author: Daniels, J.:

text:
    CHARLES E. O’CONNOR, as Receiver of the Property of HERBERT FOOTE BEECHER, Judgment-Debtor, in Supplementary Proceedings, Appellant and Respondent, v. THE MECHANICS’ BANK, Appellant and Respondent, Impleaded with HERBERT FOOTE BEECHER.

      Deposit in a bank, by the executors of an estate, of money belonging thereto —- cheeks given to the beneficiaries in clist/i'ibution thereof— a receiver of the property of one of the beneficiaries is entitled to recover from the bank the money, paid by it on the check to the beneficia/ry, after notice of the receivers rights.

    In proceedings supplementary to execution it appeared, by the testimony of the cashier of the Mechanics’ Bank, that money had been deposited in the bank to the credit of the estate of the father of the judgment-debtor by his executors, who, having concluded to make a distribution of such money among the parties entitled to receive it under the testator’s will, allotted to Herbert Foote Beecher, the judgment-debtor, and drew their checks, payable to his order for, the sum of $2,286.92, upon such bank on January 30, 1888. On February 3, 1888, a receiver was appointed of the property of the judgment-debtor, who duly qualified and made a demand upon the bank, in writing, for the payment to him of the money in the custody of the bank belonging to the judgment-debtor. Subsequently, and on March 10, 1888, the check drawn by the executors in favor of the judgment-debtor was paid by the bank.

      Held, that at the time when the check was paid the money represented thereby, so far as such money was required to pay the judgment and expenses, had become, in fact, the property of the receiver in his official capacity, and that he was entitled to judgment in an amount sufficient to pay the demand on which the supplementary proceedings had been instituted, together with interest thereon and the costs of the proceedings and the commissions and disbursements of the receiver. ,
    That while, as a general rule, the deposit of money with a banking institution has no other effect than to create the relation of debtor and creditor between the bank and the person or persons to whose credit the deposit is made, yet that such rule is not applicable to a case in which the money of an estate, and not of the person or persons making the deposit, is placed with the banking institution, as in the latter case the account is impressed with a trust in favor of the persons who may prove to be entitled to participate in its distribution.
    Appeal by tlie defendant, the Mechanics’ Bank, from a judgment rendered at the New York Circuit, on a trial before the court, and entered in the office of the clerk of the county of New York oh •the 7th day of November, 1888, in favor of the plaintiff and against the said Mechanics’ Bank, foy the sum of $1,433.42 and costs, and from each and every part of said judgment; and by the plaintiff, from that portion of the judgment giving plaintiff judgment for $1,300; the purpose of such appeal by the plaintiff being to obtain a review by the General Term of the question as to whether plaintiff was not entitled to judgment for the full amount demanded in the complaint, to wit, the sum of $2,286.92, with interest from February 9, 1888.
    The action was brought by a receiver, in proceedings supplementary to execution, to recover funds on deposit with the Mechanics’ Bank alleged to belong to the judgment-debtor.

      Edwm B. lemitt, for the plaintiff.

      W. O. Beecher, for the defendant.
   Daniels, J.:

The plaintiff was appointed receiver of the property of Herbert F. Beecher in supplementary proceedings taken upon the return of an execution unsatisfied, issued upon a judgment recovered against him. The proceedings were taken under subdivision 3 of section 2132 of the Code of Civil Procedure. In those proceedings the cashier of the defendant was examined as a witness, and from his testimony it was made to appear that moneys had been deposited in the bank to the credit of the estáte of Henry Ward Beecher. This had been done by his executor, and they concluded to make a distribution of such money among the persons entitled to receive it under the will of the testator, Henry Ward Beecher. In making this distribution they allotted to the judgment-debtor the sum of $2,286.92, and on the 30th of January, 1888, drew their check payable to his order, upon the defendant for that sum of money, and the check was paid by the defendant on the 10th of March, 1888. The order by which the plaintiff was appointed receiver was made on the 3d of February, 1888, and on the eighth of the same month his bond as receiver, approved by one of the justices of this court, was filed in the office of the clerk of the county of New York. On the same day a demand, was made upon the bank in writing for the delivery or payment to the receiver or his attorneys of any and all personal property of any kind, nature or description, money or funds belonging to Herbert Foote Beecher, and in the custody or under the control of the bank. This demand was further extended by an additional written demand served on the same day, stating the appointment of the plaintiff as receiver and demanding payment to him “of the sum of $2,000, amount of the funds of the estate of Henry 'Ward Beecher, deceased, now on deposit with you, belonging to the judgment-debtor, or due to him from you by virtue of a certain check drawn against said funds by Henry B. Beecher, as executor of said estate, within two or three weeks past, to said judgment-debtor’s order, and being sent to him, said judgment-debtor, by said executor, at Port Townsend, Washington Territory, being for the balance of his share in the distribution of personal effects of said estate.”

These demands were disregarded by the defendant and the money paid over upon the presentation of the check, and it was because of that payment, with these facts previously brought to the attention of the officers of the bank, that the action was brought by the receiver for the recovery of the money.

It has been objected that this appointment did not authorize the plaintiff to maintain this suit, for the reason that notice of the application for it was not given to the judgment-debtor, but from a recital in the order it is to be inferred that knowledge of the fact was brought to the attention of the judge, that the judgment-debtor was a resident of Washington Territory, and for that reason the notice required to be given could not be served upon him ; and that was sufficient, under section 2464 of the Code of Civil Procedure, to justify the judge in dispensing with that service.

It is no doubt true, as a general legal proposition, that the dej>osit of money with a banking institution creates no more than the relation of debtor and creditor between the bank and the person or persons to whose credit the deposit is made, but that principle does not control the rights of the parties to this action, for the moneys which were received by the executors and ' deposited at the bank were placed there as the property of this estate, and not of the person or persons making the deposit. It was upon the face of the account impressed with a trust in favor of the persons who should prove to be entitled to participate in its distribution. The judgment-debtor was one of these persons, and after a division of the money on deposit was made by the executors, and an apportionment of this part of the money was made in favor of the judgment-debtor, the check was drawn in his favor for its payment to him, and this allotment and division of the fund was sufficient to entitle him to this part of the money. It, in substance, became his property, and was thenceforth subjected to the rights of the plaintiff as receiver, by the proceedings which had been taken and the demand which was served, accompanied by the information contained in it, before either the check itself was paid or had appeared to pass into the hands of a Iona fide holder. That the money did become the property of the judgment-debtor by the division which the executors made is sustained by what was held by the court in Van Alen v. The American National Bank (52 N. Y., 1); Baker v. New York National, etc., Bank (100 id., 31); Viets v. National Bank of Troy (101 id., 563).

If the bank was not fully apprised of the grounds upon which the receiver claimed to be entitled to this money, it did have sufficient information to render it the duty of its officers to inquire into the circumstances and to ascertain from the executors the true situation of this part of the fund on deposit. And having been placed in that position in this manner, it could not disregard the duty created and pay over the money as it did, without incurring the risk of again making payment to the plaintiff as receiver. 'When the check was paid the money, so far as it was required to pay the judgment and expenses, had become, in fact, the property of the receiver in his official capacity, and as it was paid over in disregard of his rights, after such information had been received by the, officers of the defendant as would reasonably, if its indications had been properly followed, have fully informed them of the existence of this right, it was paid without authority, and to that extent the plaintiff was entitled to recover.

It was not, however, proved upon the trial what the precise amount was which would be necessary to pay the judgment on which the supplementary proceedings had been instituted, the interest upon the amount, the cost of the proceedings and the commissions and disbursements of the receiver, but the court directed a judgment for the sum of $1,300 until these various amounts could be fixed and determined. This was not authorized. What the plaintiff in liis official capacity was entitled to recover was so much money only as would pay the judgment, with interest upon it, the costs of the supplementary proceedings and the disbursements and commissions of the receiver, together with the costs of the action, and that should have been ascertained definitely and fixed by the judgment before it was allowed to be entered, and upon that execution could regularly be issued against the defendant for the collection of the amount. In this particular the judgment was defective, and it should be vacated and further proceedings directed, to ascertain and determine the amount required to pay and satisfy these various items. And when that amount shall have been ascertained, ¿itherby reference or otherwise, then the plaintiff will be entitled to a judgment for the recovery of that sum. These directions will dispose of the appeals of each of the parties, and neither should recover costs of either of the appeals.

Beady, J., concurred; Yan Brunt, P. J., concurred in reversal of judgment only.

Judgment vacated and further proceedings ordered as directed in opinion, without costs to either party.


source: Caselaw Access Project

author: Barrett, J. :

license: Public Domain

text:
    JACOB D. NORLINGER and Others, Respondents, v. JOAQUIN De MIER, Appellant, Impleaded with Others.

      Uncmthorized appearancefor non-resident special pan'tners, by direction of their general partner — set aside, instead of the special pan'tners being remitted to their action against the attorney for the damages.

    A summons Was served upon the general partner of a Arm in an action against all its members; the general partner sent the summons to an attorney, who appeared for all the defendants, although such general partner had no authority from either of his copartners, who were special partners in the firm, and who were not residents of the State, to authorize an appearance by the attorney on their behalf.
    On an application by the special partners to have such notice of appearance set aside:

      Held,, that the rule, which remitted a party under such circumstances to an action against the attorney who had appeared without authority from him, had no application to the case of defendants, who were non-residents of the State which licensed the attorney.

      That the court could not bring non-residents of the State within its jurisdiction by the unauthorized action of its own officers.
    That the special partners were entitled to have the notice of appearance canceled and set aside.
    Appeal by tbe defendant, Joaquin De Mier, from an order made at a New York Special Term on the 17th day of April, 1889, and entered in the office of the clerk of the county of New York on the dth day of May, 1889, denying a motion made by the said Joaquin De Mier to cancel the notice of appearance served by Messrs. Arnoux, Ritch & Woodford, as his attorneys in the above-entitled action.

      L. II. Arnold', Jr., for the appellant.

      I. W. Hinriohs, for the respondents.
   Barrett, J. :

The defendants were sued as general partners. The summons was served upon Parraga only. He sent the summons to Messrs. Arnoux, Ritch & Woodford, responsible attorneys of this court, who appeared for all the defendants. They so appeared, without authority from either De Mier or De Castro, but they acted in entire good faith, believing that Parraga was authorized to retain them for all the defendants. Parraga’s authority is now denied, and the defendants all insist that the partnership was special, that Parraga was the only general partner, while De Mier and De Castro were but special partners. It is quite clear on these papers that Parraga was not authorized to bring De Mier within our jurisdiction through the instrumentality of a legal appearance or otherwise. De Mier resided in Cuba and he knew nothing whatever of this suit. Indeed, it is doubtful whether Parraga intended to authorize these attorneys to appear for De Mier. He simply sent them the summons without explanation, directing them to defend. They did not know that the partnership was special, and they appeared for all the defendants upon the supposition that they were authorized to do so by one member of a general partnership acting for the firm.

De Mier now comes before this court, appearing specially for the motion, and claiming that his general partner had no authority to appear for him or to retain counsel on his behalf; that he never in any manner, authorized the appearance, and thus he finds himself apparently within our jurisdiction without the service of process or authorized appearance. The question is, whether in a direct proceeding lilce this the notice of appearance should be set aside. If the circumstances were reversed, there can be no doubt of the rule in this State. We would not recognize a claim of jurisdiction asserted over one of our citizens by the unauthorized appearance of a foreign attorney. Whatever question there may be with regard to an unauthorized appearance m owr own courts for a resident of this State, there is none with regard to such an appearance in the courts of other States.

In an action here upon a foreign judgment, the defendant may question the jurisdiction as matter of fact, may prove that he was not served with process within the foreign jurisdiction, and that he never authorized an attorney there to appear for him; and such proof will be fatal to the foreign judgment. (Kerr v. Kerr, 41 N. Y., 272; Hoffman v. Hoffman, 46 id., 30; Borden v. Fitch, 15 Johns., 121; Starbuck v. Murray, 5 Wend., 148.) The justice of a distinction in this respect between domestic judgments and judgments of sister states was questioned by Rapallo, J., in Ferguson v. Crawford (70 N. Y., 261). Referring to the full faith and credit provision of the Constitution, he observed that the judgments of our courts in the cases above cited could “ stand on no other logical basis ” than a ruling that such was the common law, and presumably, therefore, the law of the sister State. But without considering the present case from the standpoint of Denton v. Noyes (6 Johns., 296), and the many critical examinations of that case with which the books abound, we think that the same rule should be applied here, which we insist upon when the situation is reversed. Having adopted the rule laid down in Borden v. Fitch (15 Johns., 121), and having firmly adhered to it in numerous cases, we certainly cannot question its propriety when applied to ourselves. Clearly we had no jurisdiction over He Mier in personam, and we could acquire none without an authorized appearance or personal service of process within the State. The-old rule, which remitted a party to an action against the attorney, can have no application to non-residents of the State which licenses the attorney. The court cannot well draw non-residents within its jurisdiction through the unauthorized acts of its own officers.-

De Mier was, therefore, entitled to a cancellation of the notice of appearance, and to be left just where he was, without the jurisdiction, when the attorneys attempted to bring him in. The right to substitute other attorneys does not meet the case. We cannot say to the foreigner, you never voluntarily submitted yourself to our jurisdiction, but still it will be convenient to keep you here, and we will permit you to choose your legal agent. The incident of De Mier’s presence within the State for a short time since the commencement of the suit calls for no special comment. He was not served with process while here, and he knew no more about the suit then than he did when he was in Cuba. That the plaintiffs might have served him if they had not relied upon the appearance is a mere speculation. Such considerations can have no bearing on the broad question of jurisdiction.

The order should be reversed, with ten dollars costs and disbursements, and the motion to cancel the notice of appearance granted unconditionally, with ten dollars costs.

Yan Brunt, P. J., and Brady, J., concurred.

Order reversed, with ten dollars costs and disbursements, and the motion to cancel the notice of appearance granted unconditionally, with ten dollars costs.


author: Yan Brunt, P. J.: Barrett, J.: Daniels, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS MORAN, Appellant.

      Or and lan'ceny in the second degree — it must he shown that there was property in the pocket attempted to he piclced.

    Under an indictment charging tlio crime of grand larceny in the second degree, the evidence adduced onholialf of the prosecutionupon the trial showed that the accused attempted to pick tlio pocket of a lady in the city of New York, hut there was no evidence whatever from which it could he inferred that the lady in question had any property in her pocket.

      Held, that it was essential to a conviction that the prosecution should prove that there was property iu the pocket in question. (Daniels, J., dissenting.)

      That the provisions of sections 33 and 34 of chapter 508 of the Laws of 1860 are still in force, as they constitute sections 1446 and 1447 of chapter 410 of the Laws of 1882.
    Effect, upon the construction to be given to a general statute, of the existence of a local statute creating an offense which might be covered by the language of the general act, considered.
    Appeal by the defendant from a judgment entered, January 30, 1889, in the Court of General Sessions, held in and for the city and county of New York, convicting the defendant of the crime of attempting to commit the crime of grand larceny in the second degree.

      Abram Sv/ydmn, for the appellant.

      W. Trrners Jerome, for the respondent.
   Yan Brunt, P. J.:

The evidence in this case showed that the defendant attempted to pick the pocket of a lady in the city of New York. There was no evidence whatever from which it could be inferred that the lady in question had any property in her pocket; and the appellant contends that it was necessary to prove that there was property in the pocket in question in order to warrant a conviction on tills indictment, and this is the question brought up by this appeal.

In the consideration of this question it may be proper to refer to the history of the law in reference to crimes such as it is claimed the defendant committed.

By the Revised Statutes (pt. 4, chap. 1, tit. I, § 3), it is provided that every person who shall attempt to commit an offense prohibited by law and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same * * * shall * * * be punished,” etc.

It has been held in the State of Massachusetts, under a similar statute, that although it did not appear that there was any property to be stolen, yet,-as the attempt to steal constituted the crime, and that as an attempt is simply to make an effort to effect some object, to make a trial or experiment, therefore, the prisoner, by thrusting Ms hand into a pocket makes an attempt to pick a pocket, although he does not succeed, because there happens to be nothing in the pocket.

It, however, appears, from the legislation in this State, that such was not deemed to be the rule by our legislature, because by chapter 508 of the Laws of 1860, after having provided, by section 38, that picking pockets in the city and county of New York should be punished as grand larceny, although the value of the property taken should be less than twenty-five dollars, and that attempts under similar circumstances should be punished as for attempts to commit grand larceny, it provided, by section 34, that every person who shall lay hand upon the person of another, or upon' the clothing upon the person of another, * * * with intent to gteal as a pick-pocket, under such circumstances as shall not amount to an attempt to rob or an attempt to commit larceny, shall be deemed guilty of an assault with intent to steal, and shall be punished as is now provided by law for the punishment of misdemeanors. It shall not be necessary to allege or prove, in any prosecution for an offense under this section, any article intended to be stolen, or the value thereof, or the name of the person so assaulted.”

This legislation clearly shows that it was the opinion of the legislature that an attempt to pick a pocket that had nothing in it was not a crime which might be punished as an attempt to commit grand larceny, because, by the provisions of the previous section, an attempt to pick a pocket in the city of New York might be punished as for an attempt to commit grand larceny. Now, if it had not been supposed that unless there was some proof of property no crime would be made out, what could have been the possible reason for the adoption of section 34, particularly in view of the last clause which provides that for the establishment of the offense mentioned in that section it shall not be necessary for the prosecution to allege or prove any article intended to be stolen, or the value thereof, or the name of the person so assaulted? If an attempt was intended to be construed to mean simply the making of an effort to steal as a pick-pocket there could have been no possible necessity for providing for the crime mentioned in section 34, because the legislation of the previous section would then have covered the whole ground embraced within the provisions of said section 34. It seems to us, therefore, that the only interpretation that can be placed upon these sections is that unless the existence of property was proven no conviction of an attempt to commit the crime mentioned in section 33 could be maintained. This legislation contained in sections 34 and 33 was attacked upon the ground that it was unconstitutional in that the law was a local one and did not comply with the requirements of the Constitution; but it was maintained finally by the Court of Appeals, and it would appear that because of this attack the legislature passed, in 1862, chapter 374, in which it incorporated this same legislation making it embrace the whole State. . This was the condition of the law at the time of the adoption of the Penal Code. The codifiers, in the spirit of improvement which seems to have guided them in the codification of the law, entirely changed the language of the definition which had long prevailed under the Revised Statutes as to what should be deemed an attempt to commit a crime, and it cannot be said that they have added anything in lucidity, although perhaps their definition is more brief. Section 34 of the Penal Code provides that “ an act done with intent to commit a crime, and tending but failing to effect its commission, is. an attempt to commit that crime.”

"We do not see that the section in question is any broader than the statute, nor have we any reason to believe that the legislature intended that it should have any greater scope. We have been unable to find, however, any provision in the Penal Code which embraces section 34 of chapter 508 of the Laws of 1860, or section 3 of chapter 374 of the Laws of 1862. And under section 725, notwithstanding the adoption of the Penal Code, those acts necessarily remained in existence, as such section provides that all acts defining and providing for the punishment of offenses and not defined and made punishable by the Code should not be affected by the provisions in the Code, but were to be recognized as continuing in force notwithstanding the provision of the Code.

The next legislation affecting this subject is to be found in chapter 410 of the Laws of 1882, where, by sections 1446 and 1447, sections 33 and 34 of chapter 508 of the Laws of 1860 were re-enacted and made part and parcel of the act of 1882 ; another legislative interpretation of the previous enactments that it was still the opinion of the legislature that a person could not be convicted of an attempt to commit grand larceny by proof of an attempt to pick a pocket without proof of property. Therefore, as the law stood after the adoption of the consolidation act above mentioned, the proof in the case at bar was sufficient to convict the offender of the offense defined in section 34 of chapter 508 of the Laws of 1860, but was not sufficient to convict the offender of an attempt to commit grand larceny under section 33 of the Laws of 1860.

In its definitions of larceny the Code has embraced the picking of pockets, making, however, the offense greater where it is committed in the night-time than where it is committed in the day, but both being felonies. Therefore, under the interpretation which must necessarily follow the legislative interpretation of its previous acts upon this subject, and the interpretation given to those acts, even after the adoption of the Penal Code, we think it must be held that the evidence in this case did not authorize the conviction of the defendant of the crime of attempting to commit the crime of grand larceny in the second degree. But we are told by the learned counsel for the people that, if this construction is sound, a known thief may pass around in a crowd in full view of a detective officer, and place liis hand in the pockets of different people manifestly with the intention of picking pockets, because, by chapter 593 of the Laws of 1886, chapter 508 of the Laws of 1860, and chapter 314 of the Laws of 1862, have been repealed. The statement as to the repeal seems to be correct; and if we had to depend upon the laws of 1860 and 1862 for the punishment of this offense, it certainly would be impossible to do so because of the repeal of those statutes. But the provisions of sections 33, 34 of chapter 508 of the Laws of 1860 are still part of the law, because they are part of chapter 410 of the Laws of 1882, and they have not been repealed, and they apply to the city and county of New York in which this crime was committed, and in which county the punishment there fixed may be inflicted. So far as this county is concerned, therefore, no such dire results will arise as is claimed on the part of the learned district attorney, although the application of the law- to the other parts of the State seems to have been repealed by the wholesale repealing act above mentioned. This result, however, cannot affect the conclusion to which we must come; and if other legislation is necessary in order to place the criminal law in the position it was before the attempted codification, that is a question for the legislature to consider in the future. We are of the opinion, therefore, that the defendant was wrongfully convicted in the case at bar> and that the only conviction which the evidence justified was for the crime specified in section 1447 of chapter 410 of the Laws of 1882. And as the indictment is entirely defective upon this question, it would seem that the judgment must be reversed and the prisoner discharged.

Barrett, J.:

The question here is an interesting one. The logic of it is, in my judgment, with the view taken by the presiding justice. Independent of the statutes which he has considered, I find myself unable to resist the reasoning of the English judges in Regina v. McPherson (Dears. & Bell C. C., 197) and Regina v. Collins (Leigh & C., 471). There are two cases in this country- in conflict with these English decisions, namely, Commonwealth v. McDonald (5 Cush., 365) and The People v. Jones (46 Mich., 441). All the other cases cited by Mr. Jerome in his admirable brief (Rogers v. Commonwealth, 5 S. & R. 462; Josslyn v. Commonwealth, 6 Metc., 236; State v. Wilson, 30 Conn., 500; Kunkle v. State, 32 Ind., 220; Hamilton v. State, 36 Ind., 280; State v. Beal, 37 Ohio St., 108) referred to acts done with a particular intent, e. g., assault with intent to steal, breaking and entering with intent to steal, assault with intent to Mil, assault with intent to rob, and so on.

The Massachusetts and Michigan cases fail to distinguish between an act done with a particular intent and an attempt to commit a specific offense. In each case the corpus delicti differs. The placing of one’s hand in another’s pocket with intent to steal is one thing, the attempt to commit larceny in the second degree is quite another thing. The criminal intent is but one element in an attempt. There must also be an act tending to effect the commission of the defined crime. If the act merely tends to show guilty purpose, but does not tend to effect the commission of the particular crime, there is no attempt, in a legal sense. We must not go astray by following dictionary definitions of the word attempt, rather than legal. Larceny consists of the felonious taking of specific property. An attempt, therefore, to commit larceny necessarily contemplates an act tending to effect the felonious talcing, of specific properly. There can be no such act without the subject. If that is wanting, the act can show nothing more than guilty purpose.

The Massachusetts ease rests upon the popular meaning of the word attempt,” and holds that a man attempts to commit a legally defined crime when he thinks he can, and acts'upon the thought, though, in fact, no such legally defined crime as he contemplates is possible. The Michigan case proceeds upon a view of what the law should be, rather than what it is. This is the language of the court: “We fully concur in the views expressed by the Massachusetts court in Commonwealth v. McDonald (5 Cush., 365). We think this is not only the better, but the only rule of law that could be adopted or recognized with safety to the rights of the public or individuals.”

The logic of Chief Justice Cockburn, in the two English cases, seems to me to be quite unanswerable. In Regina v. McPherson, he says: “ The word attempt ’ clearly conveys with it the idea that if the attempt had succeeded the offense changed would have been committed * * * but attempting to commit a felony is clearly distinguishable from intending to commit it. An attempt must be to do that which, if successful, would amount to the felony charged.” And in Regina v. Collins (10 Law Times [N. S.], 582), he says: “ But, assuming that there was nothing in the pocket of the woman, the charge of attempting to commit larceny cannot be sustained. This case, we think, is governed by that of Regina v. McPherson, and that an attempt to commit a felony ca*n only be made out when if no interruption had taken place, the attempt could have been carried out successfully, and the felony eomjdeted, of the attempt to commit which the party is charged. In this case, if there was nothing in the pocket of the prosecutrix, in our opinion flie attempt to commit larceny cannot be established.”

Nor is there any real conflict between these two cases and the earlier case of Regina v. Goodall (2 Cox’s C. C., 41.) There was no question in the latter case of an attempt. The conviction was for the offense of using an instrument upon a woman with intent to procure a miscarriage. The statutory crime consisted imply of the act done with the guilty intent. The prisoner there could not have been properly convicted of an attempt to commit a criminal abortion, for the reason that the subject of abortion was not present.*

The distinction seems clear, and I am surprised at Mr. Bishop’s difficulty in reconciling the cases. (1 Grim. Law [7th ed.], § 741.) Mr. Jerome’s illustrations are apt and plausible, but hardly convincing. I agree that if we throw a stone at a piece of plate glass and fail to break it because the glass is too strong, there is an attempt to break plate glass. The act tended to break it and failed. If, however, the stone were thrown at what appeared to be plate glass, but was not, the wrong-doer might be guilty of throwing with intent to break plate glass, but, no matter what was in his mind, he could not be guilty of an attempt to break anything save the shining object which he mistook for glass. So, as to the scare-crow illustration, a man does not, in a legal sense, attempt to commit murder when, passing through a field in the dusk, he shoots at a dummy believing it to be his enemy. He shoots with intent to kill his enemy, but that is not the crime of an attempt to commit murder. The statutes considered by the presiding justice plainly recognize this as the legislative view of attempts, and the act making the laying on of hands, with intent to steal, an assault and a misdemeanor must have been intended as a provision for conduct which otherwise would not be punishable at all, either as an assault or as an attempt to commit larceny.

If the Massachusetts and Michigan view of attempts should prevail, I fail to see how any case can ever be brought within this “ assault’with intent to steal ” act. Bor if that act is only applicable “ under such circumstances as shall not amount to an attempt to commit larceny,” and if every laying of hands upon the person or clothing with the ungratified expectation of finding and taking property is larceny, then, how can there ever be an assault with intent to steal % I think the presiding justice’s view of these statutes is in harmony with their purpose and intent, and that the acts themselves flow from the legislative construction of what, in law, constitutes an attempt to commit a defined crime. I, therefore, concur in the reversal.

Daniels, J.

(dissenting):

The indictment charged the defendant with attempting to commit the crime of grand larceny in the second degree. It was alleged that he attempted to steal the property of a woman, whose name was to the grand jury unknown, from her person, and to prove the offense charged in the indictment a police officer testified that at the Washington market he saw the defendant and two other persons ; that he had seen them before and 'followed them, and saw that .the defendant went up against a lady and shoved his hand in her side pocket. He watched to see if he got anything, but he did not, and after that the arrest was made. Upon this evidence, which was not changed by the cross-examination, the defendant’s counsel requested the court to direct the jury to acquit him on the ground that the facts proved did not support the charge in the indictment. That was denied and the defendant’s counsel excepted, as he also did to the portion of the charge in which the jury were left at liberty to find, from the evidence, the facts alleged in the indictment, so far as they were important to make out this offense. By subdivision 2 of section 531 of the Penal Code, it has been made grand larceny in the second degree, to steal any property of another of any value, by taking the same from the person. And by section 31 of the same Code it has been further declared that an act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.” And by the next succeeding section it has been provided that the accused may be convicted of an attempt to commit the crime where he has been charged in the indictment with the commission of the crime itself. It has not been rendered necessary by the section defining the offense of an attempt to commit a crime, that it shall be made to appear that the person making the attempt had the ability to consummate the offense itself. Neither was it by the preceding law. (3 R. S. [6th ed.], 988, § 3). That' made it an offense for any person in the attempt to commit an offense, to do any act towards its commission, where he failed in the perpetration thereof, or was prevented or intercepted in executing the attempt. While the language of the preceding statute has been changed and very much abridged, the section of the Penal Code relating to the same subject'has not materially changed its effect. It is still an offense for the accused to appear to have done any act with intent to commit a crime and tending to have that effect. And the failure of the act' to result in the commission of the crime is not allowed to exonerate the person from liability to punishment. The enactment has not been qualified by tlie failure depending upon any contingency whatever. If the accused appears to have performed an act tending to commit a crime, with the intent to commit it, the offense is made out under this section of the Code. In this instance the defendant intended, as the jury was at liberty to find from what the officer stated he had done, to steal the property of the person referred to in the indictment, by taking the same from her person, and he attempted to accomplish that object by putting his hand in her pocket. That was an act tending to commit the crime, and it evinced the existence of the intention on his part mentioned in the statute, and his failure to succeed by reason of the fact that the woman may have had nothing in her pocket, did not relieve him from this criminal liability. The law has not made the offense dependent upon the fact that the person whose pocket may in that manner have been searched, had or had not property or any valuable thing in it, but it has made the offense to consist wholly upon the fact that, the accused has done some act having a tendency to commit the crime, when that act has been prompted with the intention that it should be committed.

The legislation in this State, providing for increasing the punishment for the crime of larceny from the person, seems to have originated in chapter 508 of the Laws of 1860. This act related to the city of New York, and by section 33 it contained the substantial features of the present legislation defining the crime, and the attempt to commit it, of larceny from the person, for it made it the crime of grand larceny for the defendant to steal from the person of ahotlier, although the value of the property should be less than twenty-five dollars, and then it generally declared that attempts, so to steal, might be punished as for attempts to commit grand larceny. It was further provided by the next section of the act that every person who should lay his hand upon the person of another, or upon the clothing upon that person, in the city or county of New York, with intent to steal as a pickpocket, under such circumstances as should not amount to an attempt to rob, or an attempt to commit larceny, should be deemed guilty of an assault with intent to steal, and punished as provided by law for the punishment of misdemeanors, and in that class of cases it should not be necessary to allege or prove any article intended to be stolen, or the value thereof, or the name of the person so assaulted. These sections were re-enacted and made generally applicable to the State at large by chapter 374 of the Laws of 1862, and the provisions of the section last referred to remained in force until that, as well as the preceding act, were repealed by sections 35 and 37 of chapter 593 of the Laws of 1886. But, prior to this repeal, the same sections had been made a part of chapter 410 of the Laws of 1882. This chapter was enacted for the consolidation of the laws relating to the city of New York, and section 1447 is the same as section 34 of chapter 508 of the Laws of 1860, and section 3 of chapter 374 of the Laws of 1862, and this enactment, contained in the act of 1882, has not been affected by the repealing act of 1886, but it still continues in force, applicable only, however, to offenses within its provisions committed in the city of New York.

But this section is not entitled to any effect in the way of limiting or abridging the language employed in framing section 34 of the Penal Code. That section is applicable to the State at large, including offenses within its description committed in the city of New York as well as elsewhere. It is to be construed according to the reasonable and fair effect of its language, and that construction must be the same in all portions of the State. It cannot he allowed and could not have been intended to have a broader or more enlarged significance in one part of the State than in another; and whatever facts would constitute a crime in other portions of the State under this section will he equally potent in that respect in the city of New York. It is a law of general application to be construed and applied in all localities to which it is applicable with the same'force and effect. Section 1447 of chapter 410 of the Laws of 1882 is entitled to no effect whatever in the way of restricting the application of this section of the Penal Code, for it appears by its terms that it was not intended to include the case of an attempt to commit this crime. It is, as it was in the acts of 1860 and 1862, declaratory of the facts constituting a still different, though inferior, offense from that of an attempt to commit the crime, and what it has done is to make the act a misdemeanor to lay a hand upon another person, or upon the clothing of another person, with the intent to steal as a pickpocket, under such circumstances as will not amount to an attempt to rob or to commit larceny. This section contains no language preventing the full and appropriate effect to be given to that contained in section of the Penal Code. It is a distinct and independent provision not designed to qualify the offense of an attempt to steal from the person, but leaving the act relied upon as an attempt to be determined by the language of the section and the construction which manifestly should be placed upon it. And while this section of the consolidation act has declared that it shall not be necessary to allege or prove any article intended to be stolen or the value thereof, it has nowhere, by language or implication, provided that it shall be necessary to allege or prove either of those facts to make out the offense of an attempt to commit the crime of larceny from the person, but it leaves the language otherwise employed in the law to be construed by itself, and to be carried into effect according to the import it shall appear entitled to have; and that, by no construction, has required it to be alleged or proved that the act of the defendant, in attempting to pick the pocket of another, has not failed of its success by reason of the fact that the pocket contained no article of value which could be taken from it.

In People v. Bernardo (1 N. Y. Crim. R., 245) it was held by the learned recorder of the city that the act of attempting to pick a pocket containing nothing which could be stolen was within this section of the Laws of 1862. But the decision in that case has .given a more extended .effect to the section of the act under which it was decided than was warranted by its language, for, as already observed, it did not include an attempt to commit the crime, but all that this section has included is the specific act of laying a hand upon the person or clothing of another with intent to steal. That was not the act alleged to be criminal either in that or the present case. "What the defendant has been convicted of is not placing his hand upon the person or clothing of the individual mentioned in the indictment, but of the act of inserting his hand in her pocket with the intent to steal, which is an entirely different act from that made a misdemeanor by this section of the act of 1862, and the section still in force in the act of 1882.

In the case of Regina v. Collins (10 Law Times [N. S.], 581), also, it was held that inserting the hand into the pocket of another which contained nothing capable of being stolen was not an attempt to commit the crime of larceny from the person; and a similar view prevailed in Regina v. McPherson (26 Law Jour. [N. S.] M. C. 134). But these decisions appear to be in marked conflict with the principles applied for the determination of the case of Regina v. Goodall (2 Cox’s C. C., 40), and they have been subjected to the same criticism in 1 Bishop’s Criminal Law (7th. ed.), 741. Beyond that the rule upon which they proceeded has not been considered sound or one which should be followed by the courts in this country.

In People v. Bush (4 Hill, 133) the conviction of the defendant was sustained under an indictment charging him with an attempt to commit the crime, when it was shown that he had solicited another to perform the criminal act, and notwithstanding the fact that this other person never intended to commit the crime. The failure there was as significant as that which followed in this case from the absence from the pocket of money or property which could be stolen by the defendant; and this was followed in Rogers v. Commonwealth (5 Serg. & R.., 463). It was there said, in the course of the opinion, that “ the intention of the person was to pick the pocket of Earle of whatever he found in it, and although there might be nothing in the pocket the intention to steal is the same.” In Josslyn v. Commonwealth (6 Metc., 236), under provisions similar to those contained in the Revised Statutes in this State, it was held that a general intent to steal would complete the offense, and that the rule would be the same if there were no goods in the building broken and entered with that intent. ' A still more direct application of the law is contained in Commonwealth v. McDonald (5 Cush., 365), where it was held by the court that an attempt feloniously to steal from the person of another was not dependent, for the completion of the crime, upon evidence that the person assailed had property at the time in his pocket. And this construction of the law has also been followed in State v. Wilson (30 Conn., 500); Kunkle v. State (32 Ind., 220); Hamilton v. State (36 Id., 280); People v. Jones (46 Mich., 441); State v. Real (37 Ohio, 108). And so it was also in Commonwealth v. Jacobs (9 Allen, 274). What was there said by the court in making the decision is especially applicable to this case, and that is that “whenever the law makés one step toward the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, a person taking that step with that intent or purpose,'and hi mself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some fact unknown to Jiim at the time of his criminal attempt, it could not be fully carried into effect in the particular instance!”

In this state of the law with the evidence, which was produced before the jury, they were authorized to reach the conclusion declared by their verdict, and the judgment from which the anneal has been taken should be affirmed.

Judgment reversed and prisoner discharged.


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    THE MANHATTAN RAILWAY COMPANY, Plaintiff, v. JOHN M. CORNELL, Defendant.

      Bond of indemnity against liability for accidents, given by a contractor to a railroad company — it does not cover the case of an injury caused by the negligence of the company.

      A contractor, for the construction of a station platform on an elevated railway, agreed “to assume all liability for, and to indemnify the company against, all loss, costs or damage, * * * arising from injuries sustained by mechanics, laborers or other persons by reason of accidents or otherwise.”
    A laborer, while in the employment of the contractor, was struck by one of the engines of the railway company and was so injured that he died. To recover the damages arising from the alleged negligence of the railway company, an action was brought, resulting in the payment by the railway company of $1,000 damages:

      Held, that the agreement did not cover this case.
    That while the language of the contract was very general, it could not properly be construed to impose upon the contractor the obligation to protect the plaintiff against the negligence of persons in its own employment.
    Case submitted, upon an agreed statement of facts, under the provisions of section 1279 of the Code of Civil Procedure.

      Samiuel II. Benton, for the plaintiff.

      Tallmadge W. Foster, for the defendant.
   Daniels, J.:

The plaintiff entered into a contract with J. B. & J. M. Cornell for the extension of its station platform on its Sixth avenue line at Fifty-eighth street, in the city of New York. The contract contains the agreement that:

2. The contractor to assume all liability for, and to indemnify the company against all loss, cost or damage, for or by reason of any hens, claims or demands for materials or from laborers, mechanics and others, and from any damages arising from injuries sustained by mechanics, laborers or other persons, by reason of accidents or otherwise, and from- damages sustained by depositing materials to the injury of the city or any person, including costs and expenses of defense, providing that they be duly notified of the bringing of such suits in such eases, and be permited to defend the same by their own counsel if they should so elect.

While the work was in progress, John Sullivan, who was a laborer in the employment of the contractors’ firm, was struck by one of the plaintiff’s engines and so injured that- he died on the 6th of March, 1886. His widow, as administratrix, brought an action against the plaintiff to recover damages for the killing of her husband, alleging that to have been caused by the negligence of the plaintiff. This action was not brought to trial, but it was settled for the sum of $1,000, and, by the stipulation providing for the settlement, the contractors agreed that the settlement should be without prejudice to the company’s right to claim indemnity for the amount paid, from them.

There is, however, no reasonable ground for sustaining the position taken by the plaintiff that the defendant, who is the smwiving member of the contractors’ firm, should reimburse to it the moneys paid for bringing about this adjustment, for the accident by which Sullivan lost his life was the negligence of the plaintiff itself, and not of any person in the employment of the contractors. For, while the language of this part of the contract is very general, it cannot reasonably be so construed as to impose upon the contractors the obligation to protect the plaintiff against the carelessness or negligence of persons in its own employment. What the parties designed and intended by this part of the agreement was to indemnify the plaintiff against liability for any damages or injuries that might be sustained by persons in the employment of the contractors in the progress and execution of their work. As to those injuries, they took the responsibility of loss upon themselves, and that they very well could be expected to do, inasmuch as they would proceed, if they occurred, from the acts of the contractors themselves, or persons in their employment. They had nothing whatever to do with the operation of the plaintiffs railway. The persons engaged in that pursuit were employed by the plaintiff itself. There was no relation whatever existing between them and the contractors, and it is not reasonable to suppose that in the use of .this language, either the plaintiff or the contractors intended or understood the latter to be obligated to indemnify the plaintiff against the carelessness or misconduct of its own servants or employees.

The plaintiff has no legal claim against the defendant for indemnity arising out of these facts, and judgment to that effect should be directed in favor of the defendant, together with the costs of this proceeding.

Van Brunt, P. J. and Brady, J., concurred.

Judgment in favor of the defendant, as directed in the ojúnion, together with costs.


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    PETER WILKENS, Appellant, v. THE MUTUAL RESERVE FUND LIFE ASSOCIATION, Respondent.

      Certificate of life inswamce — answers of insured, improperly written down in the application ly the agent of the company — when proof of that fact is not proper.

    In an action upon a certificate of life insurance a defense was interposed by tbe insurance company, alleging that false representations had been made by the assured in answer to certain questions put to him on his application for the certificate. The insurance certificate provided that the answers and statements in the application therefor should constitute warranties, whether written by the hand of the assured or not, that they were full, complete and true; and, further, that “ each of the statements made therein, whether written by his own hand or not, every person accepting or acquiring any interest in this contract hereby adopts as his own, admits to be material and warrants to be full and true, and to be the only statements upon which this contract was made.”
    Upon the trial of the action proof was offered to the effect that the assured, at the time when he made his application for the insurance, stated to the agent of tlie company the facts inquired of differently from the manner in which the answers were set forth in such application.

      Held, that, under the provisions of the certificate of insurance, by which the assured accepted and adopted as his own, and admitted the truth of, the statements contained in the application, whether written by his'own hand or not, he was not entitled to be relieved from the consequences thereof by proof that the agent had improperly, as well as untruthfully, filled out the application.

      Chase v. Hamilton Insurance Company (20 N. Y., 52) followed; Hlynn v. The Hquitable, eta., Insurance Company (78 id., 568); Qratta/n v. Metropolitan Life Insurance Company (80 id., 281); Bennett v. Agricultural Inswramce Company (106 id., 243); Moore v. Phoenix Mut. Life Insurance Company (107 id., 292) distinguishd.
    Appeal by tbe plaintiff from a judgment recovered at tbe New Y ork Circuit on tbe dismissal of tbe plaintiffs complaint, entered in tbe office of tbe clerk of tlie county of New York January 23,1888.

      William G. Wilson, for tbe appellant.

      Alfred Taylor, for tbe respondent.
   Daniels, J.:

Tbe plaintiff brought this action as assignee of a certificate of life insurance issued by tbe. defendant upon tbe fife of Daniel S. Sanford. By the terms of tbe certificate there became payable to him, from tbe death fund of the association, tbe sum of $10,000 from and after tbe period of bis decease. This certificate was assigned to tbe plaintiff and another person, tbe latter having also added a further assignment, including bis own interest. Tbe assured died on or about tbe 7th of February, 1886, and tbe ordinary notice and proofs of the fact were supplied to tbe defendant. Tbe association resisted tbe right of tbe plaintiff to payment of tbe amount mentioned in tbe certificate on tbe ground that false representations bad been made by tbe assured in tbe application for tbe certificate, rendering tbe certificate itself invalid and inoperative. These representations consisted in tbe answer of -the assured, to tbe question requiring a statement of bis occupation, that be was a carpenter. And to an answer to a further question whether be bad consulted any physician regarding his health within tbe preceding five years, and if • so, what physician, and when and for what disease. To this he answered no. The further inquiry was made whether he ever had any illness or injury not enumerated in preceding questions or bad been an inmate of any hospital. And to that he answered in the negative. By the proof the fact was established that he had at one time served as coot or steward upon sailing vessels, and within five years preceding the date of the application he did consult a physician regarding his health and for disease, and that the answer made to the inquiry concerning that subject was untruthful. It was also proved that from October 3,1882, to the twenty-fifth of the same month he had been an inmate of a hospital; and, also, that he was an inmate of a hospital within three years prior to the time of his application for the certificate, and that his answer that he had not been was untruthful. And these answers, under the authorities, were held at the tidal to avoid the certificate.

This resulted from statements in the application signed by the assured that “ I do hereby warrant that my answers as written to the above questions are full, complete, correct and true, and the same shall be made a part of the contract of my certificate of membership in the Mutual Reserve Fund Life Association.”

And “ it is hereby warranted by the applicant that the answers and statements in this application, whether written by his own hand or not, are full, complete and true, and it is agreed that this warranty shall form the basis and shall be a part of the contract between the undersigned and the Mutual Reserve Fund Life Association, and are offered to said association as a consideration of the contract applied for, and the applicant further agrees that if any statements, representations or answers made herein are not true, full and complete, then the certificate to be issued hereon shall be null and void, and all money paid thereon shall be forfeited to said association.”

And, from a further provision in the insurance, that “ in consideration of the application for this certificate of membership, which is hereby referred to and made a pai’t of this contract, and of each of the statements made therein, which, whether written by his own hand or not, every person accepting or acquiring any interest in this contract hereby adopts as his own, admits to be material and warrants to be full and true, and to be the only statements upon which this contract is made.”

By these stipulations and provisions the assured warranted the truth of the representations which had been made by him. And as they turned out to have been untruthful as to the fact of his con-suiting a physician, and having on two occasions been an inmate of a hospital, that relieved the defendant from liability for the payment of the money mentioned in the certificate. It was, however, proposed to be proved that the assured, at the time when he made the application for the insurance, informed the agent of the defendant as to the facts being otherwise. This offer of proof was rejected by the court. And the cases of Flynn v. Equitable, etc., Insurance Company (78 N. Y., 568); Grattan v. Metropolitan Life Insurance Company (80 id., 281); Bennett v. Agricultural Insurance Company (106 id., 243) and Moore v. Phœnix Mut. Life Insurance Company (107 id., 292), have been relied upon as authorities establishing the incorrectness of this ruling. But they are not entitled to that effect in this case, for the reason that the assured, by the application, took upon himself the entire risk of the truth of the representations made by him, and on the correctness of which the certificate was made to depend. In neither of the cases which have been referred to were these provisions contained. And that distinguishes those authorities from this action. For, in this instance, the assured assumed the responsibility for the correctness of the acts of the agent in filling out and completing the application, and thereby conclusively bound himself for the truth of the statements which had been made. The effect of his agreement to accept for himself and become bound by the acts of the agent in filling out the application as those of his own agent, was considered in Chase v. Hamilton Insurance Company (20 N. Y., 52), and, also, in Alexander v. Germania Fire Insurance Company (66 id., 464); New York Life Insurance Company v. Fletcher (117 U. S., 519). And these authorities all agree, where the assured in this manner accepts and binds himself for the truth of the statements contained in the application, that he cannot be relieved from that result by proof of the fact afterwards made that the agent improperly, as' well as untruthfully, filled out the application. Where, on the contrary, he expressly assumes the acts of the agent as his own acts, and binds himself for the truth of the statement made there, neither, he nor his representatives can be relieved from the effect by proof that the agent had acted faithlessly. This results from the voluntary agreement of the insured himself, over which a court of justice has no authority by way of relief. That the application and policy, or certificate, may be subjected by the statements contained in them to this disability, will no doubt seriously impair the value of life insurance policies. And as the court is not authorized to relieve the party from the agreement voluntarily entered into by him in this way, the fact itself can be no further useful than to enjoin upon persons taking policies of life insurance greater care and circumspection to discover whether anything may be contained in the application or the policy, which, in the end, will render it a fruitless source of reliance. There is a probability that this agent, in reducing the answers of the assured to writing, was faithful to the obligations of his employment, for he stated in his evidence, and that was not contradicted, that he filled out the blank from information obtained from Mr. Sanford, and that it was all in conformity with what he had stated to the agent.

The plaintiff, upon the trial, proposed to give evidence, from which the position has been taken that the company had placed itself in a condition in which it could not take advantage of 'the untruthful nature of these answers. For this purpose it was proposed to prove, before the assignment was taken of the certificate, that the parties repaired to the office of an agent' of the company and there consulted him as to the regularity and validity of the policy, and that he substantially represented the policy to be a valid security. This evidence was rejected upon the. trial upon the ground that the agent, even though he might have been a director in the company, had no authority to change the certificate, or to prevent the company from taking advantage of these untruthful answers. It was not proposed to be shewn that any information of the fact of the answers being untruthful had been brought to the attention of the defendant or either of its officers, or to the attention of this agent. And, without information to that effect, the agent would naturally assume that the certificate had been obtained by truthful representations made on behalf of the assured. And in that state of the case there could be no reason for assuming or supposing that it .was intended to surrender or waive any advantage that the company might be entitled to claim from the fact being otherwise. The assurance that the certificate was a safe investment, or might be relied upon as having been legally or correctly issued would, in tliis state of the facts, include no more than that the conduct of the company had been such as to bind it, so far as its own proceedings went, legally and effectually, for the payment of this money. It would not surrender or prejudice its right to avail itself of the objection that there had been such misconduct on the part of the assured himself which, at the time, was unknown to the company or its agent, as rendered the'certificate invalid and relieved the company from this obligation. As much as this was, in fact, provided for in the certificate itself declaring that “no agent of the association has authority to make, alter or discharge contracts, waive forfeitures, extend credit or grant permits, and no alteration of the terms of this contract shall be valid, and no forfeiture thereunder shall be waived, unless such alteration or waiver shall be in writing and signed by the president and one other officer of the association.” And of the extent to which the plaintiff, as assignee, is chargeable with notice.

And that precluded the agent, even though he might have been a director of the company (Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y., 261), from the exercise of such authority over this certificate as would exclude the right of the company to make the defense which proved successful upon the trial. For it was there provided that no forfeiture should be waived unless the waiver was in writing, signed by the president and one other officer of the association. Itwas not proposed to be proved that any waiver of this description had taken place, and without it the evidence which was rejected would, have been entirely useless. As the case was made to appear the plaintiff was not entitled to recover, and the judgment should be affirmed.

Brady, J., concurred.

Judgment affirmed.


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    NATHAN S. STARR, Respondent, v. SARAH M. STARR, Appellant, Impleaded with Others.

      Will giving the income of one-third of the testator’s estate to his widow — when it is riot subject to taxes — when it is in lieu of dower.

    A testator, by the fourth clause of his will, gave to his wife the use and income of one-third part of certain real property in the city of New York during her natural life. By the sixth clause thereof he directed his executors to lease that portion of the real estate not theretofore bequeathed, being two-thirds of the property mentioned in the fourth clause of the will, “ from time to time to collect the. rents and income thereof, to pay all taxes, expenses and repairs, and all other charges thereon, and to divide the residue of the income thereof, and pay the same in equal proportions to my five children (naming them) during their natural lives, and after their death I do devise and bequeath the same to their heirs in fee forever.”

      Held, that the widow was entitled to one-tliird of the gross rents or profits of this property.
    That the executors were required, out of the rents and income of the other two-thirds of the lands, to pay the taxes and repairs, and all other charges on the whole land and to divide the residue of the income thereof among the children. It appeared that the only real estate owned by the testator was the property mentioned in the foregoing items of his will.

      Held, that it was to be inferred, from the directions contained in the will, that the testator intended that the provisions therein made in favor of his widow should be accepted in lieu of her dower interest in his estate.
    Appeals by the defendant, Sarah hi. Starr, from an interlocutory order or decree of September 26, 1881, entered in the office of the clerk of the county of New York, and from a final judgment of June 13, 1888, also entered in said clerk’s office, in an action for the partition and sale of certain real estate.

      Albert Mathews, for the appellant.

      Theodore II. Silkmam, and Frederielc H. Ma/rm, for the respondent.
   Daniels, J.:

The plaintiff’s right to maintain the action for the partition and sale of the two parcels of real estate described in the judgment has not been questioned. Rut, as a part of the judgment which has been recovered the defendant has been declared to be liable for moneys received by her as a tenant for life, which she has been required, in part, to refund to tlie plaintiff, and, in part, to other defendants in the action. These moneys for which she has been held liable represent taxes and other charges upon one-third of the two parcels of real estate. They were owned by her husband at the time of his decease. He left a will, including in the fourth and sixth paragraphs a disposition of these parcels of land. By these paragraphs it was declared:

“Fourth. I give and bequeath to my wife, Sarah Maria, the use and income of one-third part of my house and lot of land, situate and lying in the city of New York, and known as number seven Great Jones street; also one-third of the use and income of my store and lot of land in the city of New York, and known as number five Barclay street, during her natural life.
Sixth. I authorize and direct my said executors, or such of them as shall take upon themselves the execution of this will, the survivor or survivors of them, to lease or rent that portion of my real estate not heretofore devised, being two-thirds of my house and lot of land known as number seven Great Jones street; also my store and lot of land known as number five Barclay street, from time to time to collect the rents and income thereof, to pay all taxes, expenses and repairs, and all other charges thereon, and to divide the residue of the income thereof, and pay the same in equal portions to my five children,' Nathan S. Starr, Harriet "W. Barry, Zalomon W. Starr, Mary E. Starr, Frederick A. Starr, during their natural lives, and after their death I do devise and bequeath the same to their heirs in fee forever.”

And the persons in the management of the property, under the authority of the executor, paid over to the defendant, as the widow, one-third of the gross rents or profits of these two parcels of land. It was held at the trial that this was an unauthorized disposition of such proceeds, so far as taxes and the expenses of necessary repairs were paid, upon this one-third. And that for the amounts received by her to this extent she should be held accountable to the other parties, who, by the sixth paragraph of the will, were interested in the estate.

But in the fourth paragraph the use and income of one-third of these parcels of land were unqualifiedly devised to the widow. It is true, if this devise stood by itself, and was all that was contained in tlie will relative to her life estate, that she might legally be obliged to bear the necessary expenses of keeping her one-third of the property in repair and of paying the taxes and assessments upon that third. But by the sixth paragraph the testator appears to have had this subject particularly in mind. His attention was directed to these charges and to the propriety of making a provision for their payment in the will. And if he had been dispiosed to subject this third to the payment of any part of these charges, it is reasonable to suppose that he would have so declared in the fourth paragraph of his will. But he failed to do that or to make any allusion whatever to this subject. That was reserved for the sixth paragraph, by which the other two-thirds of the rents and profits of these parcels of land were directed to be disposed of. And by the directions which he then gave, his executors or the survivor of them, were required, out of the rents and income of the other two-thirds of the land, to pay all taxes, expenses and repairs, and all other charges thereon, and to divide the residue of the income thereof among his children. His intention was not clearly expressed by the employment of this language as it was used. But it was sufficiently so to support the inference that the taxes, expenses and repairs were not intended to be divided, but were to be wholly paid out of the proceeds of the rents and profits of this two-tliirds of the land. If that had not been the testator’s design it is reasonable to believe that a direction concerning this subject would have been inserted in the fourth paragraph of the will. Or if it had been the intention to leave the burden of taxes and repairs on the property, as that should be imposed upon it by law, then it may be presumed that no reference whatever to the payment of taxes and expenses would have been inserted in any part of the will. That, however, was not his design, but it was to provide for the payment of taxes and expenses out of the income of the property. And from that income his direction was to his executors to pay all taxes, expenses and repairs and charges thereon.

Literally, it is true this would confine the payments to the taxes and expenses of the two-thirds. But the language employed by the testator is not required to be taken and construed literally, where, from other parts of the will, and the objects he probably had in his mind, it appears that such a construction would not be warranted. And in this instance the circumstance that he gave to his widow, without qualification, the use and income of one-third of this property, and confined his directions concerning the payment of taxes and expenses to the income of the other two-thiids, are indications that he intended she should be allowed to receive one-third of the gross amount annually yielded by the land, and that the taxes and expenses should be paid from the other two thirds. This is confirmed by the final direction that after the decease of his children he devised and bequeathed the property to their heirs in fee forever. This devise he could not' have intended to restrict to the two-thirds previously mentioned in the paragraph. His purpose was to dispose of his estate by his will. And in conformity with that purpose this final clause of the paragraph should be construed to include the entire estate in these parcels of land arid to entitle the heirs of his children, not only to the two-thirds reserved for their benefit, but also to the one-third in which he created the life estate for the support and maintenance of the widow. And under this construction of the will she has received no more out of the income of the property than she was entitled to under the directions given by the testator.

The testator died in December, 1856. And previous to the 18th of October, 1858, a controversy had arisen in which she claimed to be entitled to dower in the land in addition to her right to one-third of the rents and profits, and an action "was brought by her-to establish that right. But as the real estate of the testator consisted wholly of these two parcels of land, it is to be inferred from the directions contained in the will that he intended those made in favor of the widow to be in lieu of dower. For he disposed of the entire rents and profits, as well as of the fee, of the other two-thirds of the property. And it would defeat that disposition-in part, as it was directed, to hold her to be entitled to dower in this land in addition to her right to receive one-third of its income. And where that is found to be the case, there the directions contained in the will are required to be construed as excluding the right to dower. (Matter of Estate of Zahrt, 94 N. Y., 605; Konvalinka v. Schlegel, 104 id., 125.)

But while this controversy remained unsettled an agreement was made between the widow and four of the children of the testator for its adjustment, and that agreement, though not specially set forth in the answer, was received by apparent consent upon the hearing. And, by the agreement, her right to receive one-third, of the rents' and profits of the land, undiminished by taxes or expenses of repairs, was conceded and agreed to. The plaintiff subscribed this agreement. It was made to adjust a dispute between these parties and the widow, and included the controversy as it existed between them, she surrendering her claim for dower, and the other parties agreeing to her right to receive one-third of the gross profits of the land. And from that time she was paid one-tliird of the gross rents of these two parcels of land. And having received such rents in this manner, after the making and execution of this agreement by the plaintiff, he was precluded from claiming or recovering any part of the money she received pursuant to this authority. And so were the other persons likewise who subscribed this instrument.

Besides that, the money was voluntarily paid to the widow under a claim of right on her part, and with a, complete knowledge of all the facts on the part of the persons making, or affected by, the payments. And where payments are made in that manner, the law will not afterwards allow the act to be disaffirmed and the money to be recovered from the person so receiving it. (Cox v. Mayor, etc., 103 N. Y., 519.)

The judgments, so far as they impose this liability upon the widow, are erroneous, and they should be reversed, with posts to her to abide the event, unless the parties shall, within twenty days after notice of the decision, stipulate to modify the judgments by relieving her from this liability, and correspondingly reducing the allowance made by way of costs to them out of the proceeds of the property. And if such stipulation shall be given, then the judgment should be affirmed as modified, without costs of the appeal to either party.

Yan Brunt, P. J., and Barrett, J., concurred on parties stipulating to modify judgments as stated in opinion; the judgments, as so modified, affirmed, without costs of the appeal to either party.


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    In the Matter of the Taxation, under Chapter 483 of the Laws of 1885, of the Estate of JOHN P. HOWARD, Deceased.

      Restitution of money paid improperly under the collat&i'al inheritance tax law (chap. 483 of 1885) —when it will not be oi'dered.

    Where, after payment of a tax under an order of a Surrogate’s Court holding an estate to be liable to taxation under chapter 483 of the Laws of 1885, an appeal has been taken from the order of the Surrogate’s Court and such order has been reversed, but in the meantime the money has been paid by the comptroller of the city of New York to the State comptroller, restitution of the moneys so paid will not be ordered to be made by the comptroller of the city of New York.
    The remedy in such a case is prescribed by section 12 of the act in question, which is exclusive of any other remedy for the attainment of this result.

      Dewey v. Supervisáis, etc. (62 N. Y., 294) followed.
    Motion for an order for tlie restitution of moneys paid to the comptroller of tbe city of New York for collateral inheritance taxes.
    The appeal was taken by the ancillary executors and by the legatees under the will of John P. Howard, from an order of the Surrogate’s Court of the county of New York of November 22, 1887, overruling exceptions and fixing the cash value of the property of John P. Howard, deceased, as subject to taxation.

      S. B. Brownell, for the motion.

      B. E. Selmes, opposéd.
   Daniels, J.:

The money, for which restitution has been'applied, was paid over to the comptroller of the county of New York by the ancillary executors of the estate of John P. Howard, deceased. This payment was made under an order or decree of the surrogate, holding the estate to be liable to taxation under chapter 483 of the Laws of 1885. On appeal from a like order or decree to the General Term, this was reversed, and the decision is reported in Matter of Tulane (51 Hun, 213).

The executors’ motion is made, upon the fact of this reversal, for restitution of the money under section 1323 of the Code of Civil Procedure, providing that “ when a final judgment or order is reversed or modified, upon appeal, the appellate court or the General Term of .the same court, as the case may be, may make or compel restitution of property or of a right lost by means of the erroneous judgment or order.” . But this section of the Code cannot be held to include the present application, for, by the provisions contained in the law under which the payment was directed to be, and was, in fact, made, the tax so paid never became any paid: of the money or property of the city and county of New York. It was, on the contrary, paid to and received by the comptroller for the benefit of the State, and under the act it has been made a State tax, and the comptroller was required by section 21 to pay over the amount so received by him to the State treasurer. This section has required taxes obtained in this manner to be reported to the State comptroller on the first Mondays of March and September in each year, and they are required to be paid by the comptroller of the county to the State treasurer at the times mentioned in this section of the act.

It has not been asserted that the comptroller of the city and county has, in any manner, failed to discharge this duty. But it has been stated,^without contradiction, that the money was so paid over by him as that was directed to be done by this statute, prior to the time when the other order or decree of the surrogate was reversed by the General Term. He, accordingly, has no fund or money in his hands out of which restitution can be ordered, neither does the act contemplate that he shall be required to return it to the party who may become entitled to receive it, after it has been paid over to the authorities of the State. A different remedy has been prescribed by the act for the reimbursement of the money. That has been created by the twelfth section declaring that: “ When any amount of said tax shall have been paid erroneously to the State treasurer, it shall be lawful for him, on satisfactory proof rendered to the comptroller by said county treasurer or comptroller of such erroneous payment, to refund and pay to the executor, administrator, person or persons, who have paid any such tax in error, the amount of such tax so paid, provided that all such applications for the payment of such tax shall be made within five years- from the date of such payment.”

This is a simple and available proceeding afforded to the party entitled to the reimbursement of the money paid for the tax, and it was, without doubt, intended to be exclusive for this object. This statute and the law. preceding it have created a new liability not previously existing under the laws of the State. And a remedy by this section of the act of 1885 has been provided, and it is complete and effectual, to obtain the money after the reversal of the order or decree under which it may have been paid, and was intended, without doubt, to be the only mode of proceeding which should be adopted and followed for that purpose. For it could not have been intended that the law should receive such a construction, or that such an obligation should be imposed upon the person paying over the money under its directions to the State authorities, as, that upon the reversal of the proceeding on appeal, the officer in this manner paying it over should be bound to reimburse to the party making the payment to him the money so disposed of under the authority and direction of the statute. His duties have been wholly confined to receiving the money, reporting and paying it over, and by discharging these duties, in the manner provided by the act, he relieves himself from all responsibility or liability to refund it upon a reversal of the order or decree requiring its payment.

The case in this respect is similar in its principle to Dewey v. Supervisors, etc. (62 N. Y., 294). There the county of Niagara was sued for the recovery of moneys which had been raised by assessments to pay the expenses of draining certain lowlands. The assessment proceeding had been reversed upon certiorari, but the money had been paid out and disposed of as the law directed it to be by the treasurer of the county before the action was commenced, and that was held to constitute a defense and prevent a recovery against the county. The same principle should he applied here, not only from the nature and provisions of the statute but from the rule also in this manner maintained by the court.

The motion will, accordingly, be denied.

Van Brunt, P. J., and Brady, J., concurred.

Motion denied.


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    LOUISA WILLIAMS and Others, Respondents, v. SAMUEL D. FOLSOM and Others, Appellants.

      Examination of a defendant before trial — the necessity thereof before the trial must be shown.

    It is necessary, on an application for the examination of the defendant before trial, to show not only that a knowledge of the facts, sought to be elicited on such examination, can only be obtained by the examination of the opposite party, and is essential to enable him to proceed with the prosecution of the action, but also that a necessity exists for obtaining the evidence of the party sought to be examined in relation to such facts prior to the trial of the action.

      Jenldns v. Putnam (108 N. Y., 272) followed; Miller v. Kent (59 How. Pr., 321); Judah v. Lane (12N. Y. St. Kep., 131); JDyettr Seymour (19 id., 765); Eroihingham v. Broadway, etc., Railroad Company (9 Civ. Pro. R, 304) distinguished.
    Appeal by the defendants from an order made at the New York Special Term, and entered in the office of the clerk of the county of New York July 3,1889, denying a motion to vacate an order for the examination of the defendants before trial.

      George Putnam, Smith, for the appellants.

      Henry B. Galley, for the respondents.
   Daniels, J.:

An order was heretofore made in this action for the examination of the defendants, and upon the denial of the motion to vacate it an appeal was taken to the General Term and the order was vacated, because of the insufficiency of the case made in its support. The case, as it has been presented for the other order, does not so materially differ from that previously presented as to remove it from the controlling effect of this decision.

The action has been brought for damages arising out of the alleged misconduct of the defendants as real estate agents in and about the sale of property owned by the plaintiffs. It has been alleged that they were induced to convey the property to the wife of one of the defendants, by means of misrepresentations made concerning their ability to obtain a better purchaser for it, and their ability to sell it upon more advantageous terms. The price for which'it was sold was the sum of $97,000. • And shortly after its conveyance in this manner a sale was made of it to another person for tlie sum of $110,000, the claim being that the defendants should be held liable for this difference. In the affidavit on which the order has been made it has been stated, in support of the application, “that plaintiffs desire the testimony of said defendants to prove, among other things, the following facts: That said Jessie Folsom was not a purchaser in good faith and for value of the premises hereinbefore referred to, but acted for the benefit of defendants; that defendants received offers for the purchase of said premises, which they did not communicate to plaintiffs, or either of them; that they failed to take the necessary and proper steps for the sale of said property, but conceived the idea of purchasing it themselves, or for their benefit, at an inadequate price; that within a short time after the contract of sale hereinbefore mentioned was signed by the plaintiff Williams, said property was resold to said Fred J. Stone at a price of $110,000, and that said sale was for the benefit of defendants, or some of them, and not for the benefit of said Jessie Folsom; that the foregoing are merely some of the matters upon which the testimony of the defendants is required.”

J3ut from this statement it nowhere appears that the proper prosecution of the plaintiff’s action will be in any manner dependent upon their ability to obtain the examination of the defendants before the trial itself shall actually take place. No reason has been suggested for even supposing that the defendants will not be as accessible as witnesses in the action when the time for the trial shall arrrive as they are at the present time, and no necessity accordingly exists for their examination. Certainly they will nót be required to prove the price for which Mr. Stone purchased the property, for he will be a competent witness to make that proof. And, as to the facts that the defendants received offers for the premises not communicated to the plaintiffs, or that they failed to take the necessary and proper steps to make a suitable sale of the property, which are the only additional circumstances proposed to be proved by them, there is no reason for supposing that they may not be as well proved by the examination of the defendants upon the trial as by taking their testimony previous to that time. And proof of as much as that was considered to be required for the support of the order in Jenkins v. Putnam (106 N. Y., 272, 275).

The cases of Miller v. Kent (59 How Pr., 321); Judah v. Lane (12 N. Y. St. R., 131); Dyett v. Seymour (19 id., 765) and Frothingham v. Broadway, etc., Railroad Company (9 Civ. Pro. R., 304) are entirely distinguishable from the application which was made for this order, for in each of them it was made to appear that a knowledge of facts, which could only be obtained by the examination of the opposite parties, was essential to enable the plaintiffs to proceed with the prosecution of the action. They were facts, too, of such a description as was required to be known before the trial itself, while here no necessity whatever exists or has been shown for obtain" ing the evidence of the defendants prior to the trial of the action. The cases are so common where parties are required to be examined, at the instance of their adversary, for an application to be made either for the purpose of annoyance or the mere discovery of what may be the evidence expected to be encountered upon the trial, that it has become necessary to apply reasonably strict rules for the support of these proceedings. It is quite clear from the case, as it has been stated in the complaint and in this affidavit, that no necessity exists for the examination of these defendants prior to the time of the trial.

The order should, therefore, be reversed, with ten dollars costs and disbursements..

Van Brunt, P. J\, and Brady, J., concurred.

Order reversed, with ten dollars costs and disbursements.


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    LEWIS SANDERS, Appellant, v. AGNES GORDON SOUTTER and Others, Respondents.

      Affidavit, on application for a bill of particulars, may. be made by the defendant’s attorney

    On an application to obtain an order requiring the plaintiif to serve a bill of particulars of liis claim, it is not essential that the facts justifying such application shall be proved by the affidavit of the party himself, but such facts may be established by the affidavit of the defendant’s attorney.

      Tim v. Smith (93 N. Y., 87) distinguished.

      Appeal by tbe plaintiff from an order made at chambers, in the city and county of New York, and entered in the office of the clerk of the county of New York, August 29, 1889, directing the service of a bill of particulars of the plaintiff’s cause of action.

      Lewis Sanders, for the appellant.

      Delos MoGurdy, for the respondents.
   Daniels, J.:

An essential part of the plaintiff’s cause of action consists of the demand for services performed by him as an attorney and counselor at law for and advances of money made to the defendant, at whose request the services are stated to have been rendered. The amount claimed is $10,000 and upwards, and the allegations concerning the services and the advances are in the most general form in which they can be made. TJponthe face of the complaint there is reason, therefore, for assuming that a bill of particulars of the plaintiff’s demand might very well become necessary to enable the defendants to meet the case without surprise upon the trial. But, notwithstanding the general nature of the allegations made upon this subject, the practice still requires that some proof shall be presented of its necessity to justify the making of an order directing the service of a bill of particulars. (Willis v. Bailey, 19 Johns., 268.) The power of the court upon this subject as it is contained in section 531 of the Code of Civil Procedure is very general. Por it has provided that in any ease it may direct a bill of particulars of the claim of either party to be delivered to the adverse party.

The measure of proof to be furnished to obtain the order has been left to the discretion of the court and the apparent necessities of the case. Neither the statute nor the practice has required the affidavit of the party himself, but whenever the proof from any source shall be obtained that a bill of particulars is a necessity in the action, the court has complete authority to direct it to be served. The proof in this instance was supplied by the affidavit of the attorney for the defendants. And if it be assumed that a portion of his statement was broader than his knowledge of the facts, it is still reliable in the further affirmation that the defendants cannot safely answer the complaint until they are furnished with the particulars of the plaintiffs cause of action. This was a subject necessarily committed to the judgment and experience of the attorney himself. It was for him to decide whether a proper answer could be presented in the case without information of the particulars of the plaintiff’s demand. And if the defendant herself should make the affidavit, it would be founded mainly upon the judgment and advice of her attorney. He had examined the complaint as it was served, and, from his knowledge of the case and his legal experience he satisfied himself that an answer could not be intelligently served without a statement of the particulars of the plaintiff’s demand, and that was a sufficient foundation for the order made by the court. The case of Tim v. Smith (93 N. Y., 87) is no authority for the application of any different principle, for that decision was not made upon this subject. "What was then before the court was an application to discharge an attachment, and it was as to that that doubt was expressed of the ability of the attorney to supply the requisite proof. The decision has no bearing whatever upon an application of this description. As the case was made to appear, it was an entirely proper one for the order, for in no other way could the party or the attorney be apprised of the specific character of the demands relied upon to support the plaintiff’s action.

The order should be affirmed, together with the usual costs and disbursements.

Tan Brunt, P. J., concurred in the result.

Order affirmed, with usual costs and disbursements.