use. It was also intended that a street light should be suspended therefrom. The learned trial judge held that the license of the board of trustees did not justify its erection or maintenance, and directed its removal.

It must .be admitted that the streets of a populous village or city are subject to greater burdens and to a greater variety of uses than a rural highway, and that the extent of an easement in a street is to be measured by the necessities of the public. In Lahr v. Metropolitan Elevated Railway Company (104 N. Y., 292), Huger, Ch. J., said: “ Statutes relating to public streets which attempt to authorize their use for additional street uses, are obviously within the power of the legislature to enact. * * "' Such are the cases in respect to changes of grade; the use of a street for a surface horse railroad; the laying of sewers, gas and water pipes beneath the soil; the erection of street lamps and hitching posts, and of poles for eleotrie lights used for street lighting. All of these relate to street uses sanctioned as such by their obvious purpose and long continued usage, and authorized by the appropriation of land for a public, street.” In Tuttle v. Brush, etc., Company (50 Supr. [18 J. & S.], 464), it was held that city authorities had full power over the matter of fighting streets, and might authorize the erection of poles to be used for that pimpose. See, also, Harlem Gas Company v. Mayor, etc., of New York (33 N. Y., 327), and other cases cited in opinion in Tuttle case.

In Metropolitan Telephone and Telegraph Company v. The Colwell Lead Company (50 N. Y. Supr. [J. & S.], 488), it was held that the streets could not be used for the erection of poles to conduct telegraph and telephone wires, and in the Tuttle case the right to use the street for the purpose of supplying electricity to private persons was doubted. We think it quite clear that the trustees of the village of Fulton had power under and by virtue of the provisions of the charter 'to authorize the defendant to erect a pole in question for the purpose of fighting the streets of the village. That the board could properly authorize its erection for the purpose of supplying fight for private use may well be doubted, as it could not devote the street to purposes other than those for which it was intended without compensation to the owner. (Mahady v. The Bushwick R. R. Co., 91 N. Y., 148.) We think it must be held that, under the license given by the trustees, the defendant had the right to erect this pole and use it for the purpose of supplying electricity necessary to fight the streets in that vicinity, and to use it as a point from which to suspend a street fight. One, and perhaps the chief, purpose of locating the pole at this place was to furnish a proper fight for the streets in that locality. So far as its erection was for that purpose, it was'lawful, and did not invade the plaintiffs just rights. The fact that the defendant ■ might have intended to use it for other and unjustifiable purposes may have entitled the plaintiff to an injunction restraining such unauthorized use, but did not, we think,, entitle him to have it wholly removed so long as it was reasonably necessary and proper for the public service.

It is true that the court found that this pole * * * was not necessary for the public use alone, and there were other places where it might have been located so as to answer the same purpose.” ‘Whether the trial judge intended by this finding to decide that no pole was necessary at that place for public use, or whether his intention was to find that it was not alone necessary for that purpose, but was also necessary for private use, is not quite clear. If the former, it is, we think, adverse to the concession of the parties and against the weight of. the evidence. On the trial it was conceded that this pole “ was convenient and reasonably necessary to -the furnishing light for public and private use.” This concession involved the necessity of this pole to furnish light for public as well as for private use, and the evidence tended to show quite conclusively that such a pole in that vicinity was necessary-for the proper maintenance of a street light which was required at that place. We do not think it an answer to the right claimed to say that this pole might have been placed on the land of others. If it was necessary that- it should be located in that vicinity, the burden could as properly be imposed upon the street in front of the plaintiffs jiremises as upon the street in front of the premises of his neighbor.

Upon the evidence, admissions and facts, as presented on this appeal, we are of the opinion that the judgment directing the removal of the pole in question was not justified; that the court erred in directing such judgment, and for that error the judgment should be reversed.

The judgment should be reversed, with costs to abide the event.

ITardin, P. J., concurred; Merwin, J., not sitting.

Judgment reversed on the exception and a new trial ordered,with costs to abide the event.


text:
    CHARLES G. BALDWIN, as Assignee for the Benefit of Creditors of HEZEKIAH F. DOW, HENRY W. SHORT and ORINDA B. SPERRY, Respondent, v. FANNIE M. SHORT and ORINDA B. SPERRY, Appellants, Impleaded with HENRY W. SHORT and HEZEKIAH F. DOW.

      Lñ'audulent conveyance — it cannot, where the fraudulent intent was known to the grantee, he held to securre even the actual indebtedness of the grantor to the grantee.

    Jn an action brought to set aside and vacate a deed of conveyance of land, upon the ground that it was made in fraud of the creditors of the grantor, the trial judge found that at the time of such transfer the grantor was justly indebted to the grantee in the sum of $8,688.96; that the premises conveyed were of the value of $12,000; that the grantee further claimed that the grantor was also indebted to her in the sum of $3,482; that the deed was delivered and received in payment of both debts; that the grantor was not indebted to the grantee for the latter sum; that the deed in question was made with a fraudulent intention, in which the grantee participated, and directed that a judgment be entered in plaintiff’s favor. It was contended that as the court found that the grantor was indebted in the sum of $8,688.96 it should have permitted the deed to stand as security for the sum actually due.

      Meld, that the deed could not be held as a security for the actual consideration, where it was made by the grantor with a fraudulent intent which was known to and participated in by the grantee.
    ■Cases bearing on this question collated by Marten, J

      Loos v. Wilkinson (113 N. Y., 485; distinguished.
    Appeal by the defendants, Fanny M. Short and Orinda B. Sperry, from a judgment entered, after a trial at a Special Term held in ■Onondaga county, in the office of the clerk of Onondaga county ■on the 18th day of August, 1889, which adjudged a deed, executed by the defendant, Orinda B. Sperry, to the defendant, Fannie M. Short, to be fraudulent and void as against the creditors of the said ■Orinda B. Sperry and the firm of Douw, Short & Co.

      LovAs Marshall, for the appellants.

      Gha/rles G. Balcbwm, for the respondent.
   Martin, J.:

The plaintiff sought by this action to set aside a conveyance to •the defendant Fannie M. Short by the defendant Orinda B. Sperry, of the premises described in the complaint. The ground for the relief asked was, that such transfer was made and received with the intent to hinder, delay and defraud the creditors of the' grantor, and, was, therefore, fraudulent and void.

The learned trial judge at Special Term found that, at the time' of such transfer, the defendant Sperry was justly indebted to the-defendant Fannie M. Short, in the sum of $8,688.96; that the premises conveyed were of the value of $12,000; that the defendant Fannie M. Short claimed that the defendant Sperry was: indebted to her in the sum of $3,482 for the board of Mrs. Sperry- and her daughter; that the deed in question was delivered and received in payment and satisfaction of both of said debts; that the-defendant Sperry was not indebted to Mrs. Short for the board of' herself and daughter, or for the board of either; that the deed in question was given by Mrs. Sperry with the intent to hinder and defraud her creditors, which intent was known to and participated in by Mrs. Short, and directed a judgment in plaintiff’s favor, adjudging-the deed from Mrs. Sperry to Mrs. Short to be fraudulent and void, and that Mrs. Short convey the premises described to the plaintiff-

The validity of this decision and the judgment entered thereon-is challenged by the appellants upon the grounds: 1. That the-findings of facts are against the evidence. 2. That upon the facts, as found, the plaintiff was not entitled to the relief awarded. The-evidence seems to be sufficient to sustain the findings of the trial judge, and, therefore, we do not think the judgment should be disturbed on the first ground. But the appellants contend that even if the facts were as found, still the plaintiff was not entitled to the-judgment directed. Their claim is, that as the court found that the grantor in this deed was justly indebted to the grantee in the* sum of $8,688.96, and that the deed was given in payment of such debt, it should have been upheld so far at least as to have permitted it to stand as security for the sum actually due to the grantee. The authorities cited by the appellants to sustain this claim are to the-effect that if a grantee purchases without actual notice of a fraudulent intent on the part of his grantor, but for a consideration so-inadequate that it would be inequitable to allow the deed to stand as a conveyance, a court of equity may give it effect as a security for the actual consideration. (Van Wyck v. Baker, 16 Hun, 168; Boyd v. Dunlap et al., 1 Johns. Ch., 478; Pond v. Comstock, 20 Hun, 492; affirmed, 87 N. Y., 627; Bigelow v. Ayrault, 46 Barb., 143.)

Admitting the doctrine of the cases cited, it does not aid the-appellants ; the court has found that a part of the consideration for this transfer was fictitious, and that it was made by the grantor with a fraudulent intent, which was known to and participated in by the grantee. None of the cases cited sustain the doctrine that a deed may be upheld as security for the actual consideration where such is-the case. In Van Wyck v. Baker the court said: “ If a grantee purchases with notice of a fraudulent intent on the part of his grantor, the deed is void, though he pays the full value of the property.” In Boyd v. Dunlap it was said: “A deed fraudulent in fact, is absolutely void, and is not permitted to stand as security for any purpose of reimbursement or indemnity.” In Pond v. Comstock the deed was upheld as a security upon the express ground that the grantee “ took the transfer in actual good faith and with good motives.” In Bigelow v. Ayrault the purchase was not made with any fraudulent intent. In Sands v. Codwise et al. (4 Johns., 537), it was held that where deeds are void on the ground of absolute fraud, they are to be considered as void db initio, and are not allowed to stand as security to the grantee for advances he may have made or responsibilities he may have entered into on account of them. In Davis v. Leopold et al. (87 N. Y., 620), it was held that where a conveyanee is made that is fraudulent as to the creditors of the grantor, and the grantee is a party to the fraud, he is not entitled to protection for any sum paid or liability incurred; the conveyance is absolutely void, and is not permitted to stand as security for any purpose of indemnity or reimbursement. The same doctrine is held in Union National Bank of Albany v. Warner (12 Hun, 306); Wood v. Hunt et al. (38 Barb. 302); Swift v. Hart (35 Hun, 128). In Billings v. Russell (101 N. Y., 226), it was said by Huger, Oh. J.: From this review of the authorities it seems clear that where there is an actual intent to defraud, no form in which the transaction is put can shield the property so transferred from the claims of creditors, even though a full and adequate consideration be received for the same.”

We do not think the principle of these case has been changed by anything decided in Loos v. Wilkinson (113 N. Y., 485). It is true it was held in that case that a fraudulent grantee who was a participant in the fraud, was entitled to be allowed the sums he had paid for taxes, interest on mortgages on the premises, and for repairs and agent’s commissions for managing the property and collecting rent, but in the opinion in that case the doctrine, “that a fraudulent grant to a grantee who is a guilty participant in the fraud must, as to the creditors of the grantor, be treated as void ah i/nitío,” was .again asserted.

In view of the uniformity with which it has been held by the courts of this State that a grant made and accepted with fraudulent intent is absolutely void and will not be allowed to stand as security for the consideration, we think it must be held that the court committed no error in holding that the deed in question was fraudulent and void against the creditors of Mrs. Sperry, and in directing judgment setting it aside, and requiring the defendant Fannie M. Short to convey the premises to the plaintiff. We think the admission of evidence of the declarations of Mrs. Sperry was justified by the doctrine of Loos v. Wilkinson (110 N. Y., 195, 211).

We have examined the other exceptions to the admission of evidence to which our attention has been called, but they disclose no error that would justify a reversal of the judgment herein. We think the judgment should be affirmed.

Hardin, P. J., and Mebwin, J., concurred.

Judgment affirmed, with costs.


author: Merwin, J.: Martin, J.:

text:
    ELIZABETH H. BUTLER, Appellant, v. THE CITY OF OSWEGO and ERASTUS P. BURT, Respondents.

      Statute of limitations — effectual only as a shield not as an aggressive weapon — how fan’ a failure to give a notice to redeem from an assessment sale is affected thm’éby.

    In an action brought to set aside, as a cloud on tbe plaintiff’s title, a tax-sale certificate issued by tbe defendant, tbe City of Oswego, to tbe defendant Burt on tbe 8tb day of December, 1866, based upon an assessment upon tbe property in question to Charles H. Bonnell in 1865, tbe only material question was wbetber tbe plaintiff was entitled to any relief in tbis action, by reason of tbe failure of tbe defendant Burt to give to the owner a notice to redeem under the requirements of the charter of the city of Oswego, which provided, that “at any time after twelve months after the sale of any parcel of lands for any tax or assessment, the purchaser, his representatives or assigns, shall give notice to the owner requiring him to redeem the premises in three months thereafter by making a payment ” of the amount then due.
    Upon the trial it appeared that twenty years and upwards had elapsed since the time at which such notice might have been given.

      Held, that the statute of limitations was designed and could only be used as a shield, and never as an affirmative, aggressive weapon, and that equitable relief could not be based upon the presumption created by the statute.

      Morey v. Farmers’ Loan and Lh'ust Company (14 N. Y., 802); Lamrenee v. Ball (Id., 477); Johnson v. Albany and Busquehamna Baikowy Company (54 id., 416> followed.
    That the principle was applicable to this case, as Burt had a claim in the nature-of a lien apparently effectual till payment, and that, therefore, the plaintiff could not take advantage of any presumption of payment under the statute, as relief in equity must be based on actual payment.
    That a claim, made on the part of the plaintiff, that she could stand upon the issue-of adverse possession, under the principle laid down in Baker v. Oakwood * (49 Hun, 416), was not maintainable, as the issue of adverse possession was not presented by the complaint and could not be tried in this, action.
    Appeal by tbe plaintiff from a judgment recovered at a Special Term beld in Oswego county, upon a trial by tbe court, wbicb was entered in tbe office of tbe clerk of tbe county of Oswego on tbe 23d day of April, 1889.
    Tbe action was brought to set aside, as a cloud on tbe plaintiff’s title, a tax-sale certificate, issued by tbe defendant, tbe City of Oswego, to tbe defendant Burt on tbe 8tb of December, 1866, based upon an assessment to Charles H. Bonnell in 1865. In tbe complaint it is-alleged that tbe assessment was void for tbe reason that tbe property was, at tbe time, unoccupied and belonged to a non-resident, but was assessed as resident property. Lapse of time was inferentially stated as another ground of nullity.

      W. W. Gar denier, for tbe appellant.

      X). P. Morehouse and Thomas H. Kvng, for the respondents.
   Merwin, J.:

Tbe only material questions to be considered in this case are, first, whether tbe trial court erred in refusing to find, as matter of fact, that Bonnell was a non-resident at tbe time of tbe assessment in question; and, second, whether the plaintiff is entitled to any relief in this action by reason of the failure of the defendant Burt to give to the owner a notice- to redeem, twenty years and upwards having elapsed since the time such notice might have been given.

First. The statute provided that the assessment-roll should be completed on or before the first day of July in each year. (Charter of Oswego, chap. 463 of the Laws of 1860, title 4, § 6.) The question then was whether, on July 1, 1865, Bonnell was a nonresident ? The burden was on the plaintiff to show this. (Tingue v. Village of Port Chester, 101 N. Y., 294.) There is no evidence that at that date he did not reside in Oswego. A witness testifies that in November or December, 1865, he saw Bonnell at work on a derrick at Pithole, in the State of Pennsylvania. The witness also said he saw Bonnell at the gate of a house that Bonnell said was his house. Where his family, if any, were does not appear. On the 7th 6f October, 1867, Bonnell and wife, by attorney, executed to plaintiff a deed of the premises in question. In this deed Bonnell and wife are described as of Pithole, Pennsylvania. This is all the evidence on the subject of the non-residence of Bonnell in July, 1865. We think the trial court was justified in declining to find that Bonnell, at the time of the assessment, was non-resident. No other ground for attacking the assessment is presented by the evidence.

Second. By section 14 of title 5 of the charter referred to, it was provided that any owner of land sold for taxes might, at any time after the sale, redeem the same by paying to the purchase:^ or to the city clerk for his benefit, the amount paid by him, with the addition of twenty per cent per annum on such [amount, and any expenses incurred by him and allowed under the act; that “ at any time after twelve months after the sale of any parcel of land for any tax or assessment, the purchaser, his representatives or assigns, shall give notice to the owner, requiring him to redeem the premises in three months thereafter by making the payment above required.” The manner of service of this notice was then provided for, and in case the owner did not redeem within the time, his right of redemption was thenceforth divested.

In the present case no notice to redeem has ever been given, and no one has redeemed the premises. The plaintiff has been owner since 1867. In the spring of 1888 the defendant Burt informed the plaintiff by letter that he held the certificate, and stated the amount necessary to be paid in order to redeem; and no evidence was given •showing that plaintiff prior to that time had any information of such sale or tax. The claim of the plaintiff is that more than twenty years having elapsed since Burt could have given the notice and acquired absolute title, unless redemption was made, the statute of limitations applies as a bar to the right of Burt, and that, therefore, the certificate should be canceled or Burt be enjoined from enforcing it. Assuming that the statute applies to such a case, it is not made clear how upon that basis the plaintiff is here entitled to relief. It was long ago said in the Court of Appeals that the statute of limitations was designed and could only be used as a shield and never as an affirmative, aggressive weapon, and that equitable relief could not be based on a presumption of payment wrought out by the statute. (Morey v. Farmers’ Loan and Trust Co., 14 N. Y., 302; Lawrence v. Ball, id., 477.) The same rule was laid down in Johnson v. Albany and Susquehanna Railroad Company (54 N. Y., 416.) The same principle would apply here.' Burt had a claim in the nature of a lien, apparently effectual till payment. The plaintiff in this action cannot take advantage of any presumption of payment under the statute. Relief in equity must be based on actual payment. But it is urged, on the part of plaintiff, that she can stand upon the idea of adverse possession under the principle laid down in Baker v. Oakwood (49 Hun, 416). As to that it is sufficient to say that the issue of adverse possession is not presented by the complaint and cannot be tried in this action.

It seems to us, therefore, without passing upon the effect of the lapse of time, that it cannot be used by the plaintiff as a basis for equitable relief. It follows that the complaint was properly dismissed, and the judgment should be affirmed, with costs.

Hardin, P. J., concurred.

Martin, J.:

I concur in the result on the ground that the plaintiff’s cause of action was founded solely on the alleged illegality of the proceeding, which resulted in the certificate sought to be set aside, and the evidence was insufficient to justify a recovery thereon.

Judgment affirmed with one bill of costs.


author: Merwin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK v. E. REMINGTON & SONS. In the Matter of the Claim of the ONEIDA NATIONAL BANK, Appellant.

      Proof of claim against am, insolvent corporation— the original debt, and, also the amount of other obligations of the corporation given by it as security for the payment of the original debt, cannot both be proved,.

    The Oneida National Bank held obligations against the corporation of E. Remington & Sons, upon some of which other parties, the Remington Agricultural Company and E. Remington, were also liable, amounting on their face to $48,077.50, which claims the bank was allowed, without objection, to prove before a referee appointed, after the appointment of receivers of the corporation, to take proof of claims against it.
    The bank also held, as collateral security to such obligations of the corporation, and also of the obligations of the other parties who were liable with it, coupon notes, so-called, made by E. Remington & Sons, to the amount of $45,600, which the bank claimed the right to also prove as debts against that corporation. This claim to the amount, that other parties than the corporation were liable upon the paper representing the obligations, was allowed by the referee, but was disallowed by the court at Special Term.
    Upon an appeal from an order sustaining certain exceptions taken by the receivers to the report of the referee thus- appointed to take proof of claims against the corporation:

      Sell, as the coupon notes carried with them no lien on the property of the corporation, that the bank should not be allowed to prove the amount of such coupon notes, .in addition to the debts for which they were held as collateral; that this would, in effect, be proving the actual debts twice.
    That as the bank had once proved its entire debt, including the obligations upon which the Remington Agricultural Company and E. Remington were liable, it had no right to prove, in addition thereto, the coupon notes.
    Appeal by tbe Oneida National Bank of tbe city of Htica, creditor of tbe defendant corporation of E. Remington & Sons, from certain portions of an order granted at a Special Term, beld in Onondaga county, wbicb was entered in tbe office of tbe clerk of Herkimer county on tbe 5tb day of June, 1889.
    Tbe defendant “ E. Remington & Sons ” was a manufacturing corporation, organized in 1861. On tbe 21st April, 1886, it was insolvent, and at tbat date, in an action brought for its dissolution, temporary receivers of its property and effects were duly appointed, and on the 5th of June, 1886, judgment was entered in the action dissolving the corporation and making the receivership permanent.
    On the 21st of April, 1886, the Oneida National Bank held obligations against the corporation amounting, at their face value, to $43,077.50 which represented actual debts. Of this sum there were drafts drawn by E. Remington & Sons upon its New York house and indorsed by Philo Remington —
    Amounting to.................................. $26 j 477 50
    Note made by the “Remington Agricultural Company,” and indorsed by E. Remington & Sons and by Philo Remington.......................... 3, 500 00
    Note of Philo Remington, indorsed by E. Remington & Sons..................................... 7 500 00
    Notes and checks of E. Remington & Sons upon which neither the Remington Agricultural Company nor Philo Remington were parties.......... 5,600 00
    Total........'.............................. $43, 077 50
    These claims the bank was allowed to prove before the referee without objection. The bank also held as collateral security coupon notes, so-called, made by E. Remington & Sons to the amount of $45,600. These the bank claimed also the right to prove as debts against E. Remington & Sons. The referee allowed the claim, but at Special Term it was disallowed. These coupon notes came to the bank in the following manner: On the 27th of January, 1880, the bank held, as collateral security for certain paper, coupon bonds of the corporationE. Remington & Sons to the amount of $45,600, which were secured by mortgage executed by E. Remington & Sons to trustees, and covering certain real estate and other property of the corporation. At that date, at the request of the bank, E. 'Remington & Sons executed and delivered to it an instrument in writing certifying “ that any collaterals you now have in your possession are considered by us as a continuous security for any paper made by us or any drafts drawn by us upon our customers, or any indorsements made by us on paper discounted by you. In other words, it is intended that you hold all collaterals as a security, not only for the old loan but any other loan you have made or may hereafter make to us.” From the 27th of January, 1880, to May 28, 1883, the hank continued to hold these bonds as such collateral. The original amount of bonds under the mortgage was $900,000, but they were not all issued, and on the 28th of May, 1883, the amount outstanding was about $400,000. In November, 1882, the corporation, finding itself embarrassed by the lien of the mortgage, proposed to the bondholders, including the bank, to cancel and retire the bonds and the mortgage and to take and accept in lieu thereof notes of the corporation for a like amount, having interest coupons attached, the notes to be dated November 1, 1882, and payable May 1, 1890, with interest semi-annually. This proposition was accepted and the bonds and the mortgage were canceled and coupon notes taken in lieu thereof.
    The scheme also contemplated the funding, by two-thirds of the unsecured creditors, of their indebtedness, in said coupon notes, which was also done. The agreement which was signed by the bondholders also provided that the stockholders of the corporations should assign $900,000 of the stock to certain persons in trust to hold as collateral security for the payment of the coupon notes, and with full power to vote at meetings of stockholders. The total stock of the corporation was $1,000,000. At the time the bank signed the agreement and surrendered its mortgage bonds E. Remington & Sons, the Remington Agricultural Company and Philo Remington executed and delivered to it an instrument in writing, dated May 28, 1883, reciting that the bank had from time to time discounted notes and other commercial paper of and for E. Remington & Sons and the Remington Agricultural Company, more of less of the paper being indorsed by P. Remington, and that the bank then held and for some time had held, as collateral security for said notes or other evidences of debt, mortgage bonds of E. Remington & Sons which the said parties desired to have the bank surrender for coupon interest notes of E. Remington & Sons for the same amount, and thereupon requesting the bank to deliver up the mortgage bonds “and hold as unconditional collateral security for any and all indebtedness of whatsoever character of E. Remington & Sons, or the Remington Agricultural Co., or Philo Remington, without regard to who the said paper has been discounted for, the above mentioned interest coupon notes in the place of and for the same purposes as you have heretofore held the above-named mortgage bonds, and this shall be your voucher for the surrender of the said mortgage bonds.” Upon the delivery of this instrument, the bank surrendered its bonds and received coupon notes to the same amount, $45,600, which it has since held under said instrument, and they are all unpaid.
    The Remington Agricultural Company was a partnership composed of Philo Remington, Samuel Remington and Eliphalet Remington, who also held stock of E. Remington & Sons to the amount of $900,000. All of the stockholders and trustees of E. Remington & Sons had knowledge of the proposed general exchange of the mortgage bonds for the coupon notes, and of the proposed general object of such exchange, and the coupon notes were issued with their knowledge, consent and direction, and. pursuant to resolution of the trustees to that effect, dated November, 22, 1882. It appeared that the bank in the negotiations for the exchange made it a condition that the coupon notes should be held by it as collateral security not only for obligations of E. Remington & Sons, but also for obligations of the Remington Agricultural Company and Philo Remington.

      F. G. Finche, for the Oneida National Bank, appellant.

      Thomas Richardson, for the receivers, respondents.
   Merwin, J.:

It will be obsexwed that E. Remington & Sons are liable xxpon all the obligations representing the actual debts, making up the aggx-egate of $43,077.50, held by the bank and proved, without objection. Such liability to the extent of $11,000 is as indox’ser and on the balance as maker.

The Remington Agricultural Company and P. Remington are neither of them liable on $5,600, they are liable, one or the other, on the balance. The referee held that the coupon notes of the coi’poration did not constitute a valid security for the payment of its own indebtedness and applied this rule to the $5,600. He also held that they did constitute a valid security for the liabilities of the Remington Agricultural Company and P. Rexnington on the balance of the claims of the bank, and could be proved by the bank, as such, in addition to the amount of the claims themselves. The ruling as to, the $5,600 was acquiesced in by the bank. The ruling as to the other was excepted to by the receivers and this exception was sustained by the Special Term. So that the question is, can the bank, by reason of its holding the coupon notes as collateral security for any obligations against the Remington Agricultural Company or P. Remington, prove the amount of such notes in addition to the debts for which they are held as collateral % This would) in effect, prove the actual debt twice. The coupon notes carried with them no lien on the property of the corporation. There was an arrangement by which certain stock of the corporation was to be held as collateral, and which, perhaps, by the opportunity which it gave to control the management of the corporate business, furnished a consideration or object for the exchange of mortgage bonds for coupon notes. Whatever benefit there was in this might be realized by the holder of such notes as collateral. He would, however, have no claim on the property of the corporation beyond the amount of his actual debt. The coupon notes were only personal obligations. The bank had certain obligations against the insolvent corporation, partly as maker and partly as indorser, which it has proved for the full amount of its debt. It has another form of obligation against the same corporation for the same debt. This does not increase, as against other creditors, the amount of the indebtedness. Being once proved the right of the claimant in that regard is exhausted. It is not a question as to the adjustment of specific liens, but simply to ascertain the amount, in fact, of the debts of the corporation, preparatory to a “ just and fair distribution of the property of the corporation, and of the proceeds thereof, among its fair and honest creditors.” (Code Civ. Pro., § 1793.) As said in Third National Bank v. Eastern Railroad (122 Mass., 242), “ a debtor’s liability to his creditor, where other creditors are concerned, is not increased by increasing the number of his promises to pay the same debt, in whatever form he may make them. To hold otherwise would be to enable the debtor to incumber his assets by a new method, greatly to the prejudice of all other creditors.”

We think that the appellant, having once proved its entire debt, including the obligations upon which the Remington Agricultural Company and P. Remington were liable, has no right to prove, in addition thereto, the coupon notes. The receivers attack the right of the bank to prove the coupon notes on the further grounds (1) that the bank had no right, in the consummation of the exchange of the mortgage bonds for the coupon notes, to stipulate that it might hold these notes as collateral for the debts of other parties, and thereby obtain an advantage to itself over and above what the others had under the agreement; and, (2), that such agreement on the part of the defendant corporation was ultra vires, it not appearing that all the stockholders assented. In view of the conclusion upon the other aspect of the case, it is not necessary to discuss those propositions.

It follows that the order appealed from should be affirmed.

Martin, P. J., and Parker, J. concurred.

Order affirmed, with ten dollars costs and disbursements, to be paid by the appellant.


text:
    THOMAS J. ROLLINS, as Game Constable of the Town of McDonough, New York, Respondent, v. MERRITT BREED, Appellant.

      Mshiny out of season — the imposition of afine in a criminal prosecution is riot a ben' to a civil action for a penalty.

    Section 21 of chapter 534 of the Laws of 1879, as amended by chapter 619 of 1887, forbids the catching of black bass in any waters of the State between January first and May thirteenth, and provides that “any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and, in addition thereto, shall be liable to a penalty of ten dollars for each fish;” that all penalties imposed by the act may be recovered by any person in his own name, and that any judgment recovered can be enforced by execution against the person of the defendant; that any person who shall be found guilty of a misdemeanor, under any of the provisions of the act, shall be punished by a fine or by imprisonment in the county jail or penitentiary, or by both such fine and imprisonment, in the discretion of the court.
    In an action, brought to recover penalties for catching black bass in Genegantslet lake, in violation of said act, a judgment was rendered by a justice of the peace imposing a penalty of ten dollars; although it appeared that upon the same date that the summons in the action was served the defendant was arrested upon a warrant issued by the same justice, upon the complaint of the game constable, for a misdemeanor for a violation of the said act; pleaded guilty and was fined five dollars, which he paid.
    The defendant claimed that criminal prosecution was a bar to the recovery of the penalty.

      Held, that the enforcement of the fine, upon the conviction of a misdemeanor, was not a bar to the recovery of the penalty in a civil suit.

      People v. Stevens (13 Wend., 341) followed; United States v. McKee (4 Dillon, 128); Coffey v. United States (116 U. S., 436) distinguished.
    Appeal by the defendant from a judgment of the Chenango County Court, in favor of the plaintiff, which was entered in the office of the cleric of the county of Chenango on the 14th day of June, 1889, affirming a judgment rendered by a justice of the peace of Chenango county.

      George W. Marvin, for the appellant.

      James W. Glover, for the respondent.
   Merwin, J.:

By section 21 of chapter 534 of the Laws of 1879, as amended by chapter 619 of 1887, it is provided, among other things, that between the first day of January and the thirteenth day of May, no person shall catch or kill any black bass in any waters of the State, excepting certain named localities not important here, and that “ any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of ten dollars for each fish.” By section 33 it-is provided that all penalties imposed by the act may be recovered by any person in his ■ own name, and any judgment recovered. be enforced by execution against the person. By section 34 it is pro" vided that any person who shall be found guilty of a misdemeanor under any of the provisions of the act, “ shall, upon conviction, be punished by a fine of not less than five dollars, nor more than at the rate of one dollap for every dollar of the penalty provided by the section so violated when the same exceeds five dollars, or by imprisonment in the county jail or penitentiary for a period of not less than five days, nor moi’e than at the rate of one day for every dollar of any such penalty, or by such fine and imprisonment, in the discretion of the court.” Provision is made by section 38 for the election of game constables, and it is made their duty, after reliable information, to prosecute all violators of the act; and they are to receive a compensation for such services, the' same as is allowed by law for like services to constables of towns, and also one-half of all penalties recovered.

In the present ease the justice rendered a judgment for a penalty of ten dollars. The evidence warranted the conclusion of the justice that the defendant had violated the act, and, therefore, was liable for the penalty, unless there was something else that would relieve him. In this view it was alleged and shown that, upon the same day that the summons in the action was served, the defendant was arrested upon a warrant issued by the same justice upon complaint of the game constable, for a misdemeanor for a violation of the act referred to, being the same acts complained of in the action for the penalty ; that on such warrant the defendant was brought before the justice and plead guilty and was fined five dollars, which he paid. The claim of the defendant is that this criminal prosecution is a bar to the recovery of the penalty. To uphold this claim, the case of United States v. McKee (4 Dillon, 128) is mainly relied on. That was an action based on section 3296 of the United States Revised Statutes, to recover the penalty of double the amount of taxes on distilled spirits, out of which the plaintiff alleged it was defrauded by means of conspiracy entered into for that purpose by the defendants and others for the unlawful removal by the distillers of said spirits without the payment of taxes.

The defendant plead that he had been indicted, convicted and punished for the same offense under section 5440 of the Revised Statutes, being sentenced to pay a fine of $10,000 and to imprisonment for two years. He also plead a pardon. Upon demurrer the pleas were held good, it being said that if the specific acts of removal on which the suit is brought are the same which were proved in the indictment, the former judgment and conviction is a bar. Section 5440 is a general provision applicable to any conspiracy to commit any offense against the United States, or to defraud the United States in any manner, and making all the parties to the conspiracy hable to a penalty of not less than $1,000 and not more than $10,000, and to imprisonment not more than two years. Section 3296 is specific, having reference to the removal, contrary to law, or concealment of any distilled spirits on which the tax has not been paid, and provides for a penalty of double the tax imposed and a fine of not less than $200 or more than $5,000, and imprisonment not less than three months, nor more than three years. The McKee case was referred to in Coffey v. United States (116 U. S., 436), where it was held that a. judgment of acquittal on a criminal information against the defendant, based on certain sections of the Revised Statutes, was conclusive in favor of the defendant in an action brought under the same section for the forfeiture of certain goods, the same violations of law being alleged in both. It was an adjudication of the innocence of the defendant.

The McKee case differs somewhat from the present one. There there were two separate statutes, each furnishing a complete remedy for the charge. The government chose to enforce one and it might be well said that a conviction and punishment under that ended the right of the government. Here there is but one statute and the complete remedy contemplated by it includes the penalty as well as the punishment as for a misdemeanor. A similar provision is in many of our State statutes, notably in the excise acts. (Chap. 628 of 1857; 1 R. S., tit. 9, chap. 20, pt. 1.) The latter act provided for specific penalties for divers violations, and also provided (§ 25) that all offenses against the provisions of the title should be deemed misdemeanors punishable by fine and imprisonment. The People v. Stevens (13 Wend., 341) was the case of an indictment against the defendant under that statute for selling strong or spirituous liquors in quantity less than five gallons, to be drank at his house, without having a license as a tavern-keeper. The defendant plead in bar that he had been previously sued for the same offenses by the overseers of the poor in an action of debt for the penalty given by the statute, in which suit judgment was rendered against him for twenty-five dollars and costs, which he had paid. This was held to be no defense. The court said: It is, undoubtedly, competent for the legislature to subject any particular offense, both to a penalty and a criminal prosecution; it is not punishing the same offense twice. They are but parts of one punishment; they both constitute the punishment which the law indicts upon the offense. That they are enforced in different modes of proceeding, and, at different times, does not affect the principle. It might as well be contended that a man was punished twice, when he was both fined and imprisoned, which he may be in most misdemeanors.” In Blatchley v. Moser (15 Wend., 215) it was held that an indictment, under the twenty-fifth section above referred to, for selling spirituous liquors without a license as a tavern-keeper, is no bar to an action for the penalty given by the statute in such a case, it being said by Savage, Ch. J., that the offender is liable, under both sections, in the same manner that a person guilty of an assault and battery is liable to the individual and to the public. (See, also, People v. Brown, 16 Wend., 561.)

In People v. Shea (3 Parker, 562), the power of the legislature to punish an act as a misdemeanor, in addition to imposing a penalty, is recognized, and so it was, impliedly, in Behan v. The People (17 N. Y., 516); Foote v. The People (56 id., 321); The Mayor, etc. v. Hyatt (3 E. D. Smith, 156); People v. Waterbury (44 Hun, 496). In Morris v. The People (2 T. & C., 219), it is said by Justice Platt Potter that it is well settled that offenses under the excise act were misdemeanors and indictable, notwithstanding the offender may have been sued in a civil action and the penalty collected.

The rule laid down in People v. Stevens seepis to be well established and is directly applicable to the present case. Hnder that rule, the enforcement of either branch of the punishment or remedy would be no bar to the enforcement of the other. It follows that the judgment appealed from is correct, and should be affirmed.

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

Judgment of the County Court of Chenango county, affirming a justice’s judgment, affirmed, with costs.


author: Merwin, J. :

text:
    CHARLES F. STEVENS, Respondent, v. CARRIE T. STEVENS, Appellant.

      Action for divorce on the ground of adultery — evidence showing indiscretions with other men than those named in the complaint, incompetent — limit of the testimony which may he given hy the defendant.

    In an action for an absolute divorce evidence was admitted upon the trial, against the objections and exceptions of the defendant, the wife, showing indiscretions of the defendant with other men than those with whom adultery was charged in the complaint. It was claimed by the plaintiff that the evidence of the acts of the defendant with other parties was competent “with a view of showing a lustful disposition.”

      Held, that the evidence was not admissible.
    The defendant was called as a witness in her own behalf and gave evidence, under the privilege conferred by section 831 of the Code of Civil Procedure, permitting the party, in such case, to “disprove the allegation of adultery.” After she had testified in detail, denying specifically all the acts of adultery indicated by the evidence offered on the part of the plaintiff, she was asked as to certain circumstances which it would have been competent and material for her to testify to, provided there was no limit upon her right to testify on the issue of adultery. The evidence was excluded by the referee upon the ground'that, under the circumstances referred to, a party could not testify to affirmative facts

      Held, that the Code did not limit the evidence to a denial simply, but gave the right generally “to disprove the allegation of adultery,” to show that the allegation was not true; and that the defendant could not only deny, but could testify to, any fact or circumstance, within her knowledge, competent and material on the question as to whether the act as charged was committed.
    Appeal by tbe defendant to tbe General Term of tbe Supreme Court, upon questions of law and upon the facts, from a judgment recovered at a Special Term, held in Tompkins county, after a trial before a referee, which was entered in the office of the clerk of Chemung county on the 11th day of December, 1888, in favor of the plaintiff.

      G. L. Smith, for the appellant.

      II. II. Hoclcwell, for the respondent.
   Merwin, J. :

Upon the trial evidence was admitted, over the objection and exception of defendant, showing indiscretions of defendant with other men than those with whom adultery was charged in the complaint. The appellant claims that this ruling was erroneous. This claim is supported by the case of Beadleston v. Beadleston (20 N. Y. State R., 21; S. C., 2 N. Y. Supp., 809), where it was held that such evidence was inadmisible, it being said by Justice Daniels that evidence as to other specific misconduct, not relating to the particular charges in the complaint, was not proper, and had no tendency whatever to establish those charges. A like view was entertained by the court in McDermott v. State (13 Ohio St., 334), where it is said: “ It by no means follows that a desire to have sexual intercourse with one person tends, legitimately, to prove a willingness to have like intercourse with another and different person. Indeed, the reverse is much the most probable, but, however this may be, the introduction of such proof is opposed to the well settled rules of evidence.” So in Washburn v. Washburn (5 N. H., 195), it was held that evidence as to the unchaste character of the defendant was inadmissible, and that evidence showing improper conduct with other men not named in the complaint did not corroborate the confessions of defendant that she had committed adultery with the person charged. The defendant’s character is said not to be in issue. (Humphrey v. Humphrey, 7 Conn., 117; Lockyer v. Lockyer, 1 Edm. Cas., 107.) It is, however, claimed by plaintiff that the evidence of acts of defendant with other parties is competent with a view of showing a lustful disposition. Upon this theory apparently it was received, following the views of 3VIr. Bishop in his work on Marriage and Divorce (vol. 2, § 625.) That was said to be the doctrine of the English Ecclesiastical Court, and the cases of Forster v. Forster (1 Haggard’s C. R., 144; Soilleux v. Soilleux (1 id., 373) were cited. The Forster case was for a divorce, brought by the husband against the wife, on the ground of adultery, in which recrimination was plead in bar. The question was whether this plea was sustained, and in this view the conduct of the husband with other parties was considered as having a bearing by way of corroboration. In the Soilleux case the suit was against the husband, and the conduct of the defendant with others than the person charged was in. the case and deemed important. In neither of these cases was the admissibility of such evidence specially considered. In New Jersey such evidence was considered material in Derby v. Derby (21 N. J. Eq., 36, 60), though in the case cited there was a general allegation under which it would have been admissible as relating to guilty conduct with persons unknown. The trouble, it seems to me, with the evidence is that it goes outside of the issues made by the pleadings, and in effect presents new allegations that the other side is not expected to be able to meet. Acts of adultery not charged cannot be proved. (Germond v. Germond, 6 Johns. Ch., 347.) The same principle would exclude evidence of conduct leading towards such acts or indicating a willingness to commit such acts, or, in other words, a lustful disposition. I think the evidence was not admissible.

The defendant was called as a witness in her own behalf, and gave evidence under the privilege given by section 831 of the Code of Civil Procedure, permitting a party in such a case to “disprove the allegation of adultery.” After she had testified in detail denying specifically all the acts of adultery indicated by the evidence on part of plaintiff, she was asked as to certain circumstances which it would have been competent and material for her to testify to, provided there was no limit upon her right to testify on the issue of adultery. This was excluded by the referee, and the ruling is sought to be justified on the ground that, under the section referred to, a party cannot testify to affirmative facts. The Code does not limit the evidence to denials simply. It gives the right generally “ to disprove ” the allegation of adultery, tó show that the allegation is not true. The plaintiff charges that a certain act was committed; the defendant not only can deny but she can testify to any fact or circumstance, within her knowledge, competent and material on the question whether the act as charged was committed. In this way only can the expresssion “ to disprove ” be given its ordinary meaning.

There is nothing to show that the legislature intended any other result. I think the ruling in this regard was erroneous. The evidence on the part of the plaintiff was circumstantial. The ruling above discussed cannot fairly be deemed immaterial. It follows that the judgment must be reversed.

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

Judgment reversed on the exceptions and a new trial ordered before another referee, costs to abide the event.


text:
    THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent, v. LINA T. COREY, JESSE G. COREY and WILLIAM B. COREY, Appellants.

      Notary public — certificate of acknowledgment taken, in fact, outside of Ms county, the venue being laid, within the county — he will not be deemed a subscribing witness— a “purchaser,” who is— mortgage defectively aclcnowledged valid in equity — cloud on title — statute of limitations — confidential communications to an attorney and notary.

    On November 15, 1873, William Gr. Corey executed, without consideration, a deed of a farm to his wife and four minor children. The deed was acknowledged in Tompkins county before one Osborne, who lived in and was a notary public for the county of Schuyler, the venue of his certificate of acknowledgment being laid in Schuyler county. The deed was recorded in Tompkins county on November 19, 1873.
    Subsequently, and in April, 1877, Corey brought an action to set aside this deed on the ground that it.was executed under a misapprehension of fact. After all of the defendants, had been served and had appeared and answered on the merits, it was stipulated to refer the case to a referee to hear and determine, and under this stipulation an order was entered, without the direction of the court, referring the case to a referee. The referee filed a decision, holding that the deed was invalid; upon which, on May 31,1877, judgment was entered setting aside the deed and declaring it to be void.
    On September 13, 1817, Corey borrowed of the defendant $5,000, and secured payment thereof by giving his bond, and a mortgage collateral thereto, the execution of which was acknowledged in Tompkins county before the same notary. The mortgage was recorded in Tompkins county on October 30, 1877; was subsequently foreclosed, the property sold, and a judgment for deficiency entered against Corey on February 3,1883, on which an execution was returned wholly unsatisfied.
    On July 9, 1881, the judgment of'May 31, 1877, holding that the deed was invalid, was set aside upon the ground that the order of reference was void because entered by stipulation instead of by direction of the court.
    On July 39, 1886, in an action brought by the mortgagee, the purchaser at the foreclosure sale, judgment was rendered, holding that the deed of November 15, 1873, was not properly acknowledged, and was invalid as against the plaintiff.

      Held, that the notary of Schuyler county had no power to take an acknowledgment in Tompkins county, and that, as this was a question of jurisdiction the certificate, though in form correct, might be rebutted.
    It was suggested on behalf of the defendants in that action that Mr. Osborne, the notary public, should he deemed a subscribing witness.

      Held, that as he did not subscribe his name to the deed as a witness of the sealing and delivery, his signature was only as a notary, and not as a witness.

      That the plaintiff, the purchaser at the foreclosure sale, was in a position to dispute the validity of the deed in question, as it was a purchaser within the meaning of the statute. (4 R. S. [8th ed.], 2451, § 137.)
    That, assuming that the plaintiff’s mortgage was defectively acknowledged, it was valid in equity, and that at the sale under the foreclosure thereof the plaintiff, as the purchaser, became entitled to the benefit of the statute.
    That the matter of notice was not material.
    That after the judgment óf May 21,1877, was set aside as to the present defendants, the deed of November 15, 1873^ was a cloud on the plaintiff’s title and it could maintain an action to remove it.
    That the right of action of the plaintiff was not barred by the statute of limitations as the action was commenced within ten years from the giving of the mortgage. The notary Osborne was called as a witness by plaintiff and testified that the deed was acknowledged at the house of the grantor. This was objected to by the defendants as inadmissible, under section 835 of the Code of Civil Procedure, as Osborne was an attorney and was employed by the grantor to draw the deed, and the testimony, it was claimed, necessarily involved the disclosure of a communication made by his client to him in the course of his professional employment.

      Held, that the witness, in stating the place where the acknowledgment was taken, did not disclose any communication made to him in the course of his professional employment as an attorney.
    That the imperfect deed had no effect, as against the plaintiff; that it was not a question of rescinding an instrument, but of its invalidity under the statute; that there was no estoppel under the covenants of warranty contained in it.
    Appeal by tbe defendants from a judgment, entered upon the decision of the court at the Tompkins Special Term, in the office of the clerk of that county on the 26th day of August, 1S89, setting aside a deed of conveyance of a farm situate in Tompkins county.
    On November 15, 1873, William G-. Corey, then being the owner of and living upon a farm of about 186 acres in the town of Ulysses, Tompkins county, executed a deed thereof to his wife and four minor children (being the three defendants herein and Hattie L. Corey) reserving to himself a life estate therein. It is found, by the court below, that no valuable consideration for this deed passed between the parties. It was drawn by one John W. Osborn, and subscribed and sealed by the grantor in his presence at the dwelling-house on the farm. Osborn lived 'in Schuyler county, and at that time was a notary public duly appointed, commissioned and authorized to act as such in the county of Schuyler. Oorey, after he signed the deed, and at his dwelling-house in Tompkins county, acknowledged the execution of it to and before Osborn, who then and there made and signed a certificate of acknowledgment in the usual form having for its venue Schuyler county.
    The deed was not otherwise attested ; there was no subscribing .witness as such. To this deed there was afterwards attached the ordinary certificate from the county clerk of Schuyler county certifying to the official character of Osborn and the genuineness of his signature, and the deed was thereafter, and on November 19, 1873, recorded in Tompkins county. In April, 1877, William G. Corey commenced an action in the Supreme Court, against all of the grantees named in the deed, to set it aside on the ground that he executed it while very sick, believing he was about to die, without consideration and upon the belief that he was executing a will and not a deed. The summons in the action was personally served on all the defendants and all appeared and answered, upon the merits, the children by guardian ad litem duly appointed. In May, 1877, the attorneys for all the parties stipulated to refer the case to a named referee to hear and determine, and upon this stipulation an order was entered, as, of course, and without the direction of the court, refering the case to such referee. The case was tried before the referee, the attorneys for all the parties appearing, and the referee afterwards made and filed his decision, holding that William G. Corey, when he executed the deed, was mentally incompetent to execute the same and did not know its purport and that it was void. On May 21,1877 a judgment was entered on this decision setting aside the deed and declaring it void.
    On the 12th of September, 1877, William G. Corey borrowed of the present plaintiff.$5,000, giving therefor his bond dated that day, and, as collateral thereto, he and his wife Mary L. Corey executed, sealed and delivered to the plaintiff a mortgage on the said premises. This mortgage they acknowledged at their residence in Tompkins county before John W. Osborn, who then lived in Schuyler county and was a notary public for that county. The mortgage was recorded in Tompkins county October 20, 1877. Default having been made in the payment of this mortgage, the plaintiff, on February 10,1880, commenced in the Supreme Court an action to foreclose it. The mortgagors, William G. Corey and Mary L. Corey, were made defendants, together with subser¿uent incumbrancers. The mortgagors defended but tbe plaintiff recovered judgment of foreclosure against all the defendants November 9, 1881, upon which the premises were, on the 23d of December, 1881, sold to the plaintiff and the usual referee’s deed on foreclosure given, which was recorded January 9, 1882. The sale was duly confirmed. There was upon the sale a deficiency of $3,296.24, for which a judgment was entered February 3, 1882, against William Gr. Corey and thereafter an execution thereon was returned wholly unsatisfied. William Gr. Corey and the grantees in the deed of November 15, 1873, were then living together as a family upon the premises, and so continued to about January 25, 1882, when the plaintiff entered into possession and has since so continued. On the 2éth of April, 1880, the defendants herein and Hattie L. Corey moved for an order setting aside the judgment of May 21, 1877, upon the ground that the order of reference was void because entered by stipulation instead of by direction of court as required by section 1012 of the Code of Civil Procedure. Upon this motion an order was duly entered July 9,1881, setting aside the said judgment and all proceedings subsequent to the joining of issue, as to these defendants. As to Hattie L. Corey, she being then of full age, the payment by her of certain disbursements was made a condition to setting aside the judgment. These she did not pay.
    The present action was commenced July 29, 1886. The Special Term held that the deed of November 15, 1873, was not properly acknowledged or attested, and was not valid as against plaintiff, and directed judgment of cancellation.

      John J. Van Allen and William N Noble, for the appellants.

      E. F. Babcock, for the respondent.
   Merwin, J.:

It is claimed by the appellants that the deed of.November 15, 1873, was properly acknowledged, although before a notary public outside of his own county. The argument is that the general provision of the Revised Statutes (1 R. S. [8th ed.j, 379, § 11), that notaries public may execute the duties of their office at any place within the State, applies to their power in taking acknowledgment of deeds. It was held to the contrary in Matter of Utica and Black River Railroad Company v. Stewart (33 How., 312) and in People v. Globe Mutual Life Insurance Company (65 id., 239).

By the Revised Statutes it was provided that notaries public might be appointed in each of the counties of the State ; that they should reside in the respective counties for which they should be appointed, and might execute the duties of their office at any place in the State, and certain powers were given to them (3 R. S. [8th ed.] 2645), which did not include the power to take affidavits or acknowledgment of deeds. By chapter 360 of 1859, it was provided that notaries public, “ in addition to their present powders,” should have authority to administer oaths and affirmations and take the proof and acknowledgment of deeds and mortgages “in all the cases where the same may now be taken and administered by commissioners of deeds, and under the same rules, regulations and requirements prescribed to commissioners of deeds.” ' By chapter 508 of 1863, it was provided that “ notaries public shall have all the powers now conferred upon them by law, and shall also have power to take affidavits and certify to the same, and to take and certify the acknowledgment and proof of deeds and other instruments in writing in all cases where justices of the peace or commissioners of deeds may now take and certify the same.”

By chapter 703 of 1872, power was given to the notaries public of the counties of New York and Kings - to act in either county. A similar right was given to any notary of several other counties (not including Schuyler) by chapter 807 of 1873, upon filing a certified copy of his appointment, with his autograph signature in the clerk’s office of the counties other than where he resided. By chapter 270 of 1884, any notary is authorized to act in an adjoining county, upon filing certain certificates in the clerk’s office of such county.

It is thus quite apparent that the legislature acted upon the supposition that the general power originally given to notaries did not authorize them to exercise their subsequent powers in all parts of the State. Yery clearly it was the intention of the act of 1859 to confer no greater powers than commissioners of deeds then had. and such powers were then, by law, limited- to the county of the appointment. Neither that act or the one of 1863 (chap. 508) conferred any general power like the one conferred originally on notaries, but it was limited to the cases in which commissioners of deeds or justices of the peace could act. It was not the general power to take affidavits and acknowledgments, but a power to take ■“ in the cases ” where the other officers could take. This, necessarily, had the same territorial limitation. We are, therefore, of the opinion that the notary of Schuyler county had no power to take the acknowledgment in Tompkins county. This is a question of jurisdiction, the certificate, though in form correct, may be rebutted. (Thurman v. Cameron, 24 Wend., 87; Sandland v. Adams, 2 How. Pr., 127.) But it is suggested in behalf of the appellants that Mr. Osborn, the notary public, should be deemed a subscribing witness. He did not, however, sign as such. His signature is only as notary, and at the end of the certificate of acknowledgment. He did not subscribe his name to the deed - as a witness of the sealing and delivery.

In Hollenback v. Fleming (6 Hill, 303), a subscribing witness is defined to be one who was present when the instrument was executed and who at that time subscribed his name to it as a witness of the execution. A subscribing witness attests the delivery as well as the signing. In that respect it goes farther than the acknowledgment. We think the notary was not a subscribing witness.

The plaintiff is in a position to dispute the validity of the deed in question. It is a purchaser or incumbrancer within the meaning of the statute. (4 R. S. [8th ed.], 2451, § 137.) Assuming that the plaintiffs mortgage was defectively acknowledged, it was valid in equity (Payne v. Wilson, 74 N. Y., 348) and upon the foreclosure sale the plaintiff became a purchaser entitled to the benefit of the statute. The matter of notice was not material. (Chamberlain v. Spargur, 86 N. Y., 603.) After the judgment of May 21,1877, was set aside as to the present defendants, the deed of November 15, T873, was a cloud on plaintiff’s title, and it could maintain an action to remove it. (Remington Paper Co. v. O’Dougherty, 81 N. Y., 474, 483.)

That judgment not having been set aside as to Hattie L. Corey, she was not a necessary party defendant. Her rights, if any, would not be affected. The right of action of plaintiff is not barred .by the statute of limitations. The action was commenced within ten years from the giving of the mortgage. In Miner v. Beekman, (50 N. Y., 343) it was said that the owner of the fee had a right to bring an action to remove a cloud at any time during its existence.

The notary Osborn was called as a witness by plaintiff and testified that the deed was acknowledged at the house of the grantor. This was objected to in time as inadmissible under section 835 of the 'Code of Civil Procedure. Mr. Osborn was an attorney, and was employed by the grantor to draw the deed. It is claimed that the testimony objected to necessarily involved a communication made by his client to him in the course of his professional employment. The act of the attorney in drawing the deed is one thing, the act of the notary in taking the acknowledgment is another. Ooncededly an acknowledgment was taken. The witness in stating the place where it was taken did not disclose any communication made to him in the course of his professional employment as an attorney. The appellants claim the equities of the case are with them. This is not made clear. The coiu’t below, upon sufficient evidence, found that the deed of 1873 was without value or consideration. The grantor in 1877 obtained a judgment setting it aside. Before this judgment was set aside, and while the title of "William G. Corey was apparently clear, and he was in possession, the loan is made from plaintiff, and the mortgage given. The plaintiff, as far as the case shows, had no actual notice of any irregularity in the recovery of the judgment. It is doubtful whether it had constructive notice as the judgment was probably not void but voidable. We are, however, not required to pass upon the respective equities. The imperfect deed had no effect as against plaintiff. It is not a question of rescinding an instrument, but of invalidity under the statute. There was no estoppel through its covenants of warranty. (Chamberlain v. Spargur, supra.)

It follows that the judgment must be affirmed, with costs,

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

Judgment affirmed, with costs.