author: Russell, J.:

text:
    The People of the State of New York ex rel. The General Electric Company, Respondent, v. Edward P. Barker and Others, Commissioners of Taxes and Assessments of the City and County of New York, Appellants.

      Taxation ■ — corporation — location of its principal office or place of business.

    Upon a return to a writ of certiorari issued to review an assessment of the property of the General Electric Company for the year 1894 it appeared that the relator was created by a special act of the Legislature; that its by-laws provided that its principal place of business should be in the city of Schenectady, but that there should be an office or place of business in the city of New York; that no change hadbeen made in the principal place of business, except that in the spring and summer of 1893 the general executive and financial business, and before November, 1893, the securities of the corporation, were transferred to Boston; that none of the principal officers of the company were, after October 1, 1893, residents of the State of New York; that the manufacturing business of the company was carried on in Schenectady; that the branch office in New York city was subsequently removed to Schenectady, leaving in New York city only a selling agent, and that the meetings of stockholders had always been held at Schenectady.

      Held, that the principal office or place of business for transacting the financial concerns of the company was at Schenectady; that it was taxable there, and that the taxing authorities of the county of New York had no jurisdiction to ssess the company for the purposes of taxation.
    Appeal by Edward P. Barker and others, as commissioners of taxes and assessments of the city and county of New York, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of April, 1895, as provides as follows :
    “ It is ordered and adjudged that the proceedings and adjudication of the said commissioners, in regard to the assessment for taxation for the year 1894, of the relator, upon its personal property and capital stock, are wholly illegal and void, and that said proceedings and adjudieation be, and the same are hereby wholly reversed, vacated and set aside; and it is further
    “ Ordered and adjudged that the said assessment for taxation for the year 1894, against the relator, upon its personal property and capital stock, be and it is hereby wholly vacated and set aside, and it is hereby directed that the same be stricken from the assessment, and that the name of the relator, the General Electric Company, be stricken from the£ Annual Record of the Assessed Yaluation of the Real and Personal Estate’ in the city and county of New York; and it is further
    ££ Ordered that any and all tax and taxes levied or assessed against the said relator upon, or based upon, said assessment of its personal property and capital stock, for the year 1894, be wholly vacated and set aside and stricken from the roll; and it is further

      “ Ordered that the said commissioners of taxes above named forthwith make and do all and every act or acts necessary for the complete carrying out of the provisions of this order.”

      James M. Ward, for the appellants.

      William B. Putney and Henry B. Twombly, for the respondent.
   Affirmed on opinion of the Special Term, with costs.

Present- — -Yak Brunt, P. <L, O’Brien and Follett, JJ.

Order affirmed, with costs, on opinion of Special Term.

The opinion of the Special Term was as follows :

Russell, J.:

The commissioners assessed the relator for the year 1894 at the sum of $9,TT6,934. A warrant is out for the collection of the taxes based upon this assessment to the amount of about $163,000. The relator procured a certiorari to review the assessment. A return was made, some evidence taken upon the hearing at Special Term and the inquiry presents these two questions for solution :

First. Had the tax commissioners the right to embrace the relator within their jurisdiction and assess the value of its capital stock ?

Second. If they had this right was their assessment plainly and clearly excessive ? ■

In the view taken by this court, the solution of the first question renders inquiry into the second unnecessary.

The relator was created by special act of the Legislature of this State (Chap. 323 of the Laws of 1892) and was organized in April, 1892. The by-laws provide that the principal place.of business shall be in the city of Schenectady in the county of Schenectady and State of New York, but that there shall be an office or place of business in the city of New York, and in such places in the State of New York as the board of directors may determine.

The tax commissioners for New York city assessed the stock of the company in the assessment upon which the taxes for 1893 were to be collected, the relator protesting against its liability to taxation and the amount of the assessment, but finally remaining quiescent under an assessment in New York city of the same amount as the assessment to review which this writ of certiorari was issued. The commissioners, in making the assessment for 1891, had the undoubted right to consider the inquiries made by them in making-the assessment for 1893, although it was their duty to make still further inquiries in view of the greatly changed conditions of the financial world from the spring of 1893 to the spring of 1891, and in view also of the possibility of a changed situation of the financial place of business or the base of operations of the company.

For the year 1891, upon the assessment made between the first Monday of September, 1893, and the second Monday of January, 1891, the tax commissioners assessed the personal property of the relator in the sum of $50,000,000. The relator appeared and contested the legality of such assessment upon the grounds referred to, viz., want of jurisdiction to assess at all in New York county, and, secondly, excessive valuation, and furnished some proof which is substantially uncontradicted, except it may be by the knowledge or information acquired by the tax commissioners in the proceedings for the assessment of 1893, and this possible contradiction applies mainly to the issue of excessive valuation.

By the affidavit of Vice-President Ord, of the electric company, it appears that the relator’s principal place of business at Schenectady, as provided by the by-laws, has never been officially changed by action of the directors, except that prior to the 1st of October, 1893, the general, executive and financial business theretofore being done at New York city was transferred to Boston, the accounting department being transferred in June, 1892, and the treasurer’s and secretary’s departments a few months later, and that all the securities, including the stocks and bonds of the company, were, before the 1st day of October, 1893, taken to the city of Boston and there put in the custody of the vice-president, Ord. The meetings of the board of directors were thereafter held in Boston, and none of the principal officers of the company, after October 1, 1893, were resident in the State of New York. The manufacturing business of the company was carried on in Schenectady, and the branch office formerly in New York was removed to Schenectady, leaving in the city of New York only a selling agent doing business under the designation of “the eastern district.” The stockholders’ meetings have always been held in Schenectady.

Upon these facts the question of law arises, to which of the two counties of the State of New York (New York or Schenectady) the right to assess the personal property of the. company should be given. The State of New York does not seek to impose a double taxation upon the same property, nor will it deprive one county of the State of the revenue to be afforded by taxation of the assessable property within that county because another county, which is a more important financial center, may have at an earlier date in the year made an assessment upon personal property rightfully assessable in the former county.

The general provisions of the Revised Statutes conform to this theory. “ All the personal estate of every incorporated company liable to taxation on its capital shall be assessed in the town or ward where the principal office or place for transacting the financial concerns of the company shall be, or if such company have no principal office or place for transacting its financial concerns, then in the town or ward where the operations of such company shall be carried on.” (R. S. pt. 1, chap. 13, tit. 2, art. 1, § 6; 1 R. S. 389.)

Assuming that the general financial operations of the company are now carried on in the city of Boston, still the principal office or place of business and the place where the principal financial transactions of the company arc carried on is in the county of Schenectady; and this view is further confirmed by the General Corporation Act (Laws of 1892, chap. 687, § 3), which provides: “ The term * office of a corporation ’ means its principal office within the State, or principal place of business within the State, if it lias no principal office therein. The office of a stock corporation sliall be in the county, town or State in which its business is principally carried on.”

It seems clear to me that the taxing authorities of the county of Schenectady have the right to assess the value of the personal property of the relator, and that those of the county of New York have not.

The assessment, therefore, made by tlie commissioners of New York, should be vacated.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    The People of the State of New York ex rel. The Edison Electric Light Company, Respondent, v. Edward P. Barker and Others, Commissioners of Taxes and Assessments of the City and County of New York, Appellants. The People of the State of New York ex rel. The Edison General Electric Company, Respondent, v. Edward P. Barker and Others, Commissioners of Taxes and Assessments of the City and County of New York, Appellants.

      Taxation — residence of a corporation —• determined by the certificate of incorporation —'the statement cannot be qualified.

    The General Manufacturing Act of 1848 (Chap. 40) and its amendments show a clear intent upon the part of the Legislature to require, in the certificate of the incorporation of a company, a statement of the location of the “principal office ®r place for transacting the financial concerns of the company,” and this statement of the location of its principal office is conclusive evidence, as against the corporation, upon the question of its residence.
    Where a certificate of incorporation states that the principal office of tlie company will be in the city of New York, and adds a clause, “ or at such other place as the stockholders of the company might determine,” the additional clause has no force, touching the residence of the corporation for the purposes of taxation, and must be treated as surplusage.
    Appeal by Edward P. Barker and others, as commissionei’s of laxes and assessments of the city and county of New York, from an order of tlie Supreme Court, in tlie first above-entitled proceeding, made at tlie New York Special Term and entered in tlie office of tlie clerk of the county of New York on the 30th day of April, 1895, which provides as follows:

      “ It is ordered and adjudged, that the proceeding and adjudication of the said commissioners, in regard to the assessment for taxation for the year 1894, of the relator, upon its personal property and capital stock, are wholly illegal and void, and that said proceedings and adjudication be and the'same are hereby wholly reversed, vacated and set aside; and it is further
    “ Ordered and adjudged, that the said assessment for taxation for the year 1894, against the relator, upon its personal property and capital stock, be and it is hereby wholly vacated and set aside, and it is hereby directed that the same be stricken from the assessment, and that the name of the relator, The Edison Electric Light Company, be stricken from the ‘ Annual Record of the Assessed Yaluation of the Real and Personal Estate ’ in the city and county of New York; and it is further

      “ Ordered, that any and all tax or taxes levied or assessed against tlie said relator upon, or based upon, said assessment of its personal property and capital stock, for the year 1894, be wholly vacated and set aside and stricken from the roll; and it is further

      “ Ordered, that the said commissioners of taxes above named forthwith make and do all and every act or acts necessary for the complete carrying out of the provisions of this order.
    “ And it appearing that the tax upon the assessed valuation, so/ illegally and erroneously fixed, amounting to the sum of $2,241.19, including the one per cent penalty, was paid under protest by the said relator to the receiver of taxes on the 31st day of December, 1894; fit is further
    “ Ordered and adjudged, that the said relator recover, and the mayor, aldermen and commonalty of the city of New York are hereby directed to pay unto the said relator, the sum of $2,241.19, with interest thereon from the 31st day of December, 1894; and it is further

      “ Ordered and adjudged, that unless otherwise paid or discharged, there be audited and allowed by tlie proper officers of the city and county of New York, and included in the annual tax levy of the city and county of New York, to be made up next after the entry hereof, and paid to the relator, the Edison Electric Light Company, the sum of $2,241.19, with interest thereon from the 31st day of December, 1894, paid, as aforesaid, by the said relator upon said illegal and void assessment.”
    Also, an appeal by Edward P. Barker and others, as commissioners of taxes and assessments of the city and county of New York, from an order of the Supreme Court in the second above-entitled proceeding, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of April, 1895, which provides as follows:
    “It is ordered and adjudged, that the proceedings and adjudication of the said commissioners in regard to the assessment for taxation for the year 1894, of the relator, upon its personal property and capital stock, are wholly illegal and void, and that said'proceedings and adjudication be and the same are hereby wholly reversed, vacated and set aside; and it is further
    “ Ordered and adjudged, that the said assessment for taxation for the year 1894, against the relator, upon its personal property and capital stock, be and it is hereby wholly vacated and set aside, and it is hereby directed that the same be stricken from the assessment and that the name of the relator, The Edison General Electric Company, be stricken from the ‘Annual Record of the Assessed Valuation of the Real and Personal Estate ’ in the city and county of New York; and it is further
    “ Ordered, that any and all tax or taxes levied or assessed against the said relator upon, or based upon, said assessment of its personal property and capital stock for the year 1894, be wholly vacated and set aside and stricken from the roll; and it is further
    “ Ordered, that the said commissioners of taxes above named forthwith make and do all and every act or acts necessary for the complete carrying out of the provisions of this order.
    “ And it appearing that the tax upon the assessed valuation, so illegally and erroneously fixed, amounting to the sum of $9,605.10, including the one per cent penalty, was paid under protest by the said relator to the receiver of taxes on the 31st day of December, 1894, it is further

      “ Ordered and adjudged, that the said relator recover, and the mayor, aldermen and commonalty of the city of New York are hereby directed to pay unto the said relator the sum of $9,605.10, with interest thereon from the 31st day of December, 1894; and it is further
    “ Ordered and adjudged, that, unless otherwise paid or discharged, there be audited and allowed by the proper officers of the city and county of New York, and included in the annual tax levy of the city and county of New York, to be made up next after the entry hereof, and paid to the relator, The Edison General Electric Company, the sum of $9,605.10, with interest thereon from the 31st day of December, 1894, paid, as aforesaid, by the said relator upon said illegal and void assessment.”

      James M. Ward, for the appellants.

      William B. Putney and Henry B. Twornbley, for the respondents.
   O’Brien, J.:

As,the questions involved in both the above-entitled proceedings are the same, except as to amounts, they may be considered together.

It is conceded that in the case of the Edison General Electric Company the assessment should be reduced to the valuation shown by the statement presented to the tax commissioners, viz., $240,275; and that in the case of the Edison Electric Light Company the assessment must be reduced to the valuation shown, by a similar statement to $7,820. This leaves the only question in these proceedings one of residence.

The relators claimed below that on the second Monday of January, 1894, they were and still are non-residents of the city of New York, .and, therefore, that the tax commissioners have no jurisdiction over them, and that the assessments were illegal and void. In disposing of this contention favorably to the relators, the learned judge, at Special Term, held that this principle was controlled by his opinion in the case of The People ex rel. The General Electric Company v. Barker, which, as affirmed, is herewith handed down. Ve think, however, there is a distinction between the General Electric case and that of these relators, growing out of the difference connected with' their incorporation. The General Electric Company was incorporated by a special act of the Legislature, and was empowered by such act to fix its residence by its by-laws, which was done, its principal place of business being thereby placed in the city and county of Schenectady, where the business of the company on the second Monday of January, 1894, was and continuously ever since has been principally canned on. These relators here, however, are manufacturing corporations created under the general act of 1848 (Ohap. 40), as amended; the last of these amendments being embodied in the Corporation Law of 1892 (Chap. 687), the provisions of which, so far as they relate to the incorporation of the relators, being found in chapter 691 of the Laws of that year.

In the original act of 1848 the provision was that the certificate of incorporation should state “ the names of the town and county in which the operations of the said company are to be carried on.” By the Laws of 1892 (Ohap. 691, § 2) it is provided that the certificate, among other things, shall contain “ the location of its principal business office.” These relators, in accordance with what they regarded as, and what was, the law, fixed their status in their certificate, and as shown by the return of the tax commissioners, which is not disputed, “ the town and county so recited in the said certificate was the city of New York, and no other place whatever, save only that the said certificate of the relator attempted to qualify the recital as to its principal office contained in said certificate by reciting that the principal office of the company would be in the city of New York, or at such other place as the stockholders of the company might determine.” Were it not for the last sentence, which recited that the principal office might not only be in the city of New York, but also at such other place as the stockholders of the company might determine, there would be no room for argument as to the conclusion to be reached by this court, in view of its decision in the case of The People ex rel. Knickerbocker Press Co. v. Barker (87 Hun, 341; affd., 148 N. Y. 2), which is authority for the proposition that in case a statute under which a corporation is organized requires that its principal place of business or its principal office shall be designated in its certificate of organization, the statement in the certificate in respect thereto is, as against the corporation, conclusive evidence of its residence, unless its residence has been changed pursuant to some statute. It is not claimed that a change was effected by any statute, nor liave we been referred to any statute which gives the right to a corporation on filing its certificate to qualify the statement which the law requires as to its designating its principal place of business, and, we think, therefore, that this must he treated as surplusage, and that the corporations must be held by their certificates to have designated their residence as N ew York city.

It has been urged that the position of the relators is to be distinguished from the Knickerbocker Press Company case, in that the latter corporation filed its certificate and designated its place of business pursuant to an express requirement of the statute, which with regard to business corporations such as the relators it is claimed is wanting. We think, however, that an examination of the original act of 1818 and the amendments shows a clear intent on the part of the Legislature to require in the certificate of incorporation a statement of the “ principal office or place for transacting the financial concerns of the company.”

As upon this question of residence, we think the Knickerbocker Press Company case is in principle controlling; the assessments should be modified as to the amounts indicated in this opinion, and as so modified the orders should be affirmed, without costs to either party upon this appeal.

Yan Brunt, P. <T., and Follett, <L, concurred.

Orders modified as directed in opinion and affirmed as modified, without costs to either party.

       See ante, page 590.


author: Yan Brunt, P. J:

text:
    Frank W. Sanger, Respondent, v. Thomas Henry French Appellant.
    Contract— under what circumstances it icill be considered not to have been proved.

    Where an alleged contract, relative to the production and exploitation of plays, which gives to the party who brings an action to enforce it very extraordinary powers, including the exclusive right for a period of twenty years to control the business, depends for proof of its existence solely upon the testimony of the plaintiff, which is contradicted by his own statement and acts, the court will, although it may he satisfied, notwithstanding the defendant’s denial of it, that some contract was made between the parties, reverse a judgment in favor of the plaintiff.

      Appeal by the defendant, Thomas Henry French, from a judg. ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of July, 1894, upon the report of a referee, with notice of an intern tion to bring up for review upon such appeal the report of the referee filed in-said clerk’s office the 25th day of June, 1894, and an order made at the New York Special Term and entered in said clerk’s office on the 14th day of December, 1893, denying the defendant’s motion to set aside the order of reference.

      A. J. Dittenhoefer and David Qeoler, for the appellant.

      Al/mon Qood/win and Aug. II. Ycmdergpoel, for the respondent
   Yan Brunt, P. J:

The examination of the voluminous record in this case having taken so much time, there is left, before a decision must be announced, but sufficient time to state in the briefest terms the grounds upon which it seems to us that the referee’s conclusion is erroneous.

The magnitude of the record prevents any attempt to refer, except in the most concise manner, to the salient points which seem to us necessarily to lead to the conclusion that neither of the parties to this action have stated the exact facts in relation to the transactions which have culminated in this large judgment. The plaintiff has indulged in amplification and the defendant has been guilty of suppression. But at the outset it strikes one as an exceedingly curious circumstance that whereas in ail the other dealings of these parties with each other or with persons who were associated with them in the enterprises in which they were engaged, memoranda of the arrangements were made in writing, in respect to this remarkable contract there is not the scratch of a pen in evidence of its existence.

The first thing which challenges attention is the nature of the contract itself as claimed by the plaintiff. It is certainly peculiar and gives the plaintiff remarkable powers, running as it does for a period of twenty years, which circumstance alone would naturally suggest that it should only be established by evidence which w'as reasonably clear and conclusive. In our judgment the plaintiff has failed by any preponderance of evidence to establish the existence of any. contract such as is claimed by him, and indeed his own oath is to the contrary. The plaintiff claims that on the 25th of April, 1887, he and the defendant agreed that they should have the first option to parchase any and all plays owned or controlled by either member of, the firm of Sanger & French, including the plays owned or controlled by Samuel French & Son, of which the defendant was a member, which should be suitable for the new theater (namely the Broadway Theater) for the purpose of producing such plays at said theater and of exploiting them through the United States and Canada for the benefit of said firm of Sanger & French ; that this option was alone to be exercised by the plaintiff, and in respect to which the defendant should have no voice, and that the plaintiff had the right to take not only any plays which he chose, belonging to either Sanger or French, but also any that belonged to the firm of Samuel French & Son, for the purpose of production or exploitation in the United States and Canada, and that the plaintiff was to have half of the profits arising from such production or exploitation. Thus, if the firm of Samuel French & Son owned a play, Samuel French being entitled to one-lialf of the profits and the defendant Thomas H. French being entitled to another, Sanger had the right to take that play for the purpose of exploitation in the United States and Canada, and receive one-lialf of the profits arising therefrom, and the defendant French would thereby be deprived of every dollar of profit arising from the ownership of the play, the other half of the profits necessarily belonging to Samuel French. This seems to be a monstrous contract, and as has already been suggested, it depends entirely upon the oath of Sanger, whereas the evidence shows that in every other transaction had in reference to the production of plays, or the management of the business, or the entering into new enterprises, it was always carefully reduced to writing. And this extraordinary contract is alleged to have been made in the office of the lawyer who was drawing the contracts in reference to the erection of the Broadway Theater, without a word being said to any one in regard to its having been entered into, under which it is claimed, upon the part of Sanger, that he has the right to deprive Thomas II. French of his interest in the firm of Samuel French & Son in respect to such plays as he shall choose, during the period of twenty years.

It is to be observed that this is a remarkable amplification, by a. breath, of ail agreement which had been proposed to be entered into at the time it was supposed that the arrangement in regard to the erection of the Broadway Theater would be entered into with Bailey. That agreement provided that the firm of Bailey, French & Sanger, or a corporation to be formed as stated in the agreement, should have the first option to purchase for production or exploitation in the United States any and all plays that might be controlled by either of the parties thereto and be suitable for production in the Broadway Theater. This did not include those owned by Samuel French & Son; Samuel French & Son were not mentioned. But Sanger swears it into his own contract. And it was because of the fact that the person who was going to-occupy Bailey’s position did not wish to have anything to do with the dealings in or exploiting of plays, that Sanger claims-that this new contract was entered into. If he had said that the new contract was on the lines of the old proposed contract, there might have been some reason to believe that such a contract had been entered into. But when he inserts therein the selling of the-rights of French & Son, which Thomas II. French had no power to do, so far as this record shows, it seems to us that it requires a little more evidence than simply Sanger’s word of mouth to establish such an extraordinary proposition. And what do we have ? What do we find from the evidence ? We find from the evidence that notwithstanding the alleged existence of this contract giving him this right,, that, so far as the receipts at the Broadway Theater and at the Boston Theater upon the first production of the play of Little Lord Fauntleroy” were concerned, Sanger accounted weekly to French for the whole of them. And what does he say when this fact is brought to his attention? Why, that he waived those — that he had a conversation with French in which he waived them. These were supposed to be the most fruitful fields for the production of revenue 'under this contract- — and he waived them. He did not think he had waived them when he swore to his complaint. ITis complaint was almost wholly devoted to reaching the proceeds of this play at the Broadway Theater. He swears that he is entitled to them ; that French fraudulently retained them; he asks for a receiver to take possession of them; there were none other expressly alleged,, except those at Boston, that could be the subject of litigation at the time this action was commenced ; it is what this action was brought for — to recover the plaintiffs share of these receipts which he had “ waived.” The only reason for his waiving ” these receipts was that he knew his conduct was absolutely inconsistent with the claim that he advanced before the referee. No one can examine that complaint and the claim that is made there and then learn that Sanger did not pretend to have any claim to the receipts at the Broadway Theater, or those received at Boston, without coming to the conclusion that there was, beyond peradventure, falsehood at the bottom of his claim somewhere.

That some arrangement was made between French & Sanger at the interview at the lawyer’s office, in which it is claimed that this extraordinary contract was entered into, seems to me beyond doubt j and when the defendant denies that any such arrangement was made, it seems to me that there has been, upon his part, a suppression of what actually occurred. The subsequent conduct of the parties indicates that there was some sort of an arrangement between them, but it also shows that it was not of the character claimed upon the part of the plaintiff. If he had this extraordinary contract, why, when the Frenches were negotiating for this play, Little Lord Fauntleroy,” should he write to Thomas H. French : “ Do I get a chance for a bit of it ? If this is an impertinent question you need not answer it.” Is this the language of the autocrat of the partnership, who had the absolute right to say what should be taken and what should be left ? . And yet he says, when questioned as to this, that it was a jest.

But it is urged that these parties entered into contracts under the name of Sanger & French in reference to the conduct of this business, etc. It is undoubtedly true that the name of Sanger & French was used in connection with this business, but it was used before as well as after. They were jointly interested in this Broadway Theater enterprise; they believed that their interests were identical; and in connection with the business of this theater they acted jointly and used the name of Sanger & French. In the management of the theater they wyere jointly interested outside of the question of the profits derived from the plays and besides those which were received by the theater, aud the most of the contracts which -were. ■entered into in the name of Sanger & French related to the business in respect to which Sanger had waived ” all his claims under the •alleged co-partnership agreement.

As an excuse for the conduct of Sanger in reference to some features of the business, is claimed that he did. not know until just prior to the commencement of this suit that “ Little Lord Fauntleroy ” belonged to the firm of French & Son; that he supposed it was the individual property of Samuel French. That this claim was without foundation is evidenced by the fact that on the 22d of September, 1888, he made an agreement with French & Son relating to the production of Little Lord Fauntleroy,” and he must thereby have known that they controlled the play. And it is another significant fact that as far as the exploiting of this play was concerned, Sanger had nothing whatever to do with it. Thomas II. French attended to the whole of this business, although it came within Sanger’s particular field if he was interested in the enterprise.

We might revert to many facts tending to throw doubt upon the claim made upon the part of the plaintiff, and there are others equally potent which tend to show that the defendant’s claim that there was no arrangement of any kind between himself and Sanger in regard to the exploiting of plays is without foundation.

It seems to us that the evidence shows that there was some ■arrangement, but there is no satisfactory proof in regard to its terms, the extraordinary claim made by Sanger being unsupported by anything except his own word, and that is contradicted by his oath and his acts. We cannot see how any judgment can be supported upon such evidence — certainly not one of the extraordinary character found in the case at bar affecting the rights of parties for almost a generation.

The judgment should be reversed and a new trial ordered, with ■costs to the appellant to abide the event.

Parker, J., concurred; Follett, J., dissented.

Judgment reversed, new trial ordered, costs to appellant to abide ■event; and order affirmed, with ten dollars costs and disbursements.


author: O’Brien, J.: Follett, J.

text:
    William E. D. Stokes, Respondent, v. Edward S. Stokes, Appellant, Impleaded with Others.

      Corporation — action by a stockholder or creditor to compel its officers to account for their official conduct — misconduct must be established — officer entitled to repayment of advances — admissibility of both sides of the account books of the corporation.

    Where an action is brought by a stockholder or a creditor of a corporation, under section 1781 of the Code of Civil Procedure, to compel the defendants to-account for their official conduct in the management and disposition of the funds and property of the corporation, the defendants cannot be ordered to-account until proof has been made and a determination has been reached that there has been official misconduct upon their part.
    The fact that the books of the corporation show that a defendant, an officer of the corporation, is indebted to it for moneys received from it to his own use, does not justify the court in such an action in directing such defendant to-account.
    The gist of such an action is not the debt, but the fact of official misconduct, and unless that is found the court has no power to proceed further in the action and direct an accounting. Follett, J., dissenting.
    Where moneys are advanced to a corporation by one of its officers, it is not wrongful for the person making such advances to withdraw from the corporation, when its treasury will permit, enough money to reimburse himself, and such a transaction does not expose the officer to an action for misconduct.
    Assuming that, in such an action, the books of account of a corporation are per se competent evidence to establish the liability of an officer to it for money loaned, both sides of the account must be considered in determining the question whether the officer is a debtor or creditor to the corporation.
    Appeal by the defendant, Edward S. Stokes, from an mtemocutory judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of July, 1895, upon the decision of the court rendered after a trial at the New York Special Term.

      John J. Adams, for the appellant.

      Frcmh U. Platt, for the respondent.
   O’Brien, J.:

The complaint charges that the defendants, Stokes, Foote, Cornwell and Cornish, have had since its organization, and now hold, the control of said corporation (the Hoffman House), and have been guilty of official misconduct therein, and in the management and disposition of its funds and property committed to their charge, and that the said defendant Stokes lias wrongfully acquired to himself and transferred to others money and property of the corporation, and has lost or wasted the same with the knowledge and concurrence or acquiescence of” the defendants. From the complaint as construed in the former opinion of this court (87 ITun, 152, loé), and by the concession of the respondent, it is clear, to quote from the opinion, that “ the object of this action was to compel the defendant .officers to account for official misconduct aud not for the examination of a long account, and the latter could not be ordered until there was some proof to sustain the allegations that there had been some official misconduct and a determination to that effect is reached by the trial judge and put in the form of an interlocutory judgment directing the account. The issue here presented was as to whether the defendants or one of them, Stokes, had been guilty of official misconduct. Without, however, reaching any determination upon this question, the trial judge, as already stated, appointed a referee. For such practice we cau find no authority.” And the orders directing a reference upon the ground that the object of the action was to procure the examination •of a long account were reversed. Thereupon the plaintiff, without any additional testimony being taken or proceedings had, obtained •a decision, among other things, “ that said corporation (the Hoffman House), being under the control of said Edward S. Stokes as an officer and director thereof, he received to his own use funds of said corporation, as appears by three accounts on the books of account of said corporation entitled respectively ‘ The E. S. Stokes Account/ ‘The E. S. Stokes Yacht Account/ and ‘The Fenwick Hall Account.’ ” And thereafter an interlocutory judgment was entered directing a reference to take and state an account of the dealings and transactions between the said Stokes and said corporation on said three accounts.

This decision eliminates any and all questions of fraud or misconduct on-the part of the defendant Stokes, and does not find that any of the specific charges of misconduct alleged in the complaint are sustained ; but the ground upon which the issues were decided is the fact of the existence of the three accounts mentioned in the books of the corporation, and that, as these show a debit balance against the defendant Stokes, accordingly he must have received moneys to that extent to his own use from the corporation, and should, therefore, account for all his dealings and transactions appearing in such accounts.

¥e held on the former appeal that the action was brought “ under section 1781 of the Code of Civil Procedure to compel the defendants to account for their official conduct in the management and disposition of the funds and property of the corporation,” and, as shown by the provisions of such section and our former opinion, its object “ was to compel the defendant officers to account for official misconduct and not for the examination of a long account.” The issues in such an action do not concern or affect the defendant Stokes as a debtor unless such debt was caused by official misconduct or fraud on his part. That the learned trial judge did not find fraud or official misconduct appears not only from his decision but also from his opinion, 'wherein he says : “ When an officer of a corporation makes the corporation his banker, as it were, where he draws on the corporation, managing the corporation as its officer, and at the same time allowing the corporation to occupy the position of a banker, it seems to me the corporation has a right at the termination of the x elation to come and say, we want an account taken of our relation between us, as an officer of the corporation and our president, and as a depositor who has occupied that relation. There is no objection to such a relation existing that I know of — no reason why an officer of the corporation, if the corporation has a. mind to act in that position, there is no reason why he should not do it; but I think he puts himself in-the position of having the corporation come and say, we want our accounts as between us settled. I don’t see why that is not so. If an officer occupies that position, I don’t see why the corporation has not a right to come in and say, we want a regular accounting between our president and ourselves, the corporation. * * * I don’t want to be understood as saying there is the slightest impropriety in it, but there were money transactions between Mr. Stokes and the corporation. Yery likely it was necessary, to carry on the business of the corporation, that it should be so — I don’t know anything about that; it is not necessary to determine that one way or the other, but he had money transactions between himself and 'the corporation; he was the coi’poration’s agent, he was the corporation’s trustee, and it seems to me that, occupying that relation, the corporation has a right to come in and ask to have the account settled in the usual way.”

"Were this a mere action for an accounting these views might be controlling; but we think now, as wTe did upon the former appeal, that the learned judge has misconceived the nature of this action, which, brought as it is by the plaintiff in his capacity either of stockholder or creditor on behalf of the corporation itself, is made to depend upon the official conduct of the defendants, and this involves issues of fraud, misconduct, willful neglect or other willful culpability of the defendants. The defendant Stokes was justified in concluding that the action was not one intended to hold him as a debtor on an account which ran on the books of the corporation, but to show that his official conduct as a director had been willfully corrupt, and that he liad been guilty of gross misconduct in his office as president and trustee of the corporation. ITad this been an action to recover a debt on the balance of an account, the pleadings and the issues would necessarily be different, and the appellant would have had the opportunity of showing, if he could, as he claimed to be able to do, that the corporation at the time the action was commenced was indebted to him. As said, however, he was not sued upon, nor was the issue presented to him, of an indebtedness ; but he was charged with having fraudulently converted the property of the corporation to his own use. And such charges not having been sustained in the opinion of the trial judge, there is no proper basis for the judgment directing the defendant to account. The plaintiff realized the burden thus placed upon him, and to support the charges in his complaint he introduced a voluminous correspondence replete with charges of official misconduct, and upon the trial selected certain portions of this correspondence with a view to proving that the accounts were in some respects fictitious and fraudulent, and that certain money taken from the corporation had not been entered upon its books. It is unnecessary for us to refer to the evidence upon these points in view of the conclusion of the trial judge that such evidence failed to establish fraud or other misconduct, his opinion and decision showing clearly that he assumed that the existence of these accounts on the books of the corporation. between tlie defendant Stokes and the corporation, of themselves was sufficient to require the defendant Stokes to account for all transactions thus appearing.

"With respect to such accounts — and upon their competency and probative force this decision must rest •— although the case of Rudd v. Robinson (126 N. Y. 113) is authority for the proposition that in an action by the receiver of a corporation against one of its directors to recover for money and property alleged to have been improperly appropriated, the books of account of the corporation are not per se competent evidence to establish a liability; but assuming, from the additional fact which appears in this case that the defendant Stokes had knowledge of the existence of such accounts in the books of the corporation, that this fact made them competent evidence against him, we have still to consider what was the result and effect- of such evidence. It appears that the personal account of the defendant Stokes was commenced with a cash credit of $35,000; and while during different periods this amount was lessened by withdrawals until at times there was a debit balance against him, it yet appears that at the time 'the action was brought there was in such account a credit balance in his favor. The plaintiff, for the purpose of proving the withdrawal of moneys or property of the corporation, attempted to introduce but one side of the account, namely, the debit side; but the learned trial judge, upon the other side being offered by the appellant, correctly held that if either then both sides of the accounts were admissible, which, therefore, went in together, showing the results already outlined. The effort to falsify these accounts as made by the plaintiff was not in the opinion of the judge below successful. "With respect to the suggestion, therefore, that the debit side of the account furnishes evidence that the defendant Stokes has funds of the corporation in his hands, the answer is, that the credit side of the account shows that he has not only accounted for, and returned them to the corporation, but in addition has something in his favor.

So we are brought back again to the proposition with which we started, as to whether or not the mere fact that a director or officer has transactions with the corporation, appearing on the books, which show at the time the action was brought a credit balance, the correctness of winch accounts is not successfully assailed, can be made the basis for a decision and an interlocutory judgment directing an accounting’ by such officer in an action brought as this is under section 1781 of the Code to compel such officer and director to account for his official misconduct. The conclusion reached that such evidence was sufficient is equivalent to a finding that an officer and director who has any transactions with the corporation can be proceeded against for official misconduct under section 1781 of the Code. YV e have been referred to no authority which supports this proposition, nor do we think any case has gone so far as to hold that there is any such penalty attached to or involved in a transaction carried on between an officer and director of a corporation and the corporation itself. YYe know from common experience, and must, therefore, take notice of the fact, that it does frequently happen that the affairs of corporations require at times the advancement of sums of money by such officers which are clearly for the benefit of the corporation. "Where such moneys are advanced it is not wrongful for the person making such advances to withdraw from the corporation when its treasury will permit enough to reimburse him therefor, and such transactions we do not think would expose the officer or director occupying such a relation to the corporation to a successful action being maintained against him for misconduct.

In this, as in all other actions, the judgment should be “ secundum allegata etprobata? Here, however, while the allegations charge fraud, violation of duty and gross misconduct, the trial judge finds that such allegations or charges are not sustained, but nevertheless renders a judgment subjecting the defendant Stokes to the same penalties and burdens as would be entailed had they been sustained by competent proof. If these accounts in the books of the corporation are competent evidence in favor of the corporation as against the defendant Stokes, we fail to see why they are not equally good in his favor as against the corporation, assuming as we do from the conclusion reached by the learned trial judge that the correctness of these ■accounts has not been successfully assailed, and that his conclusion has been derived, not from the fact that there was any fraud or deceit or falsity in the accounts themselves, but that the transactions, being those between an officer and a corporation, entitled the latter to an accounting, notwithstanding a comparison of the debit and credit sides of such accounts would show at the time the action was brought, and as is now made to appear by the accounts filed, a large credit balance in favor of the defendant.

"We think now, as we did upon the former appeal, that as this action, brought under section 1781 of the Code, is “ to compel the defendant officers to account for official misconduct, and not for the examination of a long account,” the latter could not be ordered “ until there was some proof to sustain the allegations that there had been some official misconduct and a determination to that effect is reached by the trial judge.” The absence of such a determination is, we think, fatal to the judgment, which should be reversed and a new trial ordered, with costs to appellant to abide the event.

Yan Brunt, P. J., concurred.

Follett, J.

(dissenting):

This case has been once before this court, and for a statement of the facts and the relief sought reference is made to 87 Ilun, 152. Since that decision the case has been again submitted to the Special Term, and a decision signed and an interlocutory judgment entered, from which this appeal is taken. In the decision filed the court found as follows: “ The court states the grounds of its decision to be, that the plaintiff, William E. D. Stokes, is a stockholder of the said corporation, as alleged in the complaint; that the relations of said Edward S. Stokes to said corporation were such that an application by the plaintiff to the board of directors of said corporation to bring an action against said corporation were futile and unnecessary ; that said corporation being under the control of said Edward S. Stokes as an officer and director thereof, he received to his own use funds of said corporation, as appears by three accounts on the books of account of said corporation entitled, respectively, The E. S. Stokes ■ Account.,’ £The E. S. Stokes Yacht Account,’ and £ The Fenwick Hall Account-.’ ”

These facts and those admitted in the pleadings are sufficient to entitle the plaintiff; to maintain this action, and are quite sufficient to sustain the interlocutory judgment, which simply directs the defendant Stokes to account for such moneys as he has received, belonging to the corporation of which he is an officer. (Brinckerhoff v. Bostwick, 88 N. Y. 52.) The learned counsel for the appellant urges that because the conduct of his client in receiving to his own use the funds of the corporation is not characterized by the trial court as fraudulent, the interlocutory judgment cannot be sustained. This position is not tenable, for if the appellant has money in his hands belonging to the corporation, which he received as an officer, and which he is unwilling to pay over, as he seems to be, he is liable to account therefor, and it is quite immaterial whether or not he acquired it fraudulently.

On the trial the defendants showed by oral evidence that receivers for the Hoffman House had been appointed by the Court of Chancery of the State of New Jersey, and offered in evidence the order of that court appointing the receivers, which was rejected on the ground that the defect of parties had not been pleaded. Not having pleaded that there was a defect of parties the defendants must be held to have waived the objection. (Code Civ. Proc. § 499.) The sums recovered in this action will be paid into the treasury of the corporation and will eventually reach the hands of the receivers unless they have been or shall be discharged. Should the receivers desire to be admitted as parties to the action, they undoubtedly would be upon their own application, but the defendants, by neglecting to raise the objection by answer, have lost their right now to do so.

No question relating to the reception or rejection of evidence is argued, excepting the one considered, and believing that the judgment is right it should be affirmed, with costs.

Judgment reversed, new trial ordered, costs to appellant to abide event.


author: Parker, J. : Follett, J.

text:
    The People of the State of New York, Respondent, v. John T. Stephenson, Appellant.

      Bribery — evidence of a prior offense not connected, with the crime is inadmissible— limits of cross-examination — financial history of a police captain, when improper — evidence admitted vpon a promise to connect it with, the crime charged — if not connected defendant need not move to strike it out.

    Upon, the trial oí .an indictment for bribery it appeared that the defendant, a captain of police of the city of New York, was indicted for bribery in that on the 16th day of December, 1891, ho had asked, received and agreed to receive from Martin N. Edwards, a produce dealer, four baskets of peaches as a bribe upon an agreement and understanding that in consideration of such bribe he would violate his duty as such captain of police by knowingly suffering and permitting Edwards to offend against an ordinance passed by the common council of the city relative to sidewalk incumbrances.
    The People proved by Edwards that, in'May, 1891, James Kelly, a patrolman of the precinct, came to Edwards and told him that the captain wanted a box of Florida oranges sent to his address, and that on the 15th day of September, 1891, Kelly called again and said the captain wanted four backets of peaches, and that these poaches were delivered. Edwards also related another transaction in which Kelly requested him to pay the captain money, and also gave a conversation in which, as he testified, the captain had said in reference to these transactions, that any arrangement that Kelly saw fit to make with Edwards or any favors which Kelly wanted to extend to Edwards would be all right, and that he, the captain, would abide by them. The witness further testified: I said to him, “You sent aman to me to say that you would take fruit from us for taking care of us on the sidewalk; we have sent you the fruit,” to which the captain replied, “ Inasmuch as you have sent me the fruit, I will take care of this notice for you.”
    Upon the trial of the action, against the objection of the defendant, Edwards was allowed to testify that in March, 1891, a patrolman named Thorne came to him ud said that he was the captain’s private man; that the captain used conlerable fruit, and that if there was no objection the captain would take fruit the place of money for protecting Edwards as to the sidewalk; that Edwards agreed to this, and upon Thorne’s request shipped by American Express to the captain a barrel of apples. No attempt was made to show that the barrel of apples was delivered to the defendant at his house, and it did not appear that Thorne was his private man nor was the defendant connected with Thorne in any way by subsequent testimony, although the evidence was admitted upon the statement by the district attorney that he would connect this interview with the crime for which the captain was on trial. Notwithstanding the fact that the district attorney gave no evidence connecting the shipment of apples with the crime charged, the evidence was not stricken out and went to the jury.
    The prosecution was permitted, against the objection of the defendant, to prove in detail all of the property, real and personal, owned by the defendant, as well as that possessed by his wife, accumulated during a period of seventeen years’ service, the prosecution apparently intending that the jury should draw from the evidence the inference that the defendant’s property had not been obtained honestly, but was the outcome of a system of bribery, of which the offense charged in the indictment was but a single instance.
    The defendant was convicted.

      Held, that testimony of Edwards as to the transactions of Edwards with Thorne relative to the barrel of apples, occurring six months before the commission of the offense charged, was inadmissible against the defendant;
    That no ratification by the defendant of Thorne’s proposition could be predicated upon the evidence (Follett, J., dissenting);
    That the position taken by the People, that the defendant was bound by the testimony because he did not move to strike out the evidence before the close of the case, was untenable;
    That where the People are permitted to introduce evidence upon a promise to connect it with the crime charged and fail to do this, it is the duty of the district attorney to withdraw the testimony from the consideration of the jury, thereby remedying as far as possible the wrong which has been done the defendant by the admission of the evidence in the first instance;
    That the cross-examination of the defendant as to the property of himself and his wife accumulated during a period of seventeen years’ service in the police force was improper and exceeded the reasonable limits of a cross-examination;
    That the rule as to the cross-examination of the defendant in a criminal case is that he may be inquired of in relation to the facts brought out on his direct examination as well as in regard to all other facts which are pertinent to the issue, whether or not inquiry has been made in regard to them upon the direct examination; and further, that facts tending to discredit him as a witness or to impeach his moral character may also be elicited;
    That the amount of property accumulated by the defendant was in no view pertinent to the issue, and that proof that a police captain had accumulated $10,000 in seventeen years did not tend to discredit him or impeach his moral character.
    Appeal by the defendant, John T. Stephenson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of December, 1894, upon the verdict of a jury, rendered after a trial at a Court of Oyer and Terminer, convicting the defendant of the crime of bribery.

      Benjamin F. Tracy and John Vincent, for the appellant.

      John B. Fellows, District Attorney, and John D. Imdsay, Assistant District Attorney, for the respondent.

       Decided with the following cases in First Department, December 30, 1895.

   Parker, J. :

The indictment under which the defendant was convicted charged him with having on the 16th day of December, 1891, at the city and county of New York, while a captain of police, and in charge of the fifth police precinct of said city, asked, received and agreed to receive, from one Martin N. Edwards, a produce merchant carrying on business in said precinct, four baskets of peaches as a bribe upon an agreement and understanding that in consideration of such bribe, he would violate his duty as such captain of police by knowingly suffering and permitting Edwards to offend against an ordinance passed by the common council of said city relative to sidewalk incumbrances.

Upon the trial, the People, after proving the ordinance bearing upon the issue; defendant’s official ]>osition; the taking of the oath of office required by law; his transfer to the fifth precinct on the 8th day of December,- 1890, and that he continued in charge of such precinct during all the period of time referred to in the evidence of Martin N. Edwards, called Edwards, who testified that one Melvin Whispell and himself were associated together in the fruit business in the fifth precinct; that, early in March, 1891, Augustus J. Thorne, a patrolman, approached him and said that there was a new captain in the district— Captain John Stephenson; that he was the captain’s private man; that the captain used considerable fruit, and, if there was no objection, the captain would take fruit in the place of money for protecting Edwards on the sidewalk; to which Edwards replied that it was immaterial to him whether he took fruit or money, and asked Thorne if he had an order for the fruit then. Thorne said he had not, but would come with it the next day. The following day Thorne called and brought with him a card, upon which was written “ Captain John T. Stephenson, 2074 Washington avenue, Tremont.” lie handed the card to Edwards and said: “ This is the captain’s address, and he wants to have a barrel of apples shipped to this address ; to ship it by the American express.” Edwards took the card, marked a barrel of apples as requested, and delivered it to the American Express Company. No attempt was made to show that the barrel of apples was delivered to Stephenson at his house, and it does not appear that Thorne was the captain’s private man, nor was the captain in any way connected with him by subsequent testimony. It does not appear from the record that Thorne’s name was ever mentioned to him in connection with the conversation to which Edwards testified, or that he ever heard of such conversation until Edwards testified to it.

Edwards further testified that, in the latter part of April, or early in May, 1891, James Kelly, another patrolman of the defendant’s command, who had been in that precinct continuously from October, 1873, and who, early in February, 1891, had been especially detailed by the police board on corporation ordinance duty in the fifth precinct, called on him, while he was standing on the sidewalk in front of his place of business, and told him that the captain wanted a box of Florida oranges sent up to his address. Edwards replied that he did not have any oranges, and testified that he did not send them. A month or so later, Kelly reported certain violations of the corporation ordinance by Edwards and his partner to Captain Stephenson, who promptly forwarded the complaints to the chief clerk of the board of police. August 10, 1891, an action was commenced by the corporation attorney to recover penalties on four of these complaints, and judgment was rendered against Edwards thereon on the 28th of August, 1891. This judgment Edwards paid. September 15, 1891, Kelly called again, and said the captain wanted four baskets of peaches, good for calming purposes, sent to his address. Edwards says that, without further conversation, he personally addressed four baskets of peaches to the captain at the address which Kelly had given him in April or May, and delivered them to the American Express Company. Evidence was offered tending to show that the agent of the express company made delivery of the peaches at the address marked on the baskets, and the receipt book bore the signature, Mrs. J. T. Stephenson. Mrs. Stephenson denied that it was her signature, or that she received the peaches, and the defendant also denied all knowledge of them. On the 28th day of September, 1891, the corporation attorney began another action against Edwards & Whispell, for violations of the sidewalk ordinance, and Edwards testified that he went at once with the notice to Captain Stephenson, whom he found at the station house. He describes what took place as follows:

44 When I first went into the station house the captain was not in his. room. I inquired for the captain. They said he would be there in a few moments. In a few moments I saw him come out of a back room, and he said : 41, am Captain Stephenson,’ and took me to his private office, unlocked the door, or opened the door, and invited me in. I said to him: 4 Captain Stephenson, here is a notice that I have got of afine for obstructing the sidewalk; this is the second notice I have received; the first one I paid ; I thought it was a mistake, probably, and paid it. Here is the second one I received. What is there about this ? 1 thought I had an understanding with you tflat you would take care of my sidewalk.’ He said: 4 That is evidently a mistake; you leave it with me, and I will attend to it for you.’ I left the notice with him.”

Notwithstanding this interview, judgment was rendered against Edwards & Whispell on October nineteenth for five dollars and costs. As soon as Edwards received notice of this second judgment he went again to Captain Stephenson. In response to the question: 44 State what happened ? ” Edwards testified as follows : 44 A. I said to him: 4 Captain Stephenson, here is a notice of judgment against me; I brought the notice around to you some time ago, and you agreed to take care of that. You asked me to leave that notice with you, and you would take care of it. It is evident you haven’t done it. Here is a notice of judgment.’ He says: 4 Damn it, I told so-and-so to go and attend to that, but he evidently hasn’t done it. You leave this notice of judgment with me, and I will take care of it for you.’ I left it with him.”

44 Hy tub Court: Q. Any tiling else said? A. Yes, sir. Q. Go on. A. I said to him : 4 Yon sent a man to me to say that you would take fruit from us for taking care of us on the sidewalk. We have sent you the fruit as you have ordered it, from time to time, and how is it you haven’t attended to this notice for us ? ’ Q. That you have taken fruit ? A. We have sent him fruit. Q. Eor doing what ? Á. Eor taking care of us on the walk. Q. What did he say? A. Inasmuch as yon have sent me the fruit I will take care of this notice for you. Q. He said that? A. Yes, sir. Q. Anything else ? A. He said : ‘ It is not customary for me to do this kind of business; I never lay myself liable to these people down town.’ Q. What else? A. ‘Any arrangement that Mr. Kelly sees fit to make with you, or any favors that he wants to extend to you will be all right, and I will abide by it.’ ”

Edwards testified also that, about the 10th of November, 1891, Kelly again came to him and said, “ The captain wants fifty dollars.” Edwards replied that he had fulfilled his agreement by furnishing him with fruit. Kelly answered that the captain “ was not satisfied with that; he wants money — wants fifty dollars.” Edwards protested that he could not afford to pay the captain the fifty dollars, ,and asked Kelly to see if he would not be satisfied with twenty-five dollars. This Kelly promised to do', but returned after two or three hours, saying that the captain would not accept it. Edwards then put twenty-five dollars in bills in an envelope, addressed the envelope to the captain, sealed it up and handed it to Kelly. Within an hour Kelly returned and threw the envelope on the desk saying, “ The captain won’t have it. It must be fifty dollars or nothing, and you needn’t pay it if you do not want to.” Opening the envelope Edwards found the twenty-five dollars; he then made out a bill against the defendant for twelve dollars, the value of the apples and peaches, receipted the bill, placed it in another envelope with thirty-eight dollars in money, sealing and addressing it as before, and handed it to Kelly who carried it away with him. The next day, according to Edwards, Kelly called on him again and told him to go before the court and say that they (Edwards and his partner) had probably obstructed the sidewalk a little, but would be careful not to do so in the future, and the judge “would rub out the judgment,” or words to that effect. This Edwards says he did and the case was dismissed.

The first question pressed upon our attention is as to the correctness of the ruling of the court admitting the evidence of the conversation between Edwards and Policeman Thorne against the objection of the defendant.

There is no evidence whatever in this case connecting Thorne with this defendant. There is no evidence tending to show that he was ever tlie defendant’s private man.” On the contrary, there is evidence that he never was.

In the respondent’s brief it is said that Edwards’ testimony is to the effect that the defendant admitted that he had sent Thorne to him for the purpose of making an arrangement to have fruit sent to him from time to time. There is no direct evidence to that effect, nor is there any evidence from which such an inference can properly be drawn. The only evidence which it is even pretended tends in that direction has been quoted in full by us. The captain is alleged to have said, “ Any arrangement that Mr. Kelly sees fit to make with you or any favors he wants to extend to you will be all right and I will abide by it.”

Nothing is said about Thorne, his name is not mentioned, he is not in any way refen-ed to. Indeed the language used expressly excludes the claim that the captain referred to anything that Thorne had done. He expressly refers to Kelly, and to Kelly only; he is the acknowledged representative and no one else. The interview occurred almost immediately after the sending of the peaches to the captain at Kelly’s request, and tlie expression regarding the sending of the fruit, assuming as we must that it was made, necessarily refers to Kelly, who was directly and solely named by the defendant in that connection. What Thorne had done occurred six months before.

In civil actions ratification would never be predicated upon such evidence. How much less can it be relied upon to establish a criminal act. And yet Edwards was permitted to testify that Thorne came to him and said: “ I am the captain’s private man; the captain uses considerable fruit, and if you have no objections he will take fruit from you in place of money for protecting you on the sidewalk.” “ I said it was immaterial to us; we would as leave he would take fruit as the money; we would give him fruit. I asked him if he had the order for the fruit now. He said no; he would come the next day with it.”

Edwards said that he did come the next day with an order for a barrel of apples for the captain, but it does not appear that it was ever delivered to the defendant. When it is considered that the charge against this defendant was that he agreed, in violation of his duty as a public officer, to accept a bribe as a consideration for protecting Edwards in disobeying the law, the conclusion is inevitable that this evidence must have had great weight with the jury.

Indeed, the record is not without direct evidence that the jury attached importance to it, for we learn from it that after the jury had been charged by the court, and had retired, they returned with a request that the evidence of one of' the witnesses be read, after which a juror asked this question: “Would I be at liberty to ask where this Thorne is ? Is he out of the reach of the court ? ” *

The assertion that this evidence was prejudicial to the defendant and ought ñot to have been considered by the jury, is so clearly well founded as to be beyond the reach of reasonable controversy. The question is, whether this defendant, by proper objection and exception, is in a. position to make the point on this appeal. His objection to its admission was seasonably and properly made, and the court, at once appreciating its forcefulness, inquired of the district attorney whether he intended to connect the defendant with the interview between the witness and Officer Thorne.” This inquiry being answered in the affirmative, the court overruled the objection, and in giving the reasons for it said: “ As I understand the district attorney, he says that he will connect this interview with the direct crime for which the defendant is now on trial, and because this interview relates to the receipt of the peaches, I overrule the objection, cautioning the jury again that it is not to try him for the apples, nor is he to be found guilty on this indictment because he sent the apples, but it is to be connected by the district attorney with the crime with which he is charged ; if not, I will strike it out.” The district attorney did not connect it, but the evidence was not stricken out.

It is said that while the defendant’s objection was in time, it is, nevertheless, not available to him because he did not move to strike out the objectionable testimony before the close of the case. There are civil cases in which the courts have indulged in expressions to that effect. (Baylis v. Cockroft, 81 N. Y. 363.) We cannot discover any good reasons for such a rule even in civil actions, and certainly it ought not to obtain in criminal cases, in view of the policy of the law to carefully guard a defendant from the possibility of harm from evidence calculated to prejudice a jury, rather than to prove the offense charged; nor have we found a criminal case in which the existence of such a rule has been asserted. Such a rule would place a premium upon the recklessness of prosecuting counsel. By a promise to connect, the prosecuting counsel could deprive a defendant of an exception which but for it would be well taken. To assert that a defendant may be deprived of the protection of the law simply upon the assertion of counsel is a novel proposition, to say the least. But the contention of the People amounts to this, and nothing more. The testimony offered was inadmissible as the evidence then stood. The court so held. Thereupon the counsel for the People promised to connect the defendant with the interview testified to, but he failed to keep his promise ; and in such case it should not be held that the promise, whether made in bad faith, or in good faith because based upon inaccurate information, should operate to the prejudice of the party accused. Such a result must necessarily ensue if a defendant be compelled to move to strike out the prejudicial and incompetent evidence. We think where such evidence is admitted because of the assertion of counsel of his ability and intention to connect it, that if the assertion be not kept good the counsel making the promise should be compelled to withdraw the testimony from the consideration of the jury. He is the party responsible for the wrong and should be compelled to right it in so far as he is able.

The prosecution was permitted, against the objection and exception of the defendant, to prove in detail the value of all the property, real and personal, owned by the defendant, as well as that possessed by his wife. The learned counsel for the prosecution conducted the examination on this subject in a manner calculated to produce a decided effect upon the minds of the jury. He first, showed by the defendant that when he became' a member of the police force all of his property did not exceed in value $500 or $600. This was followed by proof of the date of his appointment as patrolman ; the amount of his salary during the several periods when he was patrolman, sergeant and cajstain; the date of his marriage; number of his children ; the location of his residence; the fact that he had not inherited any property except about $1,500, and specifically and in detail he was inquired of as to the sums paid by him for property from time to time, the result being that it was made to appear that he was worth between $9,000 and $10,000 at the time of the trial.

Without any warning or chance for preparation, the defendant was called upon to make such an accounting of his business affairs, covering seventeen years of active life, as should satisfy the jury that the property which ho or his wife owned was not the fruit of various acts of bribery.

The object which the counsel for the prosecution had in mind in offering this evidence is apparent.

The defendant was indicted for receiving as a bribe four baskets ■of peaches. In making out the case for the People, the request by Thorne for a barrel of apples, under circumstances already adverted to, was shown. It was made to appear that Kelly told Edwards to ■send the captain a box of oranges, which was not done; that Edwards expressed four baskets of peaches to the captain, and that Kelly tried to collect of Edwards fifty dollars which he said was for the captain.

But as each of the charges was positively denied by the defendant, and as his wife had denied that the peaches ever came to the house, the prosecution sought to strengthen its position before the jury by the introduction of evidence from which it (the jury) was expected to draw the inference that the defendant’s property was not obtained honestly, but was the fruit of a system of bribery of which the offense charged in the indictment was but a single instance.

The assertion that this evidence did not tend in any degree to prove the offense charged against the defendant; that it had no bearing whatever, upon any legitimate issue, and that its only effect was to inflame the prejudices and arouse the indignation of the jury, requires no argument for its support. It is obvious that it is true.

It is not pretended, in support of the judgment, that if the People had offered independent evidence of the defendant’s poverty before becoming a policeman, and that the value of his property at the time of the trial was $10,000, such evidence would have been admissible.

It is urged, however, that the defendant having elected to become a witness, the limitations of his cross-examination wei'e within the discretion of the court. This is not a correct statement of the rule. The principle that an accused person who becomes a witness in his own belialf, thereby places himself in the attitude of any other witness in respect to the right of cross-examination, has been announced in many cases. (Brandon v. People, 42 N. Y. 265; Conners v. People, 50 id. 240; Stover v. People, 56 id. 315; People v. Casey, 72 id. 394.)

But the general scope of such a cross-examination is well defined and the courts will not allow any transgression of the well-understood limitations.

In People v. Tice (131 N. Y. 651), the leading case cited by the People, the boundaries of a cross-examination of a defendant in a criminal action are held to be, that he may be required to answer questions affecting his credibility, or as to matters relative to the issue, although having no relation to his testimony on the direct examination.

The opinion also refers to the discretion to bo exercised by the trial court on such a cross-examination, and concedes that the trial court may properly restrict such cross-examination, but denies that it may extend such cross-examination beyond relevant matters or matters affecting credibility.

The rule and the reason for it found expression in People v. Brown (72 N. Y. 574), the court through Chief Judge Church. saying, lt I am of the opinion that the cross-examination of persons who are witnesses in their own behalf, when on trial for criminal offenses, should in general be limited to matters pertinent to the issue, or such as may be proved by other witnesses. I believe such a rule necessary to prevent a conviction for one offense by proof that the accused may have been guilty of others. Such a result can only be avoided, practically, by the observance of this rule.”

In People v. Crapo (76 N. Y. 288) the defendant, who was on trial for burglary, was asked on cross-examination if he had been arrested on a charge of bigamy. The court, in holding the question inadmissible, stated the true rule to be, that the disparaging questions must either be relevant to the issue, or such as clearly-go to impeach the moral character and credibility of the witness.

In People ex rel. Phelps v. Oyer & Terminer (83 N. Y. 436, 460) the court held that the range and extent of the cross-examination of a defendant in a criminal case is within the discretion of the trial judge, subject, however, to the limitation that it must relate to matters pertinent to the issue, or to specific facts which tend to discredit the witness or impeach his moral character.

Other cases in great number might be cited to the same effect, but, as we have found none in conflict with them, it is unnecessary.

From these cases we understand the rule governing the cross-examination of a defendant in a criminal case to be that he may be inquired of in relation to the facts brought out on his direct examination as well as in relation to all other facts pertinent to the issue, whether the subject of direct examination or not, and that facts tending to discredit him as a witness or impeach his moral character may also be elicited; that while the trial court may, in the exercise of its discretion, still further restrict the cross-examination, it cannot extend it beyond the limits of such rule.

The defendant’s counsel, on his direct examination of the defendant, did not open the door for the cross-examination we are considering. It is not pretended that the evidence elicited was pertinent to the issue before the court. And it need not be argued, we take it, that proof that a witness accumulated between $9,000 and $10,000 in seventeen years does not tend to discredit him or impeach his moral character.

It follows that, if the views expressed be sound, the judgment of conviction must be reversed and a new trial granted.

Yan Brunt, P. J., concurred.

Follett, J.

(dissenting):

I cannot concur in the conclusion reached in the prevailing opinion, that the testimony of Edwards and Whispell, detailing the conversation had between themselves and Policeman Augustus J. Thorne in March, 1891, was irrelevant or incompetent.

Edwards testified : “lie (Thorne) said, £I am the captain’s private man; the captain uses considerable fruit, and, if you have no objections, will take fruit from you in place of money for protecting you on the sidewalk.’ ”

Whispell testified: “ Thorne said we had a new captain, and he was the captain’s man, and that he was looking after the .sidewalk business — something to that effect- — -and suggested fruit in payment for the use or protection of the sidewalk.”

Both Edwards and Whispell testified that on the next day Thorne called and left the defendant’s card on which was his. address, and that a barrel of apples was sent to him on the same day by the American Express. They testified that in April or May, 1891, Policeman James Kelly called and informed them the captain would like to have a box of Florida oranges sent to his house, and they replied they had none. They further testified that September 15,1891, pursuant to Kelly’s request, they sent four baskets of peaches to defendant’s house. In September, 1891, the firm was fined for incumbering the sidewalk, and Edwards testified that he called on the defendant and inquired why he had not been protected, and said to him: “You sent a man to me to say that you would take fruit from us for taking care of ns on the walk. We have sent you the fruit as you have ordered it from time to time, and how is it you haven’t attended to this notice for us ? ” The defendant replied : “ Inasmuch as you have sent me the fruit I will take care of this notice for you.” This conversation between Edwards and the defendant clearly referred to the arrangement made with Thorne, for no arrangement had been made with Kelly to pay the captain in fruit for his protection. The captain by his answer assented to the statement that he had sent a man to arrange to take fruit in payment for sidewalk protection. This conversation, assuming that it was had, which was a question for the jury, could have referred to no arrangement but the one made with Thorne, and both the defendant and Edwards must have so understood it. The defendant did not inquire what arrangement ? With whom was it made ?

From May 5, 1877, to January 23, 1884, the defendant served as a patrolman and roundsman, at an annual salary of $1,200. .During this period his pay amounted to $8,050. From January 23, 1884, to December 23, 1887, he served as sergeant, at an annual salary of $1,600. During this period his pay amounted to $6,066. From December 23, 1887, to September 6, 1894, he served as captain, at an annual salary of $2,750. During this period his pay amounted to over $18,600. During his service of seventeen years and four months he received in salary more than....... $32, 700

Worth when appointed.............................. 500

[Received from his wife’s estate...................... 1, 500

$34, 700

By his cross-examination it was shown that he had the following property:

A mortgage for................................... $3,000

A farm for which he paid.......................... 4,100

A city lot, in the name of his wife, for which he paid... 2, 000

An interest in a house above the mortgages............ 2,100

$11, 200

His interest in the house was subject to mortgages amounting to $18,900. On his redirect examination he testified that he was not worth to exceed $10,000. His testimony did not tend to show ill-gotten gains. On the contrary, the inference to he drawn therefrom was that he liad not acquired projierty by blackmail or by bribery.

The subjects on which a witness may be cross-examined for the purpose of determining his credibility, as well as the extent of such cross-examination, are largely in the discretion of the trial court and dependent, upon the facts of each case, and when it appears that the credibility of a witness was strengthened rather than impaired by a cross-examination, even on immaterial subjects, it is not a legal error for which a new trial will be granted. The court, in its instructions to the jury, made no allusion to these facts, and it is not asserted that the prosecuting officer did, and these facts might and may have been urged with great force by the defendant’s counsel to show that the defendant had not been the recipient of bribes or of blackmail. 1. am unable to see how the defendant could have been injured by this cross-examination.

It is charged in the indictment that September 15, 1891, the defendant received from Edwards four baskets of peaches as a bribe for not performing his duty in respect to the sidewalk in front of Edwards’ store. Whether he received the peaches was the crucial issue of fact. Edwards and Whispell swore that he did, and that they were delivered through the American Express Company. The defendant denied it. His wife denied it. A way hill, of which the following is a copy, was introduced in evidence :

No. 221. Sep. 15, 1891. 189

AMERICAN EXPRESS 00. — Freight Waybill.

$......Am. Exp. Tariff per 100 lbs.

$......Connecting Exp. do Ohy 802

From New York 48th Street Depot. To Fordham.

William F. Herger testified that September 15, 1891, he was a driver for the American Express Company, and on that day received the way bill and delivered four baskets of peaches at the defendant’s residence, No. 2074 Washington avenue. In corroboration of his testimony, the following delivery sheet was read in evidence :

The fact that defendant’s name in the way bill was misspelled Stevenson,” and that No. 2082 instead of 20^4 Washington avenue was erroneously inserted by Herger in the delivery sheet, are matters of slight importance and not sufficient to discredit the documentary evidence and the testimony of three witnesses. Under the circumstances of this case it is impossible to believe that' Edwards, Whispell and the employees of the express company in September, 1891, more than three years before this indictment was found, entered into a conspiracy to manufacture these documents. They had no motive. The defendant and his wife testified that the peaches were not received. The wife swore that the signature on the delivery sheet was not hers. The defendant swore that the signature did not resemble the handwriting of his wife, and also that it might look a little like it. Upon this conflicting evidence, the conflicting testimony of the defendant and Edwards in respect to their interview at the station house and evidence in regard to the prosecution of Edwards for violating the ordinance relating to sidewalks, and the discontinuance of some of those prosecutions after the last interview at the station house and other evidence which need not be referred to, this case was submitted to the jury under instructions which were eminently fair and not unfavorable to the defendant, and he was convicted. I am unable to find any error calling for a reversal of the judgment.

Code Crim. Proe.: “§ 542. After hearing the appeal the court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights, of the parties.”

The judgment should be affirmed.

Judgment reversed, new trial granced.


author: Patterson, J.:

text:
    Mark W. Maclay, Respondent, v. Jeremiah P. Robinson, Appellant, Impleaded with Lewis H. Leonard and Others, Respondents.

      Gift — assumption of a debit balance on the books of a firm — directions to a bookIceeper to cha/t'ge it to the donor — failure to make the entry before the donor died.

    Where a gift, not susceptible of actual physical delivery, is, so far as is possible, placed by the donor in the control of the common agent of the donor and the donee, with directions to execute it, the donor has fully performed upon his part and the gift will not fail because the common agent of the parties neglects, during the lifetime of the donor, to carry out the instructions given him by the donor.
    Upon a settlement of partnership accounts it appeared that Mr. Robinson, Sr., one partner, the father of another member of the firm, declared it to be his purpose to have the balance standing upon the books of the firm to the debit of his son transferred to his own account in order to reward his son for faithful attention to the business; that with this intention Mr. Robinson, Sr., instructed his bookkeeper to transfer to his own account his son's indebtedness to the firm; that the bookkeeper made a memorandum of the instructions which Mr. Robinson, Sr., had given him and showed it to the son; that shortly after the transaction and before the bookkeeper had made the proper entry in the ledger, Mr. Robinson, Sr., died.

      Held, that the gift was valid and irrevocable;
    That it was a matter where actual delivery was, from the nature of the case, impossible; that the donor had done all that he could in the matter of delivery, and that the gift should not fail because the common agent of the donor and the donee had not executed the instructions of the donor before he died.
    Appeal by tlie defendant, Jeremiah P. Robinson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of March, 1895, upon the report of a referee.

      Fragile D. Sturges, for the appellant.

      Wilhebnus Mynclerse, for Harriet W. R. Leech, executrix, respondent.
   Patterson, J.:

We are unable to adopt the conclusion reached by the referee on the only question presented by this appeal. That question is-between a surviving partner and the representatives of a deceased partner on the settlement of the co-partnership accounts. The evidence shows that the deceased, partner, Mr. Robinson, Sr., declared his purpose of having the balance standing to the debit of one of his partners, viz., his son, transferred to his own account in consideration of the unprofitable condition of the business and the faithful attention that his son had given it. The referee finds that Mr. Robinson, Sr., with the intention of canceling his son’s indebtedness, instructed his bookkeeper, Mr. Banger, to transfer his son’s indebtedness to the father’s account, and that Mr. Banger (who died before the hearing of the cause) made a memorandum of such instructions, which was shown to Mr. Robinson, Jr., and which was made pursuant to the instructions the father had given. That finding is justified by the evidence. Regarding the transaction as a gift from father to son, as both parties have presented it, it was not of that incomplete character the referee held it to be. The intention to make the gift had been formed and declared. The subject of it was incapable of actual physical delivery. Steps were 'taken to effectuate it, and directions were given. All that was omitted was a bookkeeper’s ledger entry, and positive instructions liad been given him to make it. He did make a memorandum of those instructions, which he placed in the ledger, hut did not actually make an inscription in the accounts before Mr. Robinson, Sr., died, which event happened -shortly after the transaction. All that Mr. Robinson, Sr., could personally do or had contemplated doing to perfect the gift liad been done. The mode of furnishing the evidence had been appointed by him; the bookkeeper had received his instructions and acted upon them to the extent of reducing them to a written memorandum from which to make the entries, but he merely omitted to post from that memorandum to the lodger. So far as the gift was susceptible of delivery, it was delivered to the common agent of both parties, the agent of the recipient as well as of the giver. Had it been to the sole agent of the giver it might have been recalled, but the partnership bookkeeper received his orders, and they were communicated to young Mr. Robinson, and considering-the subject-matter of the gift, that it was a transaction of accounts only, we think it was complete and irrevocable. The judgment should-be reversed so far as the statement of accounts of the respective partners is concerned, and the accounts should be restated, by charging that of Mr, Robinson, Sr., and crediting that of Mr. Robinson, Jr., with so much of the latter’s indebtedness to the firm as appeared by the books to exist on the 1st day of July, 1886, that being about the date of the assumption by Mr. Robinson, Sr., of that indebtedness.

Yan Rrunt, P. J., concurred; Parker, J., dissented.

Judgment reversed, new trial ordered, costs to appellant to abide event.


author: Per Curiam :

text:
    The Aultman and Taylor Company, Respondent, v. Frederick J. Syme, Appellant.

      Oomputaiion of time — different rule in the ease of a computation by years from that • by days, weeks and months.

    In order to determine whether an execution has been issued within five years after the entry of a judgment the computation of time commences «with, and includes the day, on which the judgment was entered.
    In computing time by years, a different rule obtains from that which obtains in computing time by days, weeks and months, as in the latter case section 27 of the Statutory Construction Law (Chap. 677, Laws of 1892), as amended by chapter 447 of the Laws of 1894, changes the general rule and provides that the day from which the computation is to be made shall bo exclusive of such day, whereas section 25 of the Statutory Construction Law, relative to the computation of time by years, contains no such provision.
    Appeal by the defendant, Frederick J. Syme, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of May, 1895, denying his motion to vacate and set aside orders heretofore made in this action for the examination in proceedings supplementary to execution of Frederick J. Syme and Mary Allen Syme, or that said examinations be suspended until the trial of the action between the parties pending before the court, in which the validity of the execution upon' which the supplementary proceedings were instituted, is raised.

      Edward F. Brown, for the appellant.

      WilUcurn II Blymyer, for the respondent.
   Per Curiam :

It is claimed upon the part of the appellant that the motion to set aside the orders for examination in this case should have been granted because tbe judgment in the action was entered on the 14th of November, 1889, and the execution which formed the foundation of those orders was issued on the 14th of November, 1894, and, therefore, was not issued within five years after the entry of judgment. The question to be determined is whether in the calculation of time, as prescribed by law, the first day is to be included in the computation or not.

It seems to us, upon an examination of the statute in respect to the computation of time, that a different rule prevails in computing any specified .number of days, weeks or mouths from a specified event from that which obtains in the computation of any specified number of years from a specified event. By the provisions of the statute, the day from which any specified number of days, weeks or months of time is reckoned, shall be excluded in making the reckoning (Chap. 447, Laws of 1894, § 27). But the section relating to computation of time by the year contains no such provision (Chap. 677, Laws of 1892, § 25).

In order that the day, upon which the event from which the computation is to be made happens, should be excluded, it seems to have been thought necessary to so provide by legislation — which would not have been the case had this been the general rule in respect thereto.

The computation of time, in order to determine whether an execution has been issued within five years after the entry of judgment, must, therefore, necessarily commence with the day on which the judgment is entered, as there is no provision of law where the computation is made by years, giving the party .the benefit of the exclusion of the day upon which the act is done which sets the limitation running; and as the court in considering the question of time takes no notice of the fraction of a day, that portion of the day which remains after the act is done must be treated as the first day.

It follows, therefore, that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Yan Brunt, P. J., and O’Brien, J.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.


text:
    The People of the State of New York ex rel. The United Verde Copper Company v. James A. Roberts, Comptroller.
   Writ of certiorari quashed, decision of Comptroller affirmed, -with fifty; dollars costs and disbursements. No opinion.


text:
    Richard Elting, Respondent, v. Annie E. Romer, Appellant.
   Order affirmed, with costs and disbursements. No opinion.


text:
    Annie Singleton, Respondent, v. The Prudential Insurance Company of America, Appellant.
   Order affirmed, with costs and disbursements. No opinion.


text:
    Eugene Martineau, Respondent, v. The Town of Santa Clara, Appellant.
   Judgment affirmed, with costs. No opinion.


text:
    The Woodstock National Bank, Appellant, v. The Town of Waverly, Respondent.
   Judgment affirmed, with costs. No opinion.


text:
    Charles W. Cool, Appellant, v. Frances D. Terhune, Respondent.
   Judgment affirmed, with costs. No opinion.