text:
    Charles E. Bullard and Another, Respondents, v. James H. Kenyon and Another, Appellants, Impleaded with Mary C. Harris.

      Judgment — when affirmed on appeal.

      A judgment must be affirmed upon appeal when the persons who aré prosecuting the appeal are in no .way injured or jeopardized, as to person or property, by the judgment appealed from.
    Appeal by the defendants, James H. Kenyon and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Saratoga on the 30th day of December, 1893, upon the decision of the court rendered on a trial at the Saratoga Special Term.
    IT. H. McGall, for the appellants.

      E. G. Bullard, for the respondents.
   Mayham, P. J.:

On the 10th of February, 1881, the plaintiffs obtained a judgment against the defendant James H. Kenyon for $151.31. On the 23d of February, 1891, they caused an execution to be issued and placed in the hands of the sheriff of Saratoga county, where the defendant James H. Kenyon resided. On the 6th of July, 1889, the defendant James H. Kenyon and Ellen M. Kenyon, his wife, mortgaged all or nearly all the personal property in their possession to the defendant Mary C. Harris, who, when the, sheriff sought to seize the property so mortgaged, asserted her right to it under the mortgage and threatened to prosecute the sheriff for selling such property, or any one who should purchase the same at the sheriff’s sale.

The chattel mortgage was never recorded or filed in the town clerk’s office.

To relieve this property from the cloud of the mortgage, so that the same would sell for its true value, under this execution, the plaintiff brought this action, charging that as against their judgment the mortgage was fraudulent and void and asking to have it so adjudged, with costs against Harris, the mortgagee.

As the mortgage had been foreclosed and the mortgaged property taken by Harris before the action was brought, it may be doubted whether the Kenyons were necessary parties to this action, but that question does not seem to have been raised by them on the answer or at the trial, and as the judgment in the action does not charge them with costs, it is difficult to see what interest they have in'this litigation or how they can be benefited by a reversal of this judgment except as to the question of costs on the appeal.

The trial judge found on this trial that the defendants Kenyon were guilty of no active fraud in executing this mortgage, but that the mortgage itself was fraudulent and void, and this last proposition is not seriously contested on this appeal.

Ve see no grounds for the reversal of this judgment, and as the defendants have prosecuted this appeal when the judgment as to them in no way injured or jeopardized them or their - property, it must be affirmed.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs and disbursements.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Edward Christian, Appellant.

      Testimony of an accomplice — what corroboration is sufficient— Code of Criminal Proa. § 399.
    Under the provisions of section 399 of the Code of Criminal Procedure, a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, and it matters not how consistent the narration of the accomplice may be, nor how much it is fortified by detail in the statement itself, or how reasonable and .convincing is the relation of facts by him, it is not sufficient to justify a conviction unless corroborated by such other evidence as tends to connect the defendant with the commission of the crime.
    It is not necessary that the evidence corroborative of that of an accomplice should of itself be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime, nor need the corroborative evidence be wholly inconsistent'with the defendant’s innocence.
    Herrick, J., dissenting.
    Appeal by the defendant, Edward Christian, from an order denying a motion for a new trial and from a judgment of conviction for arson in the first degree.

      Hastings & Schoolcraft and A. A. Yates, for the appellant.

      Da/niel Wa/ylon, Jr., District Attorney, for the respondent.
   Mayham, P. J.:

The principal question raised by the appellant on this appeal is that the conviction was had solely upon the uncorroborated testimony of an accomplice in the .crime, for which the defendant was indicted, tried and convicted.

If that contention is supported to its full extent by the evidence, then the judgment for conviction should be reversed.

The testimony of Mrs. Slocum, that she set fire to and burned this house in the night-time, after she and the' defendant had together saturated the wall and floor with kerosene, and that all she did in the matter was at the request, suggestion and direction of the defendant, is positive and unequivocal. But her connection with the crime renders her testimony insufficient, unless, corroborated, to justify a conviction upon it alone.

Her connection with the commission of the crime, as phe details it, makes her an accomplice with the defendant, and brings her evidence under the condemnation of section 399 of the Code of Oriminal Procedure, which provides that: “ A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” Under this statute it matters not how consistent the narration of the accomplice, how much it is fortified by detail in the statement itself, or how reasonable and convincing the relation of facts by her, it is not enough, unless corroborated by such other testimony as tends to connect the defendant with the commission of the crime.

The respondent calls attention to the testimony of Laura Slocum, a daughter of Martha, who is about thirteen years of age, and corroborates the testimony of her mother as to the times and circumstances of the defendant’s visit to her mother after they moved on Yeeder avenue, up to the time of the fire, and also his visit to and interview with Mrs. Slocum on the morning after the fire, and of his inquiry about the insurance policy, and his inquiry of her as to where she was going, and her information to him that she was going to Mrs. Iveson’s on Strong street, and as to his call at Mrs. Iveson’s in the absence of her mother, telling her at that time that she might have to go down to court, but that she must not mention his name.

This last statement, while not strictly a corroboration of any statement sworn to, is not without its significance on the general question of corroboration of the theory of the prosecution. The testimony of Lulu Slocum, a daughter of the accomplice Martha, but nine years old, is also claimed by the prosecution as a corroboration of the testimony of her mother, in some essential particulars tending to establish the charge against the defendant.

She saw the defendant at her mother’s on Schenectady street, before they moved to Yeeder avenue, and saw him at the house on Yeeder avenue, talking with her mother every day they lived there before the house burned down; saw him there on election day, and on that day got oil for her mother while the defendant was there up-stairs, and says defendant told her to go down the back fence to Centre street so that nobody would see her. Said she should get oil and run back, said her mother gave her two cents, and she got two cents worth of oil and gave it to her mother, and she went up-stairs where the defendant was, and witness then went out, and after-wards saw defendant down-stairs talking with her mother. She also swears that she heard the defendant tell her mother that the best thing she could do was to send the thing up in a balloon, and if she did not she would be sorry for it.

It is also insisted that Martha Slocum is corroborated by several witnesses who saw defendant on the afternoon before the fire in the vicinity of Yeeder avenue with a bundle under his arm similar in description to the one described by Martha as containing the rugs taken by defendant from her house. Other witnesses were called by the People who corroborated the testimony of Martha, upon the same general facts as to which she was corroborated by her children, of defendant’s presence at and about the place of the residence of Martha on Yeeder avenue.

Without further reference here to the evidence we think that the case does not stand alone upon the uncorroborated evidence of this accomplice; but that she is corroborated by other evidence which a jury might fairly and reasonably consider as tending to connect the defendant with the commission of this crime.

Even the defendant himself, on his examination as a witness in his own behalf, testified to some important corroborations of Martha which the jury might fairly consider as leading up to and connected with the commission of this crime. The pawning of the Bible and album; his meeting her near the church, and taking a paper which she had and reading it. These are important corroborations, although he characterises the act of pawning as an innocent act of accommodation, and the reading of the paper as simply the reading of a letter. She gives both acts great significance, one the procuring of the money with which to effect the insurance, and the other the perusal of the policy which, as is claimed, gave a cash value to the property, which it was contemplated by these persons should be consumed by fire.

This evidence, we think, tended to connect the defendant with the crime charged, and was competent for the jury to consider, and thus passed into the domain of facts which may be weighed and ■considered by the jury, and which, if found against the defendant, furnish a support upon which their verdict must be upheld.

It is true that no witness corroborates the accomplice in her testimony as to the application of the match to the oil, at defendant’s direction or suggestion. But when the words of the defendant, that she must send it up in a balloon, are taken in connection with the procurement of the oil; the procurement of the policy, in ■connection with the pawning of the books, the frequent visits of the defendant to the place of residence of the alleged accomplice, the binding up of the rugs with the bundle seen in his possession, and other coincidences, we think the appellate court would not he justified in saying there were no corroborating circumstances proved from which a jury could find that the evidence connected the defendant with the commission of this arsón.

In People v. Elliott (106 N. Y. 292) Earl, J., in discussing the character of corroborating evidence in connection with the evidence of an accomplice sufficient to convict, uses this language: “ All these circumstances certainly have some tendency to corroborate the evidence of the accomplice, and they seem to us to satisfy the requirements of the section of the Criminal Code referred to. Each circumstance taken by itself is quite inconclusive, hut when considered together they certainly furnish some corroborative evidence. It is not necessary that the corroborative evidence of itself should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime, nor need the corroborative evidence be wholly inconsistent with the theory of the defendant’s innocence.” To the same effect is The People v. Everhardt (104 N. Y. 591); The People v. Jaehne (103 id. 182).

Within this rule we think the case properly became one for the jury, and that their verdict cannot he set aside as against evidence. '

We have examined the other exceptions taken by the learned ^counsel for the defendant in this case, and find no error for which this conviction should be reversed.

Putnam, J., concurred; Herriok, J., dissenting.

Judgment of conviction affirmed.


author: Per Curiam :

text:
    Marta Ives, Respondent, v. The Metropolitan Life Insurance Company, Appellant.

      Managing agent of an insv/rance company — different managing agents in different localities — Gode of Oivil Proc. § 431.
    Where a person has the control as the agent of a life insurance company, subject to the direction of the home office, of a district comprising the cities of Troy and Lansingburgh and vicinity, with nine assistant superintendents and sixty-two sub-agents subject to his orders, and has in such district the entire superintendence of all the business of such company, he is a managing agent of the company within the meaning of subdivision 3 of section 431 of the Code of Civil Procedure, and the fact that he is controlled in the discharge of his duties by the home office does not render him any the less a managing agent.
    A corporation may have different managing agents in different localities.
    Appeal by the defendant, The Metropolitan Life Insurance Company, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of .the cleric of the county of Rensselaer on the 14th day of February, 1894, upon a decision of the court affirming the judgment of the Justice’s Court of the city of Troy.
    The service of the summons in the Justice’s Court in this case was made by the constable, by delivering the same to Thomas Corcoran, stated in the certificate of proof of service to be the managing agent of the defendant.

      John De Witt Peltz and William L. Learned, for the appellant.

      Frederick A. Ohew, for the respondent.
   Per Curiam :

"We think- that Corcoran was a managing agent for defendant within the meaning of subdivision 3 of section 431 of the Code of Civil Procedure. He had the control, subject to the direction of the home office, of the district comprising the cities of Troy and Lansingburgh and vicinity, with nine assistant superintendents and sixty-two sub-agents subject to his orders. In. that district he had the entire superintendence of all the defendant’s business.

It has been well settled that subdivision 3 of section 431 (supra) means not the but a managing agent, and hence a corporation may have different agents in different localities. (Brayton v. The N. Y., L. E. & W. R. R. Co., 72 Hun, 602, 603; Palmer v. The Penn. Co., 35 id. 369.)

We tliink that one having the Entire charge of defendant’s business and sub-agents over so large a territory as Corcoran did must be deemed a managing agent. That he was controlled in the discharge of his duties by the home office does not render him any less a managing agent. An agent is a person acting in behalf of another. He is supposed to carry out -the directions of the principal. All his acts are deemed those of the person he represents. Therefore, Corcoran, although his acts were performed under the direction of defendant’s officers at the home office, yet, as he in his district was the sole representative and performed therein all its business, he was a managing agent on whom service of process could be properly made.

We think the remarks of Dwight, J., in The R. H. & L. R. R. Co. v. N. Y., L. E. & W. R. R. Co. (48 Hun, 190, 192) are applicable to this case, viz.: “All the servants of the company engaged in the promotion of the work in question were acting under his orders. The work was done under his personal supervision and direction. He was the managing agent of the defendant in respect to all matters local to the important division of which he was superintendent. * * * He was the officer who received from the chief authorities * * *■ all general orders pertaining to the management and operation of his division, and he must have been the officer chiefly relied upon to transmit to those authorities all information respecting its condition and requirements. He was the officer whose position, rank and duties made it, in. the language of the opinion in Palmer v. The Pennsylvania Company (35 Hun, 369; 99 N. Y. 679) ‘ reasonably certain that the defendant will be apprised of the service made.’ ” (See, also, Barrett v. The American Tel. & Telegraph Co., 31 N. Y. St. Repr. 465; 138 N. Y. 491.)

We, therefore, conclude that the judgment of the County Court should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Putnam, J.:

text:
    Norman Clapper, Appellant, v. William E. Kells, Respondent.

      Covenant by a landlord to Iceep premises in repair — evidence as to the damage sustained by reason of a breach thereof.

    Proof of the price paid for certain ice and of the amount that the purchaser thereof said he would have paid therefor if the icehouse in which it was had been in good repair is not competent evidence to establish the damage sustained by the owner of such ice by reason of the breach by his landlord of a .covenant in his lease whereby the landlord agreed to keep the icehouse in good repair.
    Appeal by the plaintiff, Norman Clapper, from a judgment of the County Court of Rensselaer county in favor of the defendant, 'entered in the office of the clerk of the county of Rensselaer on the 7th day of September, 1892, upon tlie decision of the court affirming the judgment of a justice of the peace of the town of Nassau, Rensselaer county.

      Nelson Webster, for the appellant.

      Alfred A. Guthrie, for the respondent.
   Putnam, J.:

This action was brought in a Justice’s Court to recover on an alleged claim for rent, goods, chattels and labor. The defendant in his answer, besides a general denial, set up several counterclaims. The third alleged counterclaim was for damages sustained by him in consequence of the failure of plaintiff to fulfill an agreement to repair an icehouse leased by plaintiff to defendant. The case was tried before a justice and a jury and the defendant obtained judgment against the plaintiff in the action for forty-nine dollars and twenty cents damages and costs. The jury, therefore, must have allowed the defendant his counterclaim or some part thereof.

On the trial, the written lease executed by plaintiff to defendant was received in evidence, and it contained a covenant on the part of plaintiff to keep the premises rented in good repair. There was testimony showing that plaintiff had failed to perform this covenant. The defendant was, therefore, entitled to recover whatever damages he had sustained. But, after a careful examination of the testimony contained in the case, we are unable to discover any proper evidence on which the jury could estimate the damage resulting from such breach of covenant. There was no proof whatever as to what extent the ice melted or was damaged in consequence of plaintiff’s failure to repair the icehouse. There was no satisfactory proof as to what repairs the icehouse needed, or to show how much less the’ ice was worth in consequence of plaintiff’s breach of covenant than it would have been had that covenant been performed. In fact, the judgment seems entirely unsupported by the evidence. The testimony given on the trial as to what ITayes paid for the ice and what he said he would have paid for it had the icehouse been in good repair was so clearly not competent to show damage that it is unnecessary to discuss the matter.

On the trial, also, objections of the plaintiff to clearly improper evidence offered by defendant was overruled by the justice. Por instance, defendant having shown that he sold the ice for $300 and asked $500 for it, the following proceedings were had: “ Q. Did purchasers at the time of purchase state the reason for refusing to pay the sum of $5001 [Objected to as immaterial and as calling for a conversation between third parties in absence of plaintiff. Objection overruled.] A. Tes, sir. Q. What was the reason? [Objection same as before. Overruled.] A. Because the icehouse was in such bad shape. Q. What further did they say? [Objected to same as before and upon the further ground as not a proper rule of damages. Overruled.] A. They said they would not give but $300 just as it was. I took the $300. They would have given me $400 if the ice was in good shape.”

It requires no discussion or citation of authorities to show that the above evidence so objected to by plaintiff was hearsay and improper.

Other objections of the plaintiff to incompetent evidence offered by the defendant were erroneously overruled by the justice. Por instance, plaintiff claimed to recover of defendant for an ice bar. The justice allowed the following question to be asked of the witness Hayes: Q. State what, if anything, Win. Garrison said to you in regard to the ice bar ? [Objected to as conversation between third parties, hearsay, improper and immaterial. Objection overruled.] A. He said the bar was his.”

It follows that the judgment of the courts below must be reversed, with costs to appellant in this court and in the County Court.

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

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


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    The People of the State of New York, Respondent, v. Philip W. Frederick, Appellant.

      Disorderly person — failure of a husband to provide a home for his v>ife — the good faith of an offer of a home to be determined by the magistrate.

    Wliere a husband offers in good faith to provide, and tenders, a suitable home for his wife, and she fails to accept the support so provided or tendered by her husband, he cannot be deemed a disorderly person.
    It is a question for the magistrate to determine whether an offer by a husband to provide a home for his wife was made in good faith and with the intention of carrying it out.
    Appeal by the defendant, Philip ~W. Frederick, from a judgment of the Court of Sessions held in and for the county of Fulton on the 3d day of July, 1893, affirming a judgment of a justice of the peace of the town of Johnstown, Fulton county, convicting the defendant of being a disorderly person within the intent and meaning of section 899 of the Criminal Code, with notice of an intention to bring up for review on such appeal the judgment rendered and the final order made and all the proceedings bad therein.

      Frank L. Anderson and II. Peck, for the appellant.

      p[. D. Wright, District Attorney, for the respondent.
   Putnam, J.:

Defendant was convicted before a magistrate as a disorderly person under the provisions of section 899 of the Code of Criminal Procedure and the judgment of conviction was affirmed by the Court of Sessions of Fulton county. The complainant and defendant were married on January 1,1891, and it was alleged that defendant had abandoned his wife and failed to support her since April 1, 1892.

There was testimony before the magistrate tending to establish the truth of the charge made. But the defendant on the trial proved that on several occasions he had offered to provide the complainant with a home and support at his father’s house, and that she had declined to accept such offer. And defendant testified that he was unable to furnish her with support at any other place.

The appellant insists that the offer and complainant’s refusal to accept it was an answer to the charge made against him, and that the magistrate erred, therefore, in rendering a judgment of conviction, within the cases of Lutes v. Shelley (40 Hun, 197); People v. Pettit (74 N. Y. 320).

In the cases cited the offers of the husband were held to have been made in good faith, and tendered a suitable home for the wife, and, hence, if she failed to accept the support so provided by the husband, he could not be deemed a disorderly person. The rule laid, down in those cases must govern this if the evidence was such that the magistrate should have found that defendant’s offers were made in good faith and not with a fraudulent intent to evade the provisions of the statute.

It was shown on the trial that thes defendant had offered to provide a home and support for the complainant at his father’s house. That she went there on December 29, 1891, and saw defendant, his father and sister. She told the defendant that she had come to see the rooms prepared for her ; he answered he was sick and could not show them that day, and closed the • door, leaving her on the outside. On January 4, 1892, she again went there, and was told by appellant’s mother that she wanted her to get out of there, and the door was closed in her face. Afterwards complainant again went to the house of appellant’s father, and said to defendant’s mother, who came to the door: “ Philip told me here is where I was to get my support, and I have now come to accept his offer.” She was unable to obtain access to the house, and was told to go home.

The witness Palmateer also testified to the statement of defendant, that “ as circumstances stood now his hair would be grayer than it is now before he would support or live with his wife.”

Whether complainant, after trying three times unsuccessfully to obtain admission to the house of defendant’s father, should have made another attempt, was, we think, under the evidence, a question for the magistrate. He could very well find, under the circumstances of the case, that defendant’s offer was insincere, and made with intent to evade the provisions of the statute.

We think this case is similar to that of The People v. Harris (38 N. Y. St. Repr. 316); and, as held in that case, it was a question for the magistrate to determine whether the offers of the appellant were made in good faith, and with intention to carry out the offer, “ and that, under the circumstances, a conviction based on a belief that it was not, would not be interfered with.”

We have examined the various exceptions taken on the trial and the rulings of the magistrate, and are of opinion none of them require a reversal of the judgment.

It follows that the judgment should be affirmed.

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

Judgment affirmed, with costs.


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    James J. Fitzgerald and Others, Appellants, v. Edgar M. Payn and Others, Respondents.

      Decision of a motion on a contested question of fact — not disturbed on appeal — statements in an affidavit as to the residence of a person.

    The decision on a motion at Special Term, of a disputed question of fact involved therein on conflicting evidence, will not be disturbed by the appellate court.
    A statement in the affidavits used in opposition to a motion to change the place of trial of an action, that the plaintiffs after making a specified contract moved to Coxsaclde, closed up their business in Hudson, changed their address, transacted their business in Coxsaclde, etc., does not show that they did not continue to reside at Hudson, and an allegation therein that the plaintiffs lived in Coxsaclde, occupying a dwelling house there, and cultivated a farm of forty-five acres in said town, may be true, and yet the place of residence of the plaintiffs may never have been changed to Coxsaclde.
    Appeal by the [ilaintiffs, James J. Fitzgerald and others, from an order of the Supreme Court, made at the Albany Special Term on the 13th day of January, 1894, and entered in the office of the clerk of the county of Greene, changing the place of trial of the action.

      James J. Fitzgerald, for the appellants.
    ' Worthington Frothingham, for the respondents.
   Putnam, J.:

It was held, by this General Term in Lane v. Town of Hancock (29 N. Y. St. Repr. 635) that on a motion to change the place of trial for the convenience of witnesses the decision of the Special Term on a question of fact presented by conflicting affidavits should not be ordinarily interfered with by the General Term. In Henderson v. Jackson (2 Sweeney, 603) it was also held that the decision of a motion by a Special Term on conflicting evidence will not be disturbed by the appellate court on a disputed fact involved therein. In this case a question of fact was presented to the Special Term as to whether two of the plaintiffs resided in the city of Hudson or in the county of Greene ; that said defendants had shortly before the commencement of the action resided in Hudson was conceded. But the plaintiffs claim that before the commencement of the action and in 1892 they had removed from the city of Hudson to Greene county.

The affidavits of the plaintiffs are not satisfactory to me. "What is meant by stating therein that the said two defendants are residents of the county of Greene according to the well-known construction of section 984 of the Code of Civil Procedure,” I am unable to determine. The statements in the affidavits read by plaintiffs that said “firm after the making of the contract moved to Coxsackie,” closed up their business in Hudson, changed their address, transacted their business in Coxsackie, etc., do not show that the members did not continue to reside at Hudson. The allegation in said affidavits that the defendants Michael and John lived in Coxsackie, occupying a dwelling house there, and cultivated a farm of forty-five acres in said town, may all be true, and yet the place of residence of said defendants, may have never been changed from ■ Hudson.

It will be observed that the plaintiffs do not contradict the allegation in the moving affidavit that in November, 1893, long after they claim to have changed their residence, they caused themselves to be registered at Hudson and voted there. This allegation, not being denied, must be assumed to be true. If, in fact, said defendants, immediately before the commencement of the action and in November, 1893, a long time after they claimed to have changed their residences, actually voted in the city of Hudson, it may be doubted whether they could be considered as residents of Greene county, according to the well-known construction of section 984 of the Code of Civil Procedure,” or in any other view.

Without, however, discussing the affidavits, I think that a fair question was presented to the Special Term for its decision on conflicting affidavits, and that its holding should not be disturbed by us under doctrines established by the authorities above cited and kindred cases.

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

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


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    The American Society for the Prevention of Cruelty to Animals, Plaintiff, v. The City of Gloversville, Defendant.

      Penal Oode, % 668, applies throughout the State — money paid by a magistrate to a city, when may be recovered by the owner by action.

    The prosecutions referred to in section 668 of the Penal Code, when conducted anywhere in the State of New York, are governed by the provisions of that section, and that section must, in the absence of any expressed provision of statute explicitly referring to and directly repealing, altering or amending that section (as provided in section 728), be deemed to apply to the city of Gloversville.
    Where a person is entitled on demand to money in the hands of a magistrate, he is entitled to recover the amount thereof, after demand, in an action brought against the city to which such magistrate has paid the same.
    Submission of a controversy without action on an agreed statement of facts under section 1219 of the Code of Civil Procedure.

      Horace Russell and Jabish Holmes, Jr., for the jilaintiff.

      Edgar A. Spencer, for the defendant.
   Mayham, P. J.:

The stipulation of facts submitted in this action shows that the plaintiff is a domestic corporation organized under the laws of this State to prevent cruelty to animals, under chapter 469 of the Laws of 1866, with some of its powers and ditties regulated and defined in chapter 315 of the Laws of 1861; chapter 12 of Laws of 1814; section 668 of tlie Penal Code and chapter 490 of Laws of 1888. The defendant is a municipal corporation organized under the provisions of chapter 55 of the Laws of 1890.

On the 21st of August, 1891, a fine of five dollars was imposed upon and collected of one Lewis Messer by the recorder of the city of Gloversville, the defendant. And on the twenty-ninth of October of the same year a fine of eight dollars was imposed by the same magistrate on and collected from Thomas Hughes. Both fines were imposed and collected for violations of the Penal Code, relating to cruelty to animals.

The proceedings in which both these fines were collected were instituted and prosecuted by the plaintiff, and when the fines were received by the magistrate they were respectively demanded of him by the plaintiff, and by him refused, and the money collected was paid by the magistrate to the city chamberlain of the defendant, who credited it to the police fund of the defendant.

After such payment the plaintiff presented a duly verified claim for such money to the common council of the defendant, which refused and still refuses to pay the same to the plaintiff.

Upon these facts the opinion and decision of this court is asked. The plaintiff claims the money under the provisions of section 668 of the Penal Code, which is as follows: All fines, penalties or forfeitures imposed or collected for a violation of the provisions of this title, or of any act for the prevention of cruelty to animals now in force or hereafter passed, must be paid on demand to the American Society for the Prevention of Cruelty to Animals, except where the prosecution shall be instituted or conducted by a society for the prevention of cruelty to animals duly incorporated under the general laws of this State, in which case such fine, penalty or forfeiture must be paid on demand to such society.”

This provision of the Penal Code, unless the same has been in ■express terms repealed, or modified by some subsequent act of the Legislature, seems to be controlling. But it is insisted that the provisions of the Penal Code above quoted antedates that of the act incorporating the city of Gloversville, and as the charter of that ■city contains in itself ample authority to deal with all violations of law of this character, it amounts in effect to a repeal, so far as that city is concerned, of this provision of the Penal Code; and in support of that contention we are referred to section 10 of title 9 of chapter 55 of the Laws of 1890. That section requires the recorder to make and file a monthly statement of all fines and penalties imposed and collected b'y' him, and to pay the same over to the chamberlain. While this provision, in the absence of any qualifying provision of law, authorizes and supports the contention of the defendant, it does not amount to an express repeal of the provisions of section 668 of the Penal Code. At most it would be but a repoal by implication. But such repeal is expressly forbidden by the last, section of the Penal Code. Section 728 of that Code provides as follows : “No provision of this Code, or any part thereof, shall be deemed repealed, altered or amended by the passage of any subsequent statute inconsistent therewith, unless such statute shall explicitly refer thereto, and directly repeal, alter or amend this Code-accordingly.”

With this .positive provision of law upon this express subject, we do not see how* we can hold that the city of Gloversville is entitled to these penalties, or can claim to hold the same against the express provision of the statute, which says that such penalties “ must be-paid on demand to the American Society for the Prevention of Cruelty to Animals.” That provision relates to these prosecutions anywhere in the State, and must, in the absence of any express provision of statute to the contrary, be deemed to apply to the city of Gloversville. The case of The Village of Gloversville v. Howell is not an authority against this conclusion.

With the policy of this law discussed by the learned counsel for the defendant we have nothing to do. His argument maybe sound if addressed to the Legislature upon that subject, but we are only called upon to declare wliat the law is. As the plaintiff was entitled to this money on demand from the magistrate when it was in his hands, we see no reason why the defendant should not, after-demand by the plaintiff of it, be entitled to recover it in an action.

Let the judgment be entered in favor of the plaintiff against the defendant, with costs.

Putnam and Herrick, JJ., concurred.

Judgment for plaintiff, with costs and disbursements.


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    In the Matter of Proving the Alleged Will of Gilbert Palmateer, Deceased.

      Probate of will — declm'ation of testator — undue influence, sufficient to pt'event the probate of a will — Code of Civil Procedure, § 829 — evidence inadmissible thereunder.

    The declarations of a testator, made .either before or after the execution of his will, are not competent evidence to impeach its validity on the ground of fraud, duress, imposition or other like cause, hut such declarations are admissible where the will is attacked upon the ground of want of testamentary capacity, as evidence merely of the mental condition of the testator.
    The fact that a testator resided with, or in close proximity to, the persons alleged to have unduly influenced him in the making and execution of his will, some of whom were the principal beneficiaries therein named, is not a circumstance sufficient in itself to justify the conclusion that his will was the result of undue influence, where the will was not drawn by any of the beneficiaries, and where the evidence failed to disclose the fact that any of such persons gave any instruction or direction to the draftsman of the same.
    Undue influence or restraint, sufficient to justify the refusal to admit to probate an instrument propounded as the last will and testament of a decedent, must he a restraint operating upon the testator at the time of making the will, dominating his will and judgment and coercing and controlling his action.
    A person interested in an estate cannot, under the provisions of section 829 of the Code of Civil Procedure, testify to a conversation had between the testator and another, in which the witness takes no part.
    Appeal by Maggie Palmateer and another, the executrices named in the alleged will of Gilbert Palmateer, deceased, from so mncb of an order and decree of tbe Surrogate’s Court of the county of Ulster, entered in tlie Ulster County Surrogate’s Court on tlie 31st day of December, 1892, as decrees that tlie probate of tbe paper offered as tbe last will and testament of the said deceased be denied, with, costs to be paid out of tbe estate.

      S. G. Carpenter and A. T. Clearwater, for tbe executrices and legatees, appellants.

      Eldorus Dayton and D. W. Ostrander, for tbe contestants, respondents.
   Mayham, P. J.:

This is an appeal by tbe proponents, as executrices and legatees named in an instrument purporting to be tbe last will and testament ■of Gilbert Palmateer, deceased, from a decree of the surrogate of Ulster county refusing to admit such instrument to probate as the will of said deceased, and directing the payment of costs of said contestants out of the estate of the deceased, on the ground that Gilbert Palmateer was unduly influenced in making said will.

The surrogate found and decided that the alleged testator was, at the time of making the instrument propounded as his last will, of sound mind, rational and competent to make a will, so that the only question presented bj^ this appeal is whether such instrument was made and procured by undue influence.

The will was dated June 15,1889, and the deceased died January 25, 1892, at the age of about seventy-nine years.

The deceased had been twice married, his first wife dying about the year 1850, leaving four children, the fruit of such marriage, three of whom survived the testator and one of whom died before the testator, leaving two sons, both of whom survive him. By his second marriage he had three children, all of whom, .with his second wife, survived him.

In his will the testator bequeathed to his wife $100, the use of two rooms in his house and of any furniture she might wish for the same for life in lieu of dower. To his two unmarried daughters he gave the furniture the use of which was given his wife for life. To two of his daughters by his first marriage and the three daughters by his second marriage he bequeathed $100 each. To his two grandsons, sons of the deceased daughter by his first marriage, he devised two farms, to be divided between them at the majority of the youngest, and also bequeathed $100 to each of said grandsons.

All of the residue of his estate, real and personal, he devised and bequeathed to his two unmarried daughters, children of his second wife. The testator in his lifetime conveyed' by deed for nominal .consideration, real estate valued at about $20,000 to his daughters, the larger share of which was conveyed to the children of his second marriage, but one of the farms valued at about $2,000 was conveyed to a daughter by his first marriage; at about the same time he assigned securities valued at about $12,000 to his second wife and her daughters. t

One of the testator’s daughters by his first wife, with her husband, had had bitter and protracted litigation with the testator, and to that daughter the testator seems not to have made any advances by deed or assignment of securities, nor is she a beneficiary named in his will, and she appears as one of the contestants in the proceedings, before the surrogate on the application to prove the same.

The surrogate in the examination of the question of undue influence allowed a wide range of investigation by the evidence showing: the relations between the testator and his second wife, and her government and treatment of the children of the first wife, who by the second marriage were committed to her government and care, and that evidence disclosed in some instances treatment of severity, if not cruelty, exercised by this stepmother of these children by the former marriage, but these daughters were all married, and had left the paternal home many years before the making of this will, and while such evidence might bear in a very remote degree upon the. question of undue influence, it fell far short of establishing any such control over the mind and will of the testator as to interfere with the testamentary disposition of his property, even if this evidence stood unchallenged or undisputed.

But the proponents'introduced evidence tending to show that the conduct of this stepmother was kind, affectionate and humane towards, these children.

There was also evidence offered on the part of the contestants, tending to show that the second wife and her children attempted by arguments, persuasions and even threats to coerce and control the-testator in the disposition of his property by his will, and as evidence bearing upon that subject the contestants introduced evidence of the declarations of the testator which it is claimed tended to show that he yielded to the dictation and control of his wife and daughters, or was so far influenced by their conduct in that regard that he did not follow his previously expressed wish or determination to-make an equal distribution of his property between all of his. children.

But it is insisted on the part of the appellants that as the testator at the time of making this will was of sound and disposing mind and competent to make a will, as found by the surrogate, and as none of these declarations were made at the time of making the will, and are not, therefore, a part of the res gestee, they are inconrpetent and cannot be considered and treated as evidence to affect that instrument. The declarations relied upon by the contestants cover a period of several years before the execution of the will, and standing alone are not enough, we think, to prove undue influence or fraud at the time of its execution.

In Waterman v. Whitney (11 N. Y. 157) Judge Selden, after .a very exhaustive review of this subject, in which he examines the .authorities in England, in other States of this" Union and in this State, sums up the result of his research in this language : “ These .cases must, I think, be sufficient to establish the position, that .declarations of a testator, made either before or after the execution of the will, are not competent evidence to impeach its validity .on the ground of fraud, duress, imposition or other like cause.”

The learned judge, in the further discussion of this question, .conceded the admissibility of the declarations of a testator where the will is attacked upon the ground of want of testamentary capacity, .and shows that their admissibility on such inquiry stands upon an entirely different principle from the one sought to be applied here, and he adds: “ The difference is certainly very obvious betwreen • receiving the declarations of a testator to prove a distinct external ■fact, such as duress or fraud, for instance, and as evidence merely of •the mental condition of the testator.

“ In the former case it is mere hearsay and liable to all the objection to which the mere declarations of third persons are subject; while •in the latter it is the most direct and appropriate species of evidence.” Considered, therefore, as evidence upon the question of mental ■ .competency, this evidence was proper. But after hearing this evidence the learned surrogate held that the testator was of sound and disposing mind and memory and competent to make a will.

'Within the light of these authorities we cannot consider the .declarations of the testator, upon the question of fraud, duress, imposition or other like causes; and with this evidence excluded from consideration the finding of the learned surrogate in his fourth and fifth findings of fraud, circumvention, deceit and evil practices, by which the natural affections of the testator for the contestants* were alienated and the will was procured to be executed by Hannah Palmateer, Martha E. Palmateer, Maggie F. Palmateer, Mary T. Koons and Alphonso J. ICoons, is not sustained.

Nor do we think the fact that the testator resided with or in close proximity to the persons last named, some of who were the principal beneficiaries in his will, a circumstance sufficient in itself under the evidence in this case to justify the conclusion that the will ivas the result of undue influence.

The will was not drawn by any of the beneficiaries. Nor does the evidence disclose the fact that they or any one of them gave any instruction or direction to the draftsman of the same. On the contrary, the draftsman testified that no one talked with him about the will except the testator, who alone was with • him when the instructions were given and the will was drawn. This evidence is not contradicted or questioned. The testimony of the draftsman, who is a reputable lawyer, on the subject of the drawing and execution of this will, is as follows: “ Q. State when you went to draw the will of Mr. Palmateer just what took place ? A. I went in the sitting room and he told me about how he wanted the will and I got it up. He told me himself. We were alone in the room, and tjhe other witness did not come in until it was completed. He told me what to write and what he wanted. I drew it in that manner, and when it was complete called in the other witness. No one else gave me any directions in addition to him. There was no one in the room at the time it was drawn, except perhaps members of the family who came in and went right out, but did not say anything to us. He signed his name op|>osite the seal at the end of the will. I asked him in the presence of this other witness -if he acknowledged this to be his signature •— I always do this — if he declared this to be his last will and testament; and he said yes; ’ if he requested Mr. Edward L. Tompkins and myself to sign as witnesses, and he said (yes.’ After he signed his name we signed our names in the presence of him and in the presence of each other as witnesses to the will. I saw him sign the will and I saw the other witness sign the will. I read the will over to him after I drew- it. Pie said it was all right after I read it over. I do not remember whether I drew more than one copy, but lie knew the contents of it and he was satisfied. Before the witness came in he knew all the provisions. He was over twenty-one years of age. I have known him for about thirty-two or thirty-three years.”

This evidence it seems to us falls far short of establishing undue influence. If we assume that the evidence in this case was such as to shift the burden of proving the absence of undue influence upon the proponents, instead of requiring the contestants, who assert undue influence, to prove it, still the evidence of the circumstances of the preparation and execution of the will would establish such absence. But in this case we see nothing in the evidence calculated to shift the burden from the contestants to the proponents.

In Matter of Will of Martin (98 N. Y. 196) Daneorti-i, J., after stating the circumstances attending the execution of the will of the testator, uses this language : The case then is one where the testatrix had testamentary capacity, a present knowledge of the contents of the will, and where, at its execution, she was surrounded by all the guards which the statute has prescribed to prevent fraud and imposition. A will executed under these circumstances can be avoided only by influence amounting to force or coercion and proof-that it was obtained by this coercion. The burden of proving it is on the party who makes the allegation. These principles are well settled.” (Citing Tyler v. Gardiner, 35 N. Y. 559; Cudney v. Cudney, 68 id. 148.)

Such undue influence or restraint must be a present restraint operating upon the testator at the time of making the will, dominating the will and judgment of the testator and coercing and controlling his action. (McMahon v. Ryan,, 20 Penn. St. 329 ; Eckert v. Flowry, 43 id. 46.)

In The Matter of the Will of Snelling (136 N. Y. 517) O’Brien, J., says: “ So long as her mental powers enabled her to understand and appreciate the amount and condition of her property, and to comprehend the nature and consequences of her act in executing the will, she was at liberty to dispose of her own in such manner as seemed best to her, providing the disposition was her own free act. What the law terms undue influence is not established by proof tending to show that the testator acted from motives of affection or gratitude though the objects of her bounty were strangers to her blood. The influence or moral coercion, or by whatever other 'term designated, must be such as to overpower the will of the testator and subject it to the will and control of another, in which case it assumes a character of fraud.” (Horn v. Pullman, 72 N. Y. 276; Clapp v. Fullerton, 34 id. 190; Hollis v. Drew Theological Seminary, 95 id. 166; Marx v. McGlynn, 88 id. 370.)

Starting, therefore, as we do with the fact established that the testator was, at the time of the execution of this will of sound and disposing mind and competent to make a testamentary disposition of his property, we think, that the learned surrogate erred in finding and deciding that the will was the result of fraud or undue influence and in refusing to admit the same to probate.

We think that the surrogate erred also in the admission of evidence of a conversation between the testator and his wife in the presence of one of the daughters, who was interested in the event of this contest, to be given by the daughter under proponents’ objection that it was not admissible, under section 829 of the Code of Civil Procedure. The daughter, who was interested in the event, was permitted to give statements made by her father to her mother bearing upon the questions involved in this controversy.

Such evidence has been held inadmissible. In Matter of Will of Eysman (113 N. Y. 62) it was held that a person interested in the estate could not testify to a conversation between the testator and another in which the witness took no part. It is true that the courts will not reverse for such errors unless the court can see that the party appealing was injured by its reception. (§ 2545, Code.) But if the evidence offered was illegal, it seems to have been upon the relations between the testator and his second wife, bearing upon the question of undue influence, and was, therefore, material, and its erroneous reception injurious to the appellant.

The decree of the surrogate must be reversed, with costs to the appellants of this appeal to be paid out of the estate, and as the determination involves questions of fact, and the appeal was taken from a decree made on a petition to prove a will, an order must be made directing a trial by jury of the material questions of fact arising upon the issue between the parties, under section 2588 of the Code of Civil Procedure.

Putnam, J., concurred; Herrick, J., concurred in the result.

Decree of surrogate reversed, with costs and an order directing a new trial by jury.


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

text:
    John J. Sheldon, as Administrator, etc., of Mary E. Sheldon, Deceased, Respondent, v. Rufus Heaton, Appellant.

      Denial of knowledge or information■ — cannot he stricken out as frivolous or inconsistent.

    Where an answer contains a denial in either of the forms prescribed by section 500 of the Code of Civil Procedure, an issue is presented such as was raised by the plea of the general issue before the Code, and such denial cannot on motion be stricken from the answer as frivolous.
    An answer denying any knowledge or information sufficient to form a belief as to the truth of the material allegations contained in a complaint, cannot be stricken out as frivolous, and it is only when the allegation of want of information relates to some affirmative allegation of defense, not putting in issue the allegations of the complaint, that it can be stricken out as frivolous.
    The fact that a denial'contained in an answer is inconsistent with other portions thereof, is not a good ground for striking out such denial.
    Appeal by the defendant, Rufus Heaton, from an order of the Supreme Court, made at the Warren Special Term and entered in the office of the clerk of the county of Clinton on the 16th day of November, 1893, striking out a portion of the defendant’s answer as frivolous.

      James B. Stearns and G. II. Beckwith, for the appellant.

      Wilmer II. Dxtnn, for the respondent.
   Mayham, P. J. :

This action was prosecuted to recover upon an alleged writing, claimed to have been executed by the defendant, in the following words and figures:

“ $178.33. Due Mrs. M. E. Sheldon, one hundred and seventy-eight 33-100 dollars.

R. HEATON.

“Rouses Point, April 29, 1863.”

The complaint alleged that the sum specified in the due bill above set out was deposited by Mrs. Sheldon, now deceased, with the defendant at the date of that instrument to keep for her; that on the 20th of June, 1893, plaintiff, as administrator, demanded payment of the same from the defendant, which was refused.

The answer first denied the complaint in the following language: “ The defendant denies any knowledge or information sufficient to form a belief as to each and every allegation in said complaint contained.” The answer also sets up the Statute of Limitations, and also, separately, payment, satisfaction and discharge of all indebtedness to the plaintiff.

The plaintiff moves to strike out this denial as frivolous and also inconsistent with each and all of the succeeding allegations. The motion was granted on the ground that the denial was frivolous, with costs, and the defendant appeals.

More than thirty years had intervened between the date of the due bill and the demand, a period in which the defendant might well have forgotten the giving of the note, if genuine, or having no recollection of such an event, might well hesitate to trust his memory to make a positive denial.

Under such circumstances he should not be compelled to admit the truth of the complaint by failing to deny, nor should he be compelled positively to deny, when by a failure of memory it might turn out that his denial was false. To relieve a defendant from such a condition the Legislature provided for a verification in substance like the one under consideration.

Subdivision 1 of section 500 of the Code provides that the answer of the defendant must contain :

“ First, a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.”

This provision of the Code prescribes the method by which the defendant may put in issue the allegations of the plaintiff, and thus put him upon his proof. Failing to make such denial, the defendant is deemed to have admitted the allegations of the plaintiff’s complaint, and relieved him from making proof thereof. In whichever form the denial is made, it presents an issue such as was raised by the plea of general issue before the Code.

Such an answer cannot be stricken out on motion as frivolous. (Thompson v. The Erie Railroad Co., 45 N. Y. 468; Wayland v. Tysen, Id. 281; Abernethy v. Knight, 50 id. 613 ; Jones v. Ludlum, 14 id. 61.)

None of the cases to which we have been referred decide that an answer denying any knowledge or information sufficient to form a belief of the truth of the material allegations of the complaint can be stricken out as frivolous. It is only when the allegation of want of information, relates to some affirmative allegation of defense, not putting in issue the allegations of the complaint, that it can be stricken out as frivolous.

Nor is the objection .that the other portions of the answer are inconsistent with the denial a good ground for striking out the same. Section 507 of the Code of Civil Procedure authorizes a defendant, in the manner therein named, to set up as many defenses and counterclaims as he may have, and, as we have seen in Woods v. Reiss the denial cannot be stricken out as inconsistent with the other defenses. (Bruce v. Burr, 67 N. Y. 237; Goodwin v. Wertheimer, 99 id. 149 ; Societa Italiana v. Sulzer, 138 id. 468.)

The principle seems to be settled in these cases that a denial will not be striken out because it is inconsistent with other defenses interposed in an answer.

For these reasons we think that the order of the Special Term should be reversed.

Herrick, J.:

I concur. (See Grocers’ Bank v. O'Rorke, 6 Hun, 19; Becker v. Weisner, 22 Alb. L. J. 156.)

Order reversed, with ten dollars costs and printing and other disbursements, with ten dollars costs at Special Term.

         See page 78, post.


text:
    John Hardwick, Plaintiff, v. The Royal Food Company of New Jersey and Others, Defendants. Thomas E. Ferrier, Claimant, Appellant.

      Action for the foreclosure of a mechanic’s lien — all liens of defendants may be foreclosed, — failure to answer — a judgment cannot be attacked collaterally — relief granted by courts of equity.

    In an action brought to foreclose a mechanic’s lien, prosecuted in a court of general jurisdiction which, upon the service of the necessary process and pleadings, acquires jurisdiction of the persons of all the parties and of the subject-matter of the action, all the liens, both of the plaintiff and the defendants, can be foreclosed.

      In an action brought to foreclose a mechanic’s lien, if the lien of a defendant is improperly stated in the complaint, such defect can be corrected by answer, but when a defendant is before the court, and has an opportunity to answer and fails to do so, and judgment is rendered against him, or is entered in such a manner as to prejudice his rights, such judgment, until set aside or reversed, is conclusive upon him and cannot be attacked by him collaterally.
    In courts of equity the relief administered is flexible, adapted to the exigencies of the case in hand, and when they have control of the parties they can make a full determination in the matter.
    Appeal by Thomas E. Ferrier, as trustee, a claimant to the surplus moneys in this action, from an order of the Supreme Court, made at the Greene Special Term and entered in the office of the clerk of the county of Greene on the 27th day of October, 1893, confirming the report of a referee appointed to ascertain and report as to the priority of liens upon surplus money.

      Franlt 3. Osborn, for the appellant.

      James B. OVney, for the respondents.
   Mayham, P. J.:

A sale under a judgment of foreclosure in the above-entitled action on a mortgage on real estate of which, the defendant, The Royal Company, had the legal title, subject to the mortgage, was perfected on the 18th of April, 1893, leaving a surplus of $893.76, which was deposited in the county treasury.

The mortgage on which this foreclosure was had was dated March 31, 1890, and recorded May fifth of the same year. The premises covered by the mortgage were conveyed to the defendant, The Royal Food Company, April 1, 1891.

August 10, 1891, the Posts as partners filed a mechanic’s lien against the premises sold on such foreclosure sale for labor and material for $804.85.

September 18, 1891, Conklin filed a notice of mechanic’s lien claiming $600.60.

October 16, 1891, Hill filed notice of a mechanic’s lien on the premises claiming $380.40.

December 14, 1891, Johnson filed notice of mechanic’s lien on the premises claiming $140.08.

On the 19th of November, 1891, the Royal Food Company executed and delivered to William Onderdonk, to secure the payment of $15,000 and interest one year from date, a mortgage on these premises which was recorded on the 23d of November, 1891. The mortgagee, Onderdonk, assigned this mortgage on the 9th of September, 1892, by an assignment which was acknowledged on the fifteenth of that month to Thos. E. Ferrier who, by a declaration in trust in writing, dated October 24, 1892, acknowledged that said bond and mortgage was assigned to him in trust for the Catskill National Bank to secure all notes, checks and demands due or to become due the bank from the Royal Food Company. At that time and ever since the Royal Food Company has owed said bank about $2,000 in notes which were partly due at the time of the distribution of this surplus.

An action in the Supreme Court was prosecuted by Herbert K. Hill on the lien filed by him wherein all the other lienors, the defendant, The Royal Food Company in this action, and Onderdonk were made parties defendants. None of these defendants appeared or answered, whereupon the plaintiff in such action, on proof of default and of filing Us pendens, obtained an order of reference whereby it was referred to a referee to compute the amount due the plaintiff on his lien, and, also, to take proof and report the other liens on said property, and determine the amounts thereof, and the time when the same were filed and whether any and all are due, and the order of precedence or priority thereof, and the names of the holders thereof, and determine the amount due to each.

Pursuant to this order of reference the referee therein reports that he duly qualified, and was attended upon by the plaintiff’s attorney, none of the defendants appearing, and proceeded to hear the evidence. The referee in his findings of .fact reports the names of the lienors, the services and materials for which the respective liens were filed, the amount due each lienor at the time of the hearing, also the amount of the Hardwick mortgage then being foreclosed, the pendency of the action against the food company for the recovery of $5,000 purchase money, also the existence of mortgage of $15,000 by the food company to Onderdonk which he reports as an apparent lien, but which the plaintiff in the action for purchase money seeks to set aside.

As conclusions of law he finds that the Hardwick mortgage is a first lien, and that each of the other lienors has a lien, the amount of which he determines, and directs judgment to be entered in accordance with the prayer of the complaint.

Upon this report judgment was entered directing the sale of the premises and the payment of the liens therein found due as follows: To Post & Brothers, §216.95 ; to Chas. Balkins, §629.85 ; to Herbert K. Hill, §398.13, and Harriet W. Johnson, §145.20 on the 13th day of July, 1892.

No sale of the property to which these liens attached was made on this judgment, but said premises were sold under a decree in foreclosure of the Hardwick mortgage, and a report of sale was filed therein on the 20th day of April, 1893, by which it appears that there was a surplus over and above the payment of that mortgage and costs of the sum of §804.85, to determine the right to which these proceedings were instituted.

The only question which seems to be in controversy on this appeal is, whether the proof before the referee in these proceedings authorized the allowance of the claims of any of the lienors, except that of Hill. It is insisted by the learned counsel for the appellant that as none of the defendants in the action brought by Hill for the foreclosure of his lien appeared or answered therein, there was no such adjudication of their respective claims as would authorize the referee upon these proceedings upon the mere presentment of the record in that case to allow them the amount of their liens out of this surplus.

Section II of chapter 342 of the Laws of 1885 makes it the duty of all persons seeking to foreclose a lien to make all other lienors, either senior or junior, parties defendant, and provides that “all persons, firms, corporations or associations, who have filed notice of liens under this act, shall, by answer in such action, set forth the same, and the court in which the action is brought may settle and determine the equities of all the parties thereto and decide as to the extent, justice and priority of the claims of all parties to the action, and upon every counterclaim or set-off alleged therein, to the extent of their respective jurisdictions.” Under this section the counsel for the appellant insists that the filing of an answer by lienors who are made defendants is a jurisdictional prerequisite to the adjudication of the validity and priority of the lien, and that without the interposition of an answer the court cannot determine the validity of the same, and that the referee, in the proceeding to determine the title to the surplus, erred in awarding any portion of it to those whose liens were o'nly established by the judgment in the action prosecuted by Hill to foreclose his lien.

Section 7 of chapter 342 of the Laws of 1885 provides that the liens authorized under that chapter may be enforced by a civil action in any court of record in the city or county where the property is situate.

Section. 8 of that chapter prescribes the form of action and provides that a certified copy of the notice of such lien shall be entitled ■to be read in evidence and shall be prima facie evidence of the existence and filing of the lien.

Section 6 of this chapter provides that where a claimant is made a party defendant in an action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant who is a claimant within the provisions of this act.

This action by Hill to foreclose his lien was prosecuted in a court of general jurisdiction, which had, by the service of the process and the pleadings and liens before it, acquired jurisdiction of the persons of all these parties and of the subject-matter of that action. (McAllister v. Case, 24 N. Y. St. Repr. 52.)

In that action, as we have seen, all the liens both of the plaintiff and defendants could be foreclosed. Onderdonk, whose interest is now represented by Ferrier, as trustee, who brings this appeal, was a party to that action upon the record. No appeal was taken from that judgment. The decree in the action by Hill assumes to dispose of the rights and equities of all the lienors who were parties thereto. But it is urged that if the general jurisdiction of the court be conceded, and that it acquired jurisdiction of the parties and subject-matter in this case, still it had no power of its own to adjudicate upon the rights of parties not submitting their right to it, and that as these defendants failed to answer, as required by section 17 of the statute (supra), its voluntary adjudication of their rights was inoperative and void.

It is not quite clear what purpose the answer under section 17 was intended to serve. That it was a proper step in the proceeding is quite apparent, but there is nothing in the statute which divests the court of jurisdiction which it has regularly acquired by the defendants’ failure to answer. Doubtless if tlie plaintiff had stated in his complaint the liens of the defendants improperly, that defect could have been corrected by answer; but as the defendants were before the court and had the opportunity to answer and failed to do so, and judgment went against them, or was entered in such a manner that their rights were prejudiced, the judgment, until set aside or reversed, would be conclusive upon them.

They could not attack it collaterally. Any of the parties to the Hill action might have answered contesting any of the liens as set out in the bill of complaint, and in that way litigated their correctness or validity. The power to determine conflicting rights or claims between defendants in an action is expressly provided for by section 521 of the Code of Civil Procedure. (Albany City Sav. Inst. v. Burdick, 87 N. Y. 40-46; Derham v. Lee, Id. 599-604.)

In courts of equity the relief administered is flexible, adapted to the exigencies of the case in hand, and it cannot be doubted that when they have control of the parties they can make a full determination. (Albany, etc., v. Burdick, supra.)

The appellant’s assignor being before the court in the action by Hill, it was his duty, if the claims of the defendants were not correctly stated in the complaint, to have raised that question (§ 521 Code Civ. Proc.), and as he was required to do by section 17 of chapter 342 of the Laws of 1885, and to have had that question settled in that action; failing to do that we do not see how he can attack the validity of the decree collaterally in these proceedings.

In The Matter of the Estate of Stilwell (139 N. Y. 341) the-court, in discussing the right to attack a judgment collaterally, uses this language : “ The validity or regularity of a provision in a judgment of foreclosure, not raised by a party to the suit by answer, appeal or motion, cannot be raised collaterally where the court rendering the judgment had general jurisdiction of the parties and the subject-matter of the action.” '

This judgment in the Hill case was an action of foreclosure, conducted in the ordinary manner of an action of foreclosure, and the rules applicable to judgments in foreclosure of mortgages ’seem to be applicable to judgments of this character.

We think, therefore, that the referee was right in holding that the rights of the lienors were fixed by the judgment in the action by Hill, and that his report was properly confirmed by the order of the Special Term.

The order of Special Term should be affirmed, with costs and printing disbursements.

Putnam and Herrick, JJ., concurred.

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


text:
    In the Matter of the Application of Elizabeth Winegard, Respondent, for a Writ of Certiorari to Charles Kromer and Others, Appellants.

      Chapter 269 of 1880 •— aertiora/ri directing the return of original papers — the custodian not a party to the proceedings — review of proceedings of assessors — waiver of objections to an assessment — amendment of a writ of certiorari, when proper.

    It is immaterial whether a writ of certiorari directed to assessors commands them to return the original assessment roll and papers, or copies thereof, inasmuch, as in either case, under section 8 of chapter 269 of the Laws of 1880, a return of copies of such papers would constitute a compliance with the provisions of such order; nor is it necessary to make the town clerk, in whose custody the original papers are, of which the writ commands the return, a party to the proceedings.
    Chapter 269 of the Laws of 1880, giving a remedy by certiorari to correct an illegal or excessive assessment, does not apply to a complaining party who has omitted to avail himself of the opportunity provided by statute to remedy his grievance on grievance day.
    Where a person appeared before the assessors of a town on ‘ ‘ grievance day ” and objected to an assessment made against her property, on the sole ground that she had no personal property subject to taxation, she cannot, upon a review of the assessment by certiorari, as authorized by chapter 269 of the Laws of 1880, raise questions which she did not attempt to present to the assessors.
    The proceedings before the assessors of a town on the day appointed for the hearing of grievances is a species of trial; the party complaining states his case and offers his evidence, and the assessors pass on the questions raised by his objections, and their decision the complaining party may review by certiorari.
    Complaints not made before assessors on grievance day are deemed to have been waived.

      A writ of certiorari issued under chapter 269 of the Laws of 1880 may be amended, and upon an appeal by the assessors from an order denying their motion to set aside and vacate a’writ of certiorari issued against them, the same should-be modified so as to direct the return by them only of those papers necessary to enable the court to review their decision on the questions raised before them on grievance day.
    Appeal by Charles Kromer and others from an order of the Supreme Court, made at the Schoharie Special Term and entered in the office of the clerk of the county of Schoharie on the 5th day of September, 1893, denying their motion to set aside and vacate a, writ of certiorari.

      W. G. La/mont, for the appellants.

      L B. Holmes, for the respondent.
   Putnam, J.:

This is an appeal from an order denying defendants’ motion to set aside a writ of certiorari granted in this proceeding. Petitioner, a resident of the town of Seward, N. Y., on the 16th day of August, 1892, appeared before the board of assessors of said town, and asked that an assessment against her of $5,000 on personal property be stricken from the assessment roll on the ground that she had no personal property liable to be assessed.

The learned counsel of the appellants suggests that the writ sought to be vacated was not authorized by section 3 of chapter 269 of the Laws of 1880, as it directed the return of the original assessment roll and papers which, prior to the making of the order for the issuance of said writ, had been filed with the town clerk of said town.

We are of opinion that this position is not well taken. It was immaterial whether the writ commanded the assessors to return the original assessment roll and papers or copies thereof, inasmuch as in either case, under section 3 of the act referred to, a return of copies of said papers would constitute a compliance with the pro visions of such order. Under the said section a direction of a court to the assessors to return the assessment roll and other papers should be deemed to mean the said assessment roll and papers or copies thereof. Hence, under the order or writ sought to be vacated, had the assessor’s returned copies of the papers mentioned in said order they would, under the statute, have obeyed the mandate of the court.

It is also claimed that the town clerk should have been made a party to the proceeding, as the original assessment roll and papers in question were, when the order was granted, in his possession. Inasmuch, however, as the assessors were only compelled to return copies of the papers in possession of the town clerk we are unable to see the necessity of making that officer a party to the proceeding.

That it is not necessary in such a case to make the town clerk a party has been decided in People ex rel. The West Shore R. R. Co. v. Pitman (9 N. Y. St. Repr. 472). We concur in the views stated in the opinion of Haight, J., in that case.

Appellants also contend that the writ improperly directed the assessors to make return as to matters not raised before them on grievance day,” viz.: It commanded them to return “ a statement of the value of the real estate assessed on said roll; the total assessed value thereof assessed on the roll; the total assessed value of the personal property assessed on the roll, and also to return whether or not the real or personal property, or either, appearing on said roll Were assessed at its full and true value at which it would be appraised in payment for a just debt due from a solvent debtor, or at a percentage of such value, and if at a percentage state the rate per cent that the real- and personal were assessed of their true value,” thus bringing up for review the question whether the assessment against petitioner was unequal, although such claim was not made by her before the assessors on “ grievance day,” the only claim then being made that she had no personal property subject to taxation. I

We are of opinion that the original order should have only directed a return by the assessors of papers and facts necessary to enable the court to review the decision of the assessors on questions raised before them at the time appointed for hearing parties claiming themselves aggrieved.

It has been held that chapter 269 of the Laws of 1880, giving a remedy by certiorari to correct an illegal or excessive assessment, does not apply to a complaining party who has omitted to avail himself of the opportunity provided by statute to remedy his grievance. (People ex rel. Mut. Union Tel. Co. v. Comrs. of Taxes, 99 N. Y. 251; People ex rel. W. S. R. R. Co. v. Adams et al., 125 id. 471-484; People ex rel. Corwin, v. The Assrs. of Middletown, 46 N. Y. St. Repr. 148.)

The relator in this case appeared before the town assessors on ■ “ grievance day ” and objected to the assessment on the sole ground that she had no personal property subject to assessment. She made no complaint-on the ground that the assessment was unequal or otherwise unauthorized. Can she now raise questions which she did not attempt to raise before the assessors? We think not. The certiorari authorized by chapter 269, Laws of 1880, provides a mode of reviewing the action of the assessors. It was intended to authorize the court to review the decision of the assessors, but, as the authorities above cited show, only such decisions as are made on grievance day.” Objections not raised before the assessors on that day cannot be deemed passed upon by them, and hence cannot be considered on certiorari. The proceeding before the assessors on the day appointed for hearing grievances may be deemed a species of trial. The party complaining states his case and offers his evidence, and the assessors pass on the questions raised by his objections, and that decision, whatever it is, the complaining party may review by certiorari. If one objecting to an assessment must appear before the assessors on the day appointed for him to state his grievances, it follows that he should then state all the objections he desires to make, and obtain the decision of the assessors thereon. If a party having several complaints to an assessment omits to state but one of them to the assessors he fails to obtain their decision as to the objections not stated, and cannot raise such objections for the first time on certiorari.

Complaints not made before the assessors on “ grievance day ” should be deemed waived. In Hilton v. Fonda (86 N. Y. 339) the assessors were sued for assessing certain real estate of the plaintiff, a non-resident, to him personally, instead of assessing it as nonresident real estate, and thus acting without jurisdiction. Plaintiff’s agent had appeared before the assessors and objected to the amount of the assessment, but not that it was illegally assessed to the plaintiff personally. It was held that the 'petitioner’s objection to the jurisdiction of the assessors was waived. So, here, we think, the objection that the tax was unequal, not having been taken by the petitioner before the assessors, must be deemed waived. The petition on which the order for the writ was granted showed that the only grievance stated by the petitioner to the assessors on “ grievance day ” was that she had no personal property liable to taxation.

It has been held that a writ of certiorari issued under chapter 269 of the Laws of 1880 may be amended. (People ex rel. N. Y. C. & H. R. R. R. Co. v. Cook, 62 Hun, 303; People ex rel. The Herkimer & Mohawk R. R. Co. v. The Assrs. of the Town of Herkimer, 6 N. Y. Civ. Proc. Rep. 297.)

.For the reasons stated, we think that the writ should not have directed the assessors to make in their return “ a statement of the value of the real estate assessed on said roll; the total assessed value thereof assessed on the roll; the total assessed value of the personal property assessed on the roll, and also to return whether or not the real or personal property, or either, appearing on said roll.were assessed at its full and true value at which it would be appraised in payment for a just debt due from a solvent debtor,’or at a percentage of such value, and if at a percentage state the rate per cent that the real and personal were assessed of their true value.” This clause was probably inadvertently inserted in the order.

The order from which the appeal is taken should be modified so as to direct the original order and writ to be modified by striking out the clause above quoted, and as so modified, affirmed, without costs to either party in this court or the court below.

Herrick, J., concurred; Mati-iam, P. J., not acting.

Order modified, and as modified affirmed, without costs to either party in this court or at Special Term.