author: Macomber, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. AUSTIN J. CAMP, Appellant.

      Kidnapping — placing a person in cm insane asylum — ps'ocedure undm' chapter 446 of Laws of1874 — criminal intent essential to the crime — negligence not sufficient— proof required to sustain a conviction.

    Where a father was indicted for the crime of kidnapping, under section 211 of the Penal Code, in having placed his daughter in an insane asylum, where she was detained twenty-five days and then discharged as sane, and it appeared on the trial that the defendant had instituted proceedings before a county judge to have his daughter declared insane, and had obtained the usual certificate of insanity, under chapter 446 of the Laws of 1874, and the requisite approval of the judge, and had taken his daughter to the asylum under such certificate and approval:

      Held, that it was improper to instruct the jury, in effect, that they might render a verdict of guilty, although they should find that the defendant was sincere and honest in his motives, unless they should also find that he exercised the care and foresight which an ordinarily prudent man would, in their opinion, exercise in the premises before instituting the proceedings for taking his daughter to the insane asylum.
    Negligence, which may support a civil action, cannot, in criminal cases, be substituted for the essential element of malice or criminal intent required to support a conviction upon a criminal charge.
    An indictment for kidnapping, under section 211 of the Penal Code, based upon the placing of a person in an insane asylum through proceedings under the statute (Laws of 1874, chap. 446), cannot be sustained or a conviction thereunder upheld simply by proving that the person so placed in an asylum was, in fact, sane at the time the proceedings for his incarceration were instituted by the defendant.
    In order to sustain a conviction, under said section 311 of the Penal Code, it must be made to appear, besides the actual unwilling detention or imprisonment, first, that the seizure and confinement were “without authority of law” (these words having here no reference to “due process of law”); and, secondly, that the imprisonment or confinement was done “ secretly.”
    Appeal by the defendant, Austin J. Camp, from a judgment, entered in the Cayuga county clerk’s office on the 3d day of July, 1891, on the conviction of the defendant at the Cayuga Oyer and Terminer of the crime of kidnapping, under section 211 of the. Penal Code.

      Frmih P. Wright, for the appellant.

      A. P. Pioh, for the respondent.
   Macomber, J.:

The defendant was indicted at the Oyer and Terminer of Cayuga county in October, 1890, for the crime of kidnapping. The trial came on in that court at the May term in 1891, when the defendant was found guilty of the crime charged in the indictment, under ‘section 211 of the Penal Code. Judgment was entered in pursuance of a verdict, but not till after a motion had been made for a new trial and denied. The defendant was sentenced by the court to confinement in the State’s prison for two and one-half years. Prom that judgment this apjseal is taken.

The person alleged to have been kidnapped was Adah Baird, a woman aged twenty-nine years, who was one of the three children of the defendant. She was, at the age of seventeen, married to one Soveral J. Baird, and, after cohabiting with her husband for five years, she left him, for good cause, and, with her child, took up her abode with her father in Moravia, N. T. After remaining with her father some time, she removed to the house of her grandfather, Jeremiah Camp, of the same village, who was a man of considerable property, but was, in a measure, helpless through blindness.

The people claimed, upon the trial, that the taking up of the residence by Adah Baird with her grandfather, and the expressed purpose of the latter to convey to her his house and lot then occupied by him, together with considerable sums of money, were acts inimical to the defendant, and furnished a sufficient motive for his subsequent conduct. While, on the other hand, much evidence is given to show serious aberrations of mind on the part of the daughter, justifying the belief that she was so far of unsound mind as to be incapable of properly caring for herself. On the 2d -day of August, 1890, after conferring with a justice of peace in regard to the matter, and being advised by the latter to see the county judge of Cayuga county in the premises, the defendant called upon the county judge and stated the case in regard to his daughter, who was represented by him to be insane. At such time the county judge said that he should appoint two entirely competent and disinterested physicians to inquire into the mental condition of the defendant’s daughter, namely, Dr. Allison, then in charge of the State Hospital for the Insane at Auburn, and another reputable and well-known physician by the name of Dr. Harter. These physicians, after the examination of Adah Baird, and after a conference with the defendant in regard to her previous conduct, executed and delivered to the defendant the usual certificate of insanity, under chapter 446 of the Laws of 1874, and this certificate was duly approved by the county judge on the 5th -day of August, 1890; and thereupon the defendant, having been furnished with such certificate and approval by the county judge, took his daughter to the State Hospital for the Insane at Htica, where she was detained for twenty-five days, and was then, by the doctors in charge of that infirmary, discharged as a sane person.

The section of the Penal Code under which the defendant was indicted is as follows: “ Section 211. A person who willfully— 1. Seizes, confines, inveigles or kidnaps another, with intent to cause him, without authority of law, to be secretly confined or imprisoned within this State * * * is guilty of kidnapping, and is punishable by imprisonment for not more than fifteen years.’ ”

The learned justice, at the trial, ruled and decided, in various forms, that, however honest the defendant may have been in his belief of the actual insanity of his daughter, yet if, in instituting the proceedings culminating in her involuntary confinement in the State hospital at Htica, he did not exercise that care and discretion which an ordinarily prudent man should exercise under like circumstanees, the jury could convict him of the crime charged in the indictment.

At the close of the people’s case in chief, on deciding the motion for a direction of a verdict for the defendant, the learned judge said: If he (the defendant) believed her (Adah Baird) to be insane, then the question would have to be submitted to the jury, whether, under all the circumstances, the facts were such tending toward her insanity as would lead men of ordinary prudence and caution and discretion to believe that she was insane. That will be the question. His belief must be founded, as I said before, upon such a state of facts that an individual acting honestly, first, would believe her to be insane; next, upon such a state of facts that a person of ordinary prudence, caution, discretion and intelligence would be led to believe, under the circumstances, that she was insane. That he must have reasonable grounds of belief.” In his charge to the jury the learned judge further said : “ There is another question which I desire to' call your attention to, and that is, whether the defendant had probable cause to believe that his daughter was insane. That does not. depend so much upon the fact whether she was insane or not, if the apparent facts were such that a discreet and prudent person would be liable to believe that she was insane, and he acted upon that belief in good faith, then he would not be guilty of the crime, although she may not have been insane at the time. Upon the question whether the defendant had probable cause for instituting the proceedings, you are instructed that the true inquiry is, not what the actual facts were as to the insanity of the defendant’s daughter, but what did the defendant have reason to believe, and what did he believe, in reference thereto at the time he made the complaint. In other words, was there any foundation for making the complaint, and was there any foundation for him, having known his daughter all her lifetime, in believing that she was insane.”

At the close of the charge, the learned counsel for the defendant asked the court to instruct the jury as follows: “ That if the jury have any reasonable doubt over the question submitted to them as to whether Camp had reasonable ground to believe that his daughter was insane, that the doubt must be given to the defendant and they must acquit.” That proposition was charged. It will thus be seen that the verdict of guilty rendered by the jury may have been, and probably was, under the facts disclosed, based upon the ground that while the defendant was sincere and honest in liis. motives, being desirous, as the father of the supposed insane person, to act solely for her good, and that of her family; yet, unless he exercised the care, prudence, foresight and circumspection which an ordinarily prudent man, under the standard to be erected by the jury themselves, should exercise, then they could find the defendant guilty of the charge made in the indictment. This we deem to be such an error as calls for a reversal of the judgment, irrespective of the contention made by the district attorney heretofore stated. This doctrine annihilates, as it seems to us, that essential element to a conviction of a person upon a criminal charge, namely, a criminal intent. It is inconceivable that if the accused acted honestly, and under such lights as he possessed, but still not with that degree of intglligence and care which the jury, perhaps, in an arbitrary way, might say an ordinarily prudent person should exercise, he could be convicted of the crime of kidnapping under this statute.

Furthermore, this doctrine assumes that the jury may find the motive, which so often plays an important part in criminal trials, was good and commendable. If this doctrine were upheld, we should have, therefore, presented the anomalous situation of a conviction upon a criminal charge of a person who, actuated with honest motives for the benefit of a member of his family, instituted, without malice and without criminal intent, proceedings under a statute designed for the protection of the unfortunate. With great deference to the learned justice presiding at the trial, we are constrained to hold ’that this ruling, though it may be applicable in a civil action to recover damages for false imprisonment, cannot be sustained under our criminal laws. Malice and negligence cannot thus be confounded together. Malice,” says Wharton on Criminal Laws (126), “ arises from an evil purpose; negligence, from a failure of pm’pose; malice is imputable to a defect of the heart, negligence to a defect of intellect.” Malice imports an evil intent, or wish or design to vex, annoy or injure another.” (Penal Code, 718, sub. 3.)

Though in other portions of the charge of the learned justice, the jury was explicitly instructed that a criminal intent on the part of the accused must be found before he could be convicted of crime, yet it seems to us that the jury must have understood, from the rulings and instructions hereinbefore quoted, that the defendant might be convicted of the crime of kidnapping if he failed to exercise a proper degree of foresight in the premises before instituting the proceedings for taking his daughter to the State Hospital; and, for aught that we can find in the record, the verdict may have been found solely on that ground. ■

The foregoing views necessarily lead to a reversal of the judgment appealed from, and to a new trial. But there is another and a more radical reason why the conviction of the defendant cannot be upheld. Upon the trial it was proved that the defendant acted throughout under the provisions of chapter 446 of the Laws of 1S74, prescribing the steps necessary to be taken for the confinement of insane persons in the insane asylums of. the State. Indeed, the indictment alleged that there was procured by the defendant the prescribed statutory certificate of two reputable physicians declaring the defendant’s daughter to be insane before her detention at the State Hospital at Utica. Though the approval indorsed on such certificate by the county judge is not alleged in the indictment, yet the same was proved, and could, doubtless, have been put in evidence as a part of the people’s case, being a material and necessary part of the warrant of authority to the hospital authorities for the detention of the patient for more than five days.

The learned district attorney has presented to us an argument to the effect that this indictment may be sustained, and the conviction of the defendant upheld, simply by proving to the jury that the daughter was, in fact, sane at the time that the defendant instituted these proceedings for her incarceration. "We cannot assent to the conclusion reached by this argument, for the reason that it is contrary to the statute itself under which the defendant was indicted. Nor do the authorities upon which he mainly relies (Ayers v. Russell, 50 Hun, 282; Hurley v. Martine, 10 N. Y. Supp., 92; the latter affirmed by the Court of Appeals, 128 N. Y., 657), which were civil actions to recover damages for false imprisonment, in any respect support the contention that a person may be convicted under the statute by such evidence alone. In order to sustain a conviction under the statute, there must be made to appear, besides the actual unwilling detention or imprisonment, two things :

First. The seizure and confinement must be shown to have been, in the words of the statute, “without authority of law.” This language “ without authority of law ” has no reference whatever, as counsel seem to think, to “ due process of law.” If the statute is observed, as was done in this instance by the defendant whose acts were regulated by its provisions, how can it be said that the imprisonment by the defendant of his daughter was “ without authority of law?” The two reputable physicians certified to the daughter’s insanity, and the county judge duly approved thereof under the statute, and the same was placed in the defendant’s hands before he took any steps towards her restraint or removal to the State hospital.

In no sense can the act, with which the defendant is charged, be said to have been done “ without authority of law.” ■ The burden of proof rested with the people to establish their allegation in this regard, and they failed to do so.

Secondly. The imprisonment or confinement must be shown to have been done “ secretly.” The phrase of the statute is “ to be secretly confined or imprisoned within the State.” In this respect, also, the people failed to establish any case against the defendant. Nothing could have been more public than the taking of the supposed insane person, and hei*' detention in one of the public institutions provided by the State for insane persons.

The people having failed to make a case against the defendant in the two particulars last mentioned, the motion that the court advise the jury to acquit the defendant should have prevailed. As it is manifest that no stronger case can be made out by the people, a new trial seems to be unnecessary.

It follows that the judgment and conviction should be reversed.

Dwight, P. J., and Lewis, J., concurred.

Judgment of conviction of the Oyer and Terminer appealed from reversed and the defendant discharged.


source: Caselaw Access Project

license: Public Domain

text:
    SOPHIA D. TAYLOR, Plaintiff, v. THE EMPIRE STATE SAVINGS BANK OF BUFFALO, Defendant.

      Savings banks — individual deposit in excess of the limit of $3,000 preswñbedby statute — interest on the excess not recoverable — banking act tf/1882 {chap. 409) — the banking law of 1892 {chap. 689; chap. 37 of the general laws'*

    By force of section 31 of chapter 677 of the Laws of 1892 (the statutory construction law), which declares that the repeal of a statute shall not affect any act done or right accrued prior to the time of such repeal; and section 32 of the same chapter, which declares that the provisions of any chapter of the revision of the general laws, so far as substantially the same as those of laws existing at the time such chapter takes effect, shall be construed as a continuation of such laws, modified or amended according to the language employed in such provision, and not as new enactments, sections 256, 257, 267 and 290 of the banking act of 1882 (chap. 409), repealed by section 215 of the general banking law of 1892 (chap. 689), passed May, 1892, declared to take effect on the thirtieth day after its final passage, were in force until June 17, 1892, and since that time sections 113 and 123 of the general banking law of 1892 (chap. 689), which contain substantially the same provisions, have been in force in place of said sections of the act of 1882.
    Section 290 of the banking act of 1882 (chap, 409), which declares it unlawful for any savings bank to receive from any individual a deposit or deposits, in excess, of $3,000, does not make the act of leaving, at a savings bank, money, in excess of that sum, unlawful; and the depositor of such excess is not thereby prevented from recovering the full amount of his deposits from the bank.
    Section 290 o’f the banking act of 1882 was not intended to render void a contract entered into between a depositor and a savings bank in contravention thereof.
    Section 290 of the banking act of 1882, was amended in 1885 (chap. 477) by adding to it a clause to the effect that the limitation on deposit should not be construed .as “.prohibiting the crediting of interest on individual accounts which may have reached the maximum limit, provided that thereafter no interest shall be allowed on such increase.”

      field, that, notwithstanding the provisions of sections 257 and 267 of the banking act of 1882, and of sections 113 and 123 of the general banking law of 1892, in relation to crediting interest on deposits, to be repaid to depositors, and the fact that said chapter 477 of the Laws of 1885 had been repealed by the general banking laws of 1892, a depositor was not entitled to receive any increase of his deposit over $3,000 by way of interest.
    While, on the one hand, a savings bank cannot avail itself of its own violation of the law against receiving deposits in excess of $3,000, so as to deprive an innocent depositor of his money ; yet, on the other hand, the depositor himself under this provision of the law is not placed in a position in which he can benefit-himself by receiving any increase on his deposits by way of interest.

      Submission of a controversy between Sophia D. Taylor, plaintiff, and the Empire State Savings Bank of Buffalo, defendant, without' action, under section 1279 et seq. of the Code of Civil Procedure.

      John G. Milburn, for the plaintiff.

      Charles Daniels, for the defendant.
   Macomber, J.:

The facts contained in the submission of this case are, that the defendant is a savings bank, located and doing business under the laws of the State of New York, at the city of Buffalo, and was originally incorporated under chapter 777 of the Laws of 1867 by the name of the National Savings Bank of Buffalo, and, under that name, continued to exist and do business until the 1st day of September, 1892, when, by proceedings taken under chapter 409 of the Laws of 1882, its name was changed to “ The Empire State Savings Bank of Buffalo,” the present defendant.

The plaintiff deposited money in this bank from September 15, 1880, to and including June 16, 1892, and at the last-named date a balance existed in her favor, and now remains unpaid, over the amounts from time to time paid to her, in the sum of $24,272.75. Depositors, whose deposits are under the sum of three thousand dollars, object that the defendant is not liable to pay to her any part of her deposit exceeding in amount the sum of three thousand dollars, under section 290 of chapter 409 of the Laws of 1882. On the other hand, the plaintiff claims the further amount of her deposits, less twenty-two per cent ordered to be deducted by an order of the Special Term in an action brought by the attorney-general. The defendant, acting at the suggestion and in the interest of small depositors, declines to pay to the plaintiff more than three thousand dollars. The further claim is made by the plaintiff of four per cent interest on her balance from time to time over three thousand dollars, that being the rate of interest paid by the bank on deposits of three thousand dollars or less, but the defendant denies her right to such interest. Such are the two questions submitted.

Section 290 of chapter 409 of the Laws of 1882, declares that: “ It shall be unlawful for any savings bank, directly or indirectly, to receive from any individual a deposit or deposits in excess of three thousand dollars, but this limitation shall not apply to deposits arising from judicial sales or trust funds.”

It is not claimed in behalf of the plaintiff that the money deposited by her was trust funds, or was produced at any judicial sale. But this chapter (chap. 409 of the Laws of 1882), except sections 68 and 69, and sections 312 to and including 327, was repealed by section 215 of chapter 689 of the Laws of 1892. Section 113 of the last-named act contains the following provision: u The aggregate amount of deposits to the credit of any individual at any time shall not exceed three thousand dollars, exclusive of all deposits arising from judicial sales or trust funds or interest.”

Section 256 of the Laws of 1882 contains a provision making it lawful for savings banks to receive any sum or sums on dejiosit and pay the dividends thereon. By section 257 of that act the sum so deposited, with any dividends or interest credited thereto, is directed to be repaid to the depositors, and, by section 267, the rate of interest payable on deposits was to be regulated by the trustees •according to the principles there laid down, but not to exceed five per cent. The provisions of sections 256, 257, 267 and 290 are substantially retained in sections 113 and 123 of the act of 1892.

Section 32 of chapter 677 of the Laws of 1892 has the following enactment: “ The provisions of any chapter of the revision of the general laws, of which this chapter is a part, so far as they are substantially the same as those of laws existing at the time such •chapter takes effect, shall be construed as a continuation of such laws, modified or amended according to the language employed in such provisions, and not as new enactments.”

Section 31 declares: “ The repeal of a statute, or a part thereof, shall not affect or impair any act done or right accruing, .accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected.”

Chapter 677 of the Laws of 1892, took effect May 18, 1892, the date of its enactment. The general banking law of 1892, passed May 18, 1892 (chapter 689), took effect on the thirtieth day after its final passage. Hence it appears that sections 256, 257, 267 and 290 of the banking act of 1882 (chapter 409) were in force until June 17, 1892, and since that time sections 113 and 123 of the general banking act of 1892 (chapter 689) have been in force in place of the former provisions.

It will be observed that by the banking act of 1882, no penalty or forfeiture was imposed upon the depositor in respect to deposits of over three thousand dollars. It was made unlawful by that act for any savings bank, directly or indirectly, to receive from any individual a deposit or deposits in excess of three thousand dollars. But this submission does not concern any question arising upon an effort made to impose a penalty or punishment upon the savings bank for violation of that provision of the statute. The act of leaving the money at the bank is not declared to be unlawful, and, consequently, the plaintiff may recover the full amount of' her deposits. "We are guided, to a great extent, to this conclusion by the case of Sackett's Harbor Bank v. Codd (18 N. Y., 240), where the court, per Comstock, J., says: “ The receiving bank, I assume, violates the statute, because it exacts a greater discount than it is allowed to take. But is the customer also guilty ? The answer to the question is plain. The statute declares it to be unlawful for a bank or banker to receive foreign notes at a greater rate, etc., and it prescribes a penalty of $1,000 for each offense. (Stat. of 1853, chap. 223, § 4; Stat. of 1839, chap. 355, § 4.) The language in which the offense is defined, and the penalty declared, evidently does not include the customer making the deposit or delivering the notes. No degree of guilt, therefore, attaches, in such a case, to anyone except the corporation and its agents, or the individual banker, receiving the notes at the prohibited rate of discount. The act, it must be borne in mind, involves, in itself, no moral turpitude. It is an offense, because the statute declares it to be so, and for that reason alone. It is an offense, therefore, which has precisely the proportions the statute gives to it, and it can have no other or greater.” (See, also, the reasoning of the court in Pratt v. Short, 79 N. Y., 437; Rome Savings Bank v. Kramer, 32 Hun, 270, affirmed sub. nom. Rome Savings Bank v. Krug, 102 N. Y., 331; Fifth Avenue Bank v. R. R. Co., 44 N. Y. St. Rep., 379; Cogswell v. Bank, 59 N. H., 43). There are several Federal decisions bearing quite directly upon the question, namely, National Bank v. Whitney (103 U. S., 99); Fortier v. New Orleans National Bank (112 id., 439); National Bank v. Matthews (98 id., 621); Gold Mining Co. v. National Bank (96 id., 640).

On the whole, we think that section 290 of chapter 409 of the Laws of 1882 was not intended to render a contract void which was entered into between the depositors and the bank m contravention of such statute.

But the alleged right of the plaintiff to recover interest on her deposits over the sum of three thousand dollars of principal involves different considerations.

Section 290 of chapter 409 of the Laws of 1882 was amended by chapter 477 of the Laws of 1S85 by adding thereto the following clause : “ Nor shall it be construed as prohibiting the crediting of interest on individual accounts which may have reached the maximum limit, provided that thereafter no interest shall be allowed on such increase.” If we understand correctly, this statute, as amended, it was palpably a modification of the original law so as to permit an actual increase of deposits over three thousand dollars to the extent of the sum which should be credited under the rules of the bank as interest to the deposit. But it was something more. It contained the affirmative provision that no interest should be allowed thereafter on such increase of deposits over and above three thousand dollars. But it is argued by the learned counsel for the plaintiff that,-inasmuch as this act (chap. 477 of the Laws of 1886) was repealed by the act of 1892, that, therefore, there was no prohibition against the payment of interest on deposits in excess of three thousand dollars. Attention is also called to that part of the statute which provides that deposits shall be repaid, with interest “credited thereto ; ” and to section 123, in relation to crediting interest; and it is contended that they contain nothing preventing the crediting of interest to deposits which exceed three thousand dollars ; and, further, that, if interest, were credited, say to an actual deposit of $3,000, the aggregate amount of such deposit, with the increase of interest, would exceed three thousand dollars, and hence be in violation of section 113 of chapter 689 of the Laws of 1892. But, as we held on the other branch of the case, that the bank cannot be permitted to avail itself of its own violation of the law in receiving deposits so as to deprive an innocent depositor of his money, so, on the other hand, the depositor himself cannot, under this provision of the law, be deemed to be in a position where he could benefit himself by receiving any increase of his deposits by way of interest. Not to permit the plaintiff to recover the amount actually deposited by her would be to work an unconscionable forfeiture and spoliation in a case where the deposit has not been by law declared to be void; but to permit her to receive any benefit by such deposit, when the same is declared to be unlawful, would be equally unjust to the small depositors.

¥e think, therefore, that judgment should be ordered for the plaintiff in respect to the principal; and for the defendant in respect to the interest on deposits over and above three thousand dollars, principal.

Dwight, P. J., and Lewis, J., concurred.

Judgment ordered on the submission for the plaintiff as to the principal of her deposits; and for the defendant as to interest on sums in excess of three thousand dollars.


text:
    WILLIAM P. COLVIN, Respondent, v. THE UNITED STATES MUTUAL ACCIDENT ASSOCIATION OF THE CITY OF NEW YORK, Appellant.

      Accident insurance — reinstatement of lapsed policy — remittance of premium by mail.

    Where an accident insurance policy had lapsed, and the company wrote to the insured a letter stating that if he would “remit ” his check for a certain amount the company would reinstate his policy and carry it for a certain period, and the insured mailed a check for the specified amount to the company on the evening of the day of the receipt of its letter, and was accidentally injured the next day while the check was on its way, by post, to the company, which received it the day after the accident.

      Held, that the word “remit” in the company’s letter implied, in the absence of any specific direction as to the mode of sending the check, a direction to send it by mail; that the deposit of the check in the mail, in pursuance of that direction, was an acceptance by the insured of the condition of reinstatement stated by the company, and the contract of reinstatement was then complete, and that the policy was thereby reinstated and an action for the amount payable by its terms, in case of an accident, could be maintained.

      Appeal *by tlie defendant, The United States Mutual Accident Association of the City of New York, from a judgmet of the Supreme Court, entered in the Monroe county clerk’s office July 21,’ 1892, in favor of the plaintiff on the verdict of a jury at the Monroe circuit, directed by the court, and from an order denying the defendant’s motion for a new trial made upon the minutes of the court, entered in said clerk’s office July 21, 1892.

      M. W. Cooke, for the appellant.

      JVorris Bull, for the respondent.
   Macomber, J.:

The; defendant, by its policy of insurance, on the 4th day of May, 1889, insured the plaintiff against personal bodily injuries which might be received through external, violent and accidental means, in the sum of twenty-five dollars per week, for a time not to exceed fifty-two consecutive weejcs, provided such disability wholly disabled him from transacting any and every kind of business, pertaining to his occupation, immediately and continuously after the receipt of such injuries. This policy lapsed July 20, 1889, through the omission of the insured to pay the dues or premiums required as a condition of its existence. But, on the 5th day of August, 1889, the plaintiff received from the defendant a letter, stating that though it had so lapsed on the day above mentioned, yet, if the plaintiff would remit to the defendant his check in the sum of four dollars, with exchange, the company would reinstate the plaintiff, and carry his policy until September. In the same letter the plaintiff was requested to return to the defendant the same letter, with the check. At 11.30 o’clock in the evening of August fifth, the plaintiff duly mailed his check to the defendant, dated that day, drawn upon the Merchants’ Bank of Bochester, payable to the order of the secretary and manager of the defendant in the sum of four dollars and fifteen cents, being the amount of the sum demanded by the defendant for reinstating the plaintiff, together with fifteen cents exchange thereon. This check was received by the defendant on August 7, 1889, and was duly collected in the regular course of business, and the money has since been retained by the defendant. The injury to the plaintiff happened at two o’clock in the afternoon of August 6,1889, while this remittance was on its way to New York by post.

The argument made by the learned counsel for the defendant is, that the deposit of the letter in the post-office at [Rochester on the night of August fifth, was not a payment, and that the plaintiff was not reinstated to membership in the defendant’s company until the actual receipt of such check, namely, on the 7th day of August, 1889. If this contention be upheld, there can be no recovery in this case, because, under one of the by-laws and regulations of the company .to which the plaintiff subscribed, there could be no indemnity obtained against the defendant for injuries or loss of time sustained between the time of the forfeiture and the reinstatement of the member. But we do not deem the position taken by counsel tenable. The letter itself written by the defendant before and received by the plaintiff on the fifth day of August, was not produced upon the trial. It had been returned by the plaintiff to the defendant in pursuance of the latter’s request. Hence, the defendant refusing to produce it, secondary evidence of its contents was given. The substance of the letter so given by oral testimony was as follows: “V our certificate under such a number lapsed July twentieth, and if you will remit us your check for four dollars, and exchange, we will reinstate you and carry your policy in force until some day in September.”

"We think that the deposit in the post-office was in pursuance of the direction given by the letter, and was an acceptance by the plaintiff of the terms of the proposition made by the defendant for reinstatement. The word “ remit ” means to send back, and in the absence of any specific direction as to the mode of sending the check there would necessarily be implied a direction to send it in the usual Avay, namely, by mail. The contract as contained in this letter was. not that upon the receipt and payment of the check the company would reinstate the plaintiff to membership ; but it was that if the-plaintiff would remit to the defendant his check for four dollars, with exchange, such reinstatement snould take place. He did remit it and he was thereby, in our judgment, effectively, reinstated as a member. No further act by either party was required to complete the fact of remittance. The contract was complete, upon the-mailing of the letter containing the check, and hence for the injuries, received while the letter ivas in transit, and before it reached the; defendant, an action may be maintained. This doctrine is elementary as applied to contracts in general when made by mail. But for authority, when applied to this particular description of contracts, see Taylor v. Merchants’ Fire Insurance Company (9 How. [U. S.], 390).

It follows that the judgment and order appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Judgment and order appealed from affirmed.


text:
    JOHN D. FORWARD, Plaintiff, v. THE CONTINENTAL INSURANCE COMPANY, Defendant.

      Mre insurance — knowledge imparted to an agent, at or before the issua/nee of the policy, imputed to the company — waiver of a condition in a policy.

    The knowledge by the agent of a fire insurance company, through whom a policy was issued, of a fact communicated at or before the time of the issuing of the policy, inconsistent with a condition of the policy itself, is to be imputed to the company issuing the policy.
    It is immaterial whether the agent, by whom such knowledge is thus acquired, is a general or a local agent of the company.
    The issuance of a fire insurance policy, with knowledge so acquired, is deemed a waiver by the company of any ground set up therein for avoiding liability based on facts so known to its agent; and this is so, although the policy contains a prohibition of the power of an agent to waive any condition thereof.
    In an action on a New York standard fire insurance policy, containing a provision prohibiting an agent from waiving any condition thereof, except in writing thereon, and a further provision that the policy, unless otherwise provided by agreement in writing, should be void if the interest of the insured was other than the unconditional sole ownership, or if personal property the subject of insurance should be incumbered by a chattel mortgage, it appeared that, at the time of the negotiation for the policy, the agent of the company was expressly informed of the existence of a bill of sale theretofore given by the insured on the stock ■of goods covered by the policy, and that upon the facts then disclosed the agent, 'being of the opinion that the bill of sale was invalid, issued the policy, and the ■jury having found that the bill of sale, though executed and filed, did not have ■any valid existence, even as between the parties thereto:

      Held, that a verdict in favor of the insured was proper.
    Motion by the defendant, tlie Continental Insurance Company, for a new trial on exceptions taken at the Genesee Circuit June 28, 1892, at which a verdict was rendered by the jury in favor of the plaintiff for $2,015.65, upon a policy of fire insurance issued by the defendant to the plaintiff in the sum of $2,300.

      Sa/nford JE. Worth, for the plaintiff.

      Myron H. JPeoh, Jr., for the defendant.
   Macomber, J.:

The defendant issued a policy of fire insurance to the plaintiff on the 23d day of April, 1891, in the sum of $2,300, covering his store, stock and fixtures in the town of Alabama, N. Y. As the result of a fire which occurred September 27, 1891, the loss sustained by the plaintiff was ascertained by the agent of the defendant to be the sum of $1,950. Subsequently, the defendant refused to pay the amount of the loss, claiming that there had been a forfeiture of the policy upon the ground that, contrary to the plantiff’s statement contained in the application, the plaintiff had, about two months before the policy was issued, given a bill of sale to his brother on the stock of goods and fixtures covered by the policy. Under proper evidence laid before them, the jury found that this bill of sale, though executed and filed, did not have any valid existence, even as between the parties thereto; and further, that at the time of the negotiation of the policy and the agreement between the plaintiff and,the defendant’s agent, the latter was expressly informed of its existence, and how it came to be given, and upon such facts the agent, being of the opinion that it had no valid, subsisting existence, issued the policy.

This policy is the one known as the standard fire insurance policy of the State of New York, prepared by the superintendent of insurance, in pursuance of chapter 488 of the Laws of 1886. It contained, among other things, the following provisions: “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, * * * if the interest of the insured be other than unconditional and sole ownership, * * * or if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage.” * * *

In any matter relating to this insurance no person, unless duly authorized in writing, shall be deemed the agent of this company.” * * * “ This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company' shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power, or be deemed or held to have waived such provisions or -conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under the policy exist or be claimed by the insured unless so written or attached.”

The question is not whether the plaintiff can avail himself of an unauthorized waiver, by the defendant’s agent, of any provision contained in the policy. It is, rather, whether the knowledge of’ the existence of the chattel mortgage, brought home to the company in this manner through its agent, who procured the policy, effects a, waiver of any ground set up for avoiding liability. Two recent cases in the Court of Appeals seem to have settled this question in favor of the contention made in behalf of the plaintiff, namely, Berry v. The American Central Insurance Company (132 N. Y., 49); Cross v. National Fire Insurance Company (Id., 133).

In the case of Berry v. American Central Insurance Company the agreement provided that the policy should be void, if, without notice to the company and permission therefor, in writing, indorsed thereon, the interest of the insured be less than the entire unconditional and sole ownership of the property insured. It also contained a prohibition against the power of an agent to waive any condition of the policy, together with the following : “No notice to, and no consent of, or agreement by any agent of this company, shall be binding on this company until such notice, consent or agreement, as the case may be, is clearly expressed and indorsed in writing hereon, signed by such agent.” Liability in that case was sought to be avoided by the company on the ground that the insured did not own the property covered by the policy, but was in possession of it only under a verbal agreement with his son, the true owner, to occupy fhe same during life, with an obligation on the part of the life tenant to keep the buildings insured. The defendant’s agents had knowledge of this fact when they issued the policy, and a recovery was sustained by the court upon the ground that the knowledge of the agent, obtained at the time of allowing the policy, was the knowledge of the company itself.

The case of Cross v. National Fire Insurance Company (supra) arose upon an allegation and proof that the building insured was unoccupied at the time of the issuance of the policy, contrary to the terms of the policy. But it being shown that the agent was aware of this fact at .the time of the application, and at the time the policy was issued, a recovery was had, notwithstanding the fact that the policy provided that the agent did not have power to waive any condition.

In both of these cases, it is true, the agent was the general agent of the insurance company. But this circumstance can make no. difference, because the ground upon which liability of the company is sustained is, that the knowledge which was imparted to the agent at the time of the application, and at the time that the policy was issued, was necessarily the knowledge of the corporation itself. (See, also, Van Schoick v. Niagara Fire Ins. Co., 68 N. Y., 434; Woodruff v. The Imperial Fire Ins. Co., 83 id., 134; Wood on Insurance, § 88, and cases there cited.)

The principal case relied upon by the learned counsel for the defendant is that of Quinlan v. Providence W. Insurance Company (133 N. Y., 356). This, however, was a case of a violation of a provision by the insured, occurring subsequently to the issuing of the policy. The policy contained a clause to the effect that the beginning of a foreclosure proceeding invalidated the policy, unless saved by agreement properly indorsed upon the policy. In that case, a mortgage, which was sought to be foreclosed, was not given until after the policy had been written, and the foreclosure was not begun until nearly two years afterwards; and the agent upon whose alleged knowledge the claim of waiver was made, had ceased to be the company’s agent before the beginning of the foreclosure proceedings. (So, also, of the case of Messelback v. Norman, 122 N. Y., 578.) The waiver there relied upon was not made at the time of the application for and the issuing of the policy, but afterwards. The policy bore date, June 9, 1883. The defense arose upon the provi-, sion of the policy against liability if the buildings became vacant.

The building insured was occupied until April IT, 1884, and was destroyed on the twenty-sixth day of that month. The waiver relied upon was one made by the agent April seventeenth.

These cases do not affect the general principle, as we understand it to exist, which is, that the knowledge by the agent of a fact communicated at or before the time of the issuing of the policy of fire insurance, inconsistent with the condition of the policy itself, is to be imputed to the company issuing thp policy; for, otherwise, it must be assumed, the insured would not have accepted such x>olicy.

It follows that the defendant’s motion for a new trial should be denied.

Dwight, P. J., and Lewis, J., concurred.

Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE A. BENTON, District Attorney of the County of Monroe, Respondent, v. THE COURT OF SESSIONS OF MONROE COUNTY Appellant.

      Suspension of sentence after conviction is improper.

    Under the criminal laws, now in force in this State, a court has no discretion, after conviction, to suspend judgment during the good behavior of the defendant. The effect of section 12 of the Penal Code, and of sections 471, 482 and 483 of the Code of Criminal Procedure, is to require the trial court, after a conviction upon a verdict of plea of guilty, to fix the punishment and pronounce judgment at a time to be named by it.
    The provision of the Code of Criminal Procedure, that judgment must be rendered if no sufficient cause be alleged why the court should not pronounce judgment, contemplates only such a cause as has a legal bearing upon the guilt of the accused, or such as may first be brought to the attention of the court after conviction, as, for instance, arresting judgment for the various causes stated in the Code, or an order granting a new trial.
    Appeal by the defendant, the Court of Sessions of Monroe County, from a final order of the Supreme Court made and entered at the Monroe Special Term, on the 6th day. of July, 1892, providing that a peremptory writ of mandamus issue out of the court, directed to the defendant, commanding that the defendant cause to be brought, before it the body of one John Attridge, and impose sentence upon him on his plea of guilty to an indictment for grand larceny in the second degree.

      H. B. Mallock, for the appellant.

      George A. Benton, for the respondent.
   Macomber, J.:

One John Attridge was indicted by the grand jury of the Monroe Oyer and Terminer, in January, 1892, for grand larceny in the second degree, in that, while in the employ of the firm of Brewster, Crittenden & Co., as salesman and collector, he wrongully appropriated to his own use the sum of $2,000 of the firm’s money. The case having been sent for trial to the Court of Sessions of Monroe county, the prisoner was arrainged and pleaded guilty to the indictment. Thereupon the county judge of Monroe county presiding at the Court of Sessions, pronounced judgment against the accused and sentenced him to confinement in the Elmira Reformatory until discharged by law. Thp court, however, was composed, in this instance, of! the county judge and two justices of Sessions. Both of the latter dissented from the sentence as pronounced by the presiding judge. The prisoner, having been remanded to the custody of the sheriff, was subsequently discharged upon a writ of habeas corpus issued by a justice of the Supreme Court, who decided that the sentence imposed by the county judge was not legal, because it was not by a majority of the court, and, for that reason, remanded the prisoner to the custody of the sheriff in order that the Court of Sessions might pronounce a legal sentence.

On the 14th day of March, 1892, the prisoner appeared again in the Court of Sessions when the district attorney renewed his motion that judgment be pronounced. The justices of sessions announced, as the decision of the majority of the court, that sentence would be suspended during the good behavior of the defendant. The county judge dissented.

There is no conflict in respect to the facts of this case. The justices of sessions appeared to have acted, in part at least, upon a petition signed by sixty-nine citizens of the city of Rochester, men of high character and representing nearly all professions and businesses, requesting that sentence of the accused be suspended, for the reason that he had made restitution to his employers of all the moneys embezzled by him, and that, in the judgment of the petitioners, an opportunity should be given to him to lead a better life without the disgrace of confinement and punishment in a penal institution.

Though the accused, after being discovered in his embezzlements, had departed the State, he voluntarily returned into the State and the jurisdiction of its courts, but after proceedings had been instituted for his extradition. It is claimed for him, however, that, having become penitent, he had determined to return and give himself up to justice of his own motion.

The accused is a young man of twenty-two years of age, having a wife and child to support, and was of previous good character. These and other circumstances stated in the petition to the court, as well as matters doubtless within the knowledge of a majority of the court, appealed strongly for leniency, in this particular instance, with a view of enabling this young man, during a course of good behavior, to redeem his character, as far as possible, from the stain placed upon it. There are, probably, not many judges of experience who have not, under like circumstances, and in the like hope of redeeming youth fiom criminal ways, assumed the existence, in the criminal courts, of this prerogative, and have suspended judgment after conviction, and who have witnessed flowing therefrom no evil, but good alone. Our observation leads us to believe that, assuming such discretionary power to exist, there has not been, in general practice, such an abuse of it as to call for rebuke or animadversion. The case of the accused appeals strongly for the exercise of such discretionary power.

If such power existed under our criminal laws, the order appealed from should be reversed and the prisoner allowed to go upon his own recognizance, until such time as he should violate the conditions imposed upon him. But we are constrained to say, that our criminal laws permit of the exercise of no such discretion. Section 12 of the Penal Code, is as follows: “ The several sections of this Code, which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed.”

Section 471 of the Code of Criminal Procedure, provides: “After a plea or verdict of guilty, or after a verdict against the defend' ant on a plea of a former conviction or acquittal, if the judgment be not arrested or a new tria) granted, the court must appoint a time for pronouncing judgment.” And section 482 provides: If no sufficient cause be alleged or appear to the court why judgment should not be pronounced, it must thereupon be rendered.”

Section 488 of the Code of Criminal Procedure provides that “where a discretion is conferred upon the court as to the extent of the punishment,” it may hear, in a summary way, facts in aggrava* tion or mitigation of the punishment.

These provisions of the Codes require the criminal courts, after a conviction of the accused person upon a verdict, or upon a plea of guilty, to fix and prescribe the punishment, and pronounce judgment at a time to be named by the court.

Section 482 of the Code of Criminal Procedure above quoted, does not contemplate a case where “ no sufficient cause can be alleged ” why the court should not pronounce judgment, except such cause or causes as have a legal bearing upon the guilt of the accused, or such as may first bo brought to the attention of the court after such conviction; as, for instance, arresting the judgment for the various causes stated in the Code, or an order granting a new trial. It is not sufficient cause to show, as was done in this instance, that the prisoner had borne a good character before this accusation was made against him; that he was sorry for his offense, and had made money restitution, or that his punishment would be a sore affliction to himself and to the members of his family; these things commonly attend the conviction of all persons for crimes.

We are unable to find anything in the criminal laws of this State permitting the criminal courts thus to exercise a quasi power of pardon after conviction.

It follows, therefore, that the order directing a peremptory writ of mandamus to issue, directing the Court of Sessions of Monroe county to bring before it John Attridge and to pronounce judgment against him, should be affirmed.

Dwi&ht, P. J., and Lewis, J. concurred.

Order appealed from affirmed and a peremtory writ of mandamus directed to be issued.


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    JACOB KOONS and Others, Respondents, v. ANDREW N. MARTIN Appellant.

      Limited liability companies — liability of stockholders — contribution among stock-hold&rs must be enfoi'ced in equity— County Court without jurisdiction.

    The right of one stockholder in a limited liability company, organized under chapter 611 of the Laws of 1875, who has paid, either under compulsion by process of law or voluntarily, a judgment against the company, to recover against a co-stockholder, jointly liable with the other stockholders of the company under section 37 of the act, can be enforced only through an equitable action for contribution; and of such action a County Court has no jurisdiction.
    Where certain stockholders in such a limited liability company take an assignment of a judgment against the company, recovered by a third party while such assignees were stockholders, and for which they are, under the statute, jointly indebted with other stockholders, they cannot maintain, in a County Court, an action at law against a co-stockholder to recover absolutely of such stockholder, as such, a sum equal to the whole amount of his stock, to apply on such judgment, as the defendant cannot bring into the action in that court other stockholders equally liable with himself and compel contribution among all of them, including the plaintiff.
    Appeal by tbe defendant Andrew N. Martin from a judgment of the County Court of Monroe county, in favor of the plaintiff and against said Martin for $500 and costs, entered on the 20th day of May, 1892, on the decision of the county judge, sitting without a jury.
    Section 3Y of chapter 611 of Laws of 1815, entitled “An act to provide for the organization and regulation of certain business corporations,” contains the following provisions : “ In limited liability companies, all the stockholders shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them, respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company has been paid in, and a certificate thereof has been made and recorded, as hereinafter prescribed. * * * No execution shall issue against any stockholder, individually, until execution has been issued against the corporation and returned unsatisfied; and whenever a judgment shall be recovered against a stockholder, individually, all the stockholders shall contribute a proportionate share of the amount paid by such stockholder on such judgment, proportioned to the number of shares of stock owned by each of such stockholders, and such stockholder shall have a right of action against the other stockholders in such corporation; jointly or severally, to recover from them, and each of them, the proportion due by them, and each of them, of the amount so paid on such judgment.”

      John J. Snell, for the appellant.

      M. H. MeMath, for the respondent.
   Macomber, J.:

On the 3d day of May, 1890, a judgment was recovered against the "Webster Preserving Company (Limited), a corporation organ-' ized under the laws of the State of New York, and succeeding, by name, the Curtice Preserving Company (Limited), upon two promissory notes, bearing date the 1st day of September, 1888, one of them in the sum of $1,000, and the other in the sum of $500. Executions against the corporation having been returned unsatisfied, this action was begun against the defendant on the 9th day of April, 1891, charging him with liability to the extent of $500, being the amount of the shares of the capital stock of the corporation held by him, being five shares at the par value of $100 each.

The learned trial judge has found that the defendant was such stockholder in the amount named, from the 16th day of November, 1886, to the 11th day of April, 1889, and that he was a stockholder of such corporation within two years before the beginning of this action. The facts disclosed by the evidence clearly sustain this conclusion.

The plaintiffs are assignees, by an instrument in writing, of the judgment so recovered by Fred D. Bancroft. It appears, however, that they were, at all of the times covered by the dealings of Bancroft with the corporation, down to the beginning of this action, themselves stockholders of that corporation, and, during a portion of the time, officers thereof. The question is, therefore, whether they can maintain this action in the County Court.

It is properly assumed on both sides, that the County Court has not jurisdiction of an action for contribution from stockholders under chapter 611 of the Laws of 1875, in pursuance of which this corporation was organized. For the purpose of such contribution by all of the stockholders to one or more who have compulsorily paid debts that the whole number should have paid, the stockholders must be deemed substantially to be copartners. (Corning v. McCullough, 1 N. Y., 47; Clark v. Myers, 11 Hun, 608.)

The plaintiffs, therefore, were jointly indebted with the other stockholders of the concern for the whole amount of the judgment obtained by Bancroft. It matters not, for the purpose of fixing their rights, whether they were compelled by process of law to pay the Bancroft judgment, or whether they voluntarily paid the same. So long as they appear to be stockholders of the corporation their rights to recover against a co-stockholder can be worked out only-through an equitable action for contribution. But this action is purely one at law. It is to recover absolutely of the defendant, as a stockholder, the whole amount of the face of his stock at par. Each one of the plaintiffs is liable for contribution in proportion to the stock held by him for this very claim now made by them against this defendant. The defendant had the right to take the position at the trial which he did, that the County Court had not jurisdiction of this action, because he could not bring into the case other stockholders equally liable with himself, and compel contribution among all of them, including the plaintiffs. Any other view would lead to the anomalous conclusion of permitting a recovery at law in this action of the whole sum of $500, with liability on the part of the plaintiffs to this defendant to pay back the same, or a portion thereof, in a suit for contribution.

For this reason the complaint should, we think, have been dismissed at the trial.

Dwight, P. J., and Lewis, J., concurred.

Judgment of the County Court of Monroe county appealed from reversed and new trial granted, with costs to abide the event.


author: Macombeb, J. :

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    JOSEPHINE MOSCHELL, Respondent, v. FRANCIS BOOR, Appellant.

      Order appointing a receiver in supplementary proceedings not appealable — Oode of Civil Procedure, sec. 2433.
    An order, made by a county judge, appointing a receiver of a debtor’s property, in proceedings supplementary to an execution issued out of the Supreme Court, is reviewable only under subdivision 1 of section 2433 of tlie Code of Civil Procedure, which provides for the vacation or modification of an order made in such proceeding's by the judge who made it, or, upon motion, by the court out of which the execution issued.
    Sections 1347 and 1348 of the Code of Civil Procedure refer to orders made in actions as distinguished from special proceedings.
    Appeal by tbe defendant, Erancis Boor, from an order of the county judge of Monroe county, entered in the- Monroe county clerk’s office August 22, 1892, appointing a receiver of the defendant’s property in proceedings supplementary to execution.

      John B. Fanning, for the appellant.

      Q. Van Voorhis, for the respondent.
   Macombeb, J. :

On the 4th day of December, 1891, the plaintiff recovered a judgment in the Supreme Court against the defendant for the sum of $10,060.21, upon which-an execution was issued and subsequently returned unsatisfied; and thereupon proceedings supplementary to execution were instituted in behalf of the judgment-creditor against the debtor before the county judge of Monroe county. A reference was ordered, and upon the coming in of the evidence taken before the referee, the county judge appointed a receiver of the defendant’s property, and from that order this appeal is taken.

We think that this order is not appealable. Section 2433 of the Code of Civil Procedure declares: “ Each of those remedies is a special proceeding. But an order, made in the course thereof, can be reviewed only as follows :

“ 1. An order, made by a judge out of court, may be vacated or modified by the judge who made it, as if it was made in an action;' or it, or the order of the judge vacating or modifying it, may be vacated or modified, upon motion, by tbe court out of which the execution was issued.”

The appellant’s counsel calls attention to sections 1347 and 1348 of this Code to be considered in connection with section 2433. But sections 1347 and 1348 refer to orders made in actions as distinct from special proceedings. Proceedings supplementary to execution are, by the Code, declared to be special proceedings.

The case of People ex rel. Grant v. Warner (51 Hun, 58) arose upon a proceeding to punish a witness for contempt for not appearing before the referee in supplementary proceedings, but proceedings for contempt are themselves special proceedings, independent of the action or special proceeding in which they may be taken, and an order made therein cannot be regarded as an order made in the course of the original proceedings.

The appointment of a receiver of a debtor’s property in proceedings supplementary to execution is, on the other hand, an order made in the course of such proceedings, and, consequently, is reviewable only under section 2433 of this Code.

It follows that the appeal should be dismissed.

Dwight, P. J., and Lewis, J., concurred.

Appeal dismissed, with ten dollars costs and disbursements.


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    In the Matter of Proving the Alleged Will of JOSHUA RAPPLEE, Deceased.

      Duty of the appellate court to order a jury trial on the reversal of a surrogate’s decree — what evidence is insufficient to raise a question of fact — evidence as to mental capacity.

    Section 3588 of tlie Code of Civil Procedure, which requires the appellate court, on the reversal or modification, upon a question of fact, of a surrogate’s decree upon the prohate, or revocation of probate, of a will to direct the trial by a jury of a material question of fact arising upon the issues between the parties, does not require the court to order such a trial when the evidence appearing upon the record of the appeal is insufficient to raise a question of fact within the legal meaning of that term.
    Hence if, on appeal to the General Term from a decree of a surrogate revoking the probate of a will on the ground of want of testamentary mental capacity in the testator, it appears that there was no evidence before the surrogate in behalf of the contestant which, standing alone, was sufficient to defeat the probate, the General Term is not required to order a jury trial, but it is its duty to regard such failure of evidence as raising a question of law and, consequently, to reverse the decree revoking the probate and confirm the original decree admitting the will to probate.
    An expression of opinion by a witness, on the question of the mental capacity of a testator, that a certain act is irrational and indicates unsoundness of mind, is no evidence of unsoundness of mind, facts must be given from which it maybe judicially determined that the unsoundness of mind exists before the legal presumption of sanity and of disposing mind can be overcome.
    In the absence of evidence of a want of legal capacity on the part of a testator, at or near the tJme when a will is made, no case is made out by a contestant of its probate.
    Appeal by George Rapplee, one of the executors of tbe last will -of Joshua Rapplee, deceased, and by Erastus Rapplee and others, infants, and by J. P. Parkhurst, special guardian, from a decree of -the surrogate of Tates county, dated and entered February 19,1892, revoking the probate of the last will and testament of Joshua Rapplee, which had been duly admitted to probate October 1, 1888.

      J. F. Farhhursi and William S. Briggs, for the appellants.

      John Gillette, for the contestants, respondents.
   Macomber, J.:

Joshua Rapplee, of the town of Barrington, in the county of Tates, died August 31, 1888, leaving a last will which bears date ■September 20, 1886. This will was admitted to probate, by the .surrogate of Yates county, on the 1st day of October, 1888, as a will of both real and personal property. Within one year after ;such probate, namely, on the 16th day of September, 1889, two of the children and next of kin and heirs-at-law of the testator, ■Celestia Wallington and Jane Arwine, filed a petition with the surrogate praying for revocation of the probate of the will upon the ground that the testator was not, at the time of making and subscribing the will, of sound mind and memory, and was incapable of executing the same. TJpon the return of citations duly issued to .all parties interested in the controversy, much evidence was taken, the result of which was that the surrogate made his decree, which was entered on February 19,1892, revoking the probate of this will upon the ground stated in the petition, namely, that the decedent was incapable ot making a will at the time of the execution of the paper theretofore admitted to probate. From that decree this appeal is taken by one of the executors named in the will, and by sundry of the next of kin of the deceased.

The appeal is taken both upon the law and the facts. But there is no'controversy in respect to the formal execution of the will by the testator, nor of the legality and sufficiency of the provisions therein contained. The only question is, whether the testator was possessed of a disposing mind and memory at the time he executed this will.

Under section 2588 of the Code of Civil Procedure, if we come to a conclusion upon this question of fact, contrary to that of the surrogate, the order following our decision would be for a trial by jury of the material questions of fact arising upon the issues-between the parties. But this section of the Code does not require us to order, such a trial when the evidence, appearing upon the record of the appeal, is insufficient to raise a question of fact within the legal meaning of that term. This matter has been the subject of former judicial inquiry; and the decision of the Court of Appeals, in the Matter of the Will of Hunt (110 N. Y., 278), is authority for holding that this provision of the statutes is not peremptory in case of a reversal of the surrogate upon the question of the testamentary capacity of the testator. The court there say : “ The language in this section requires an order for a jury trial only where the reversal is ' founded upon a question of fact,’ and the _ legislature' undoubtedly intended that only where such was actually the case, and there was a real conflict of evidence, and the Surrogate’s Court and the Supreme Court differed on the case, should the conflict be settled by a jury trial in the mode prescribed; but that a new trial before a jury should be deemed necessary, when there is no conflict in the facts, and the matter is one of the conclusions from the facts, is not a construction reconcilable with reason, and we should refuse our sanction to such a construction.” (See, also, the cases cited in that opinion.)

If there was no evidence before the surrogate in behalf of the contestants of the will which, standing alone, was sufficient to-defeat the probate of the will, it is our duty, we think, to regard such failure of evidence as raising a question of law, and that, consequently, the decree revoking the probate should be reversed and the original decree admitting the will to probate confirmed. We have looked into the details of the evidence adduced in behalf of the contestants of the will, and have made an abstract of them; but even this abstract would occupy too much space to be set forth at, large. Of the sixteen witnesses who were examined in behalf of the contestants, not one of them gave any facts which had a. tendency to prove that the testator had not a disposing mind at the time of making the will; though all, or nearly all, of them, after-describing the conduct of the testator, at different periods during; two or three years preceding his death, testified that such conduct impressed them as being irrational. But an expression of opinion by a witness that a certain act is irrational and indicates unsoundness of mind is no evidence of unsoundness of mind. Facts must, be given from which it may be judicially determined that the: unsoundness of mind exists, before the legal presumption of sanity and of disposing mind can be overcome. There is, among all these witnesses, a concurrence of statement that the testator was a very vigorous man for his age, and was very active in directions rarely attempted by old men, such as speeding the favorite fast horses which he owned, and in hooking up and driving unbroken colts. He is shown by them to have been at this time a man of strong-will, and one who managed his farm unaided, except by hired help.. His comprehension of the nature and extent of his property, and. his ability to manage it properly is not seriously brought into-question. But it was shown that he at times had epileptic fits, and after such a seizure he became, for two or three days, weak in mind as well as in body, so that he failed, at such times, to recognize his son-in-law and others. But when he recovered from such attacks his mind again became clear and strong, and he would resume his usual avocations. The will in question was made by him two weeks after one of these epileptic convulsions, and when no fact or circumstance is shown to exist bringing into doubt his ability to make a will. "Without evidence of his want of capacity, at that time, or at a time near it,’no case can be said to have been made-out by the contestants. It is not disputed but that the testator went voluntarily, and at his own suggestion, to the county seat of Tates county, there to have prepared and executed his last will, and that he gave particular instructions in regard to the disposition which he desired to be made of his estate. One of the subscribing witnesses, Mr. Beilis, a lawyer, had previously drawn two wills for the testator, and the changes which were made in the subsequent wills were such that would naturally follow the changed condition of his affairs, and were in each instance reasonable, and showed a teen foresight. For instance, in the first will the testator provided for a legacy to his grandson, Byron Walling. But by the second will he revoked this bequest, for the reason, which was assigned by himself, of the “ careless and reckless manner of living ” of the former object of his bounty. The reasonableness of this change is not even attempted to be disputed in the case before us. The new provision contained in the will probated, and which constitutes the only difference between it and the second will, is the following provision: “ In case either of the children of Mary E. Rapplee, Clista and Ann Rapplee, shall die before their father, without leaving any issue them surviving, then, and in that case, I hereby give and bequeath the portion of said child so dying, as aforesaid, to the brothers and sisters of the child so dying as aforesaid, and not to the father, Hiram Rapplee, aud Erastus Rapplee.” The origin of these changes was with the decedent himself, and not with the scrivenez’, and that they were reasonable and just, under all the circumstances, can admit of no doubt, for Hiram Rapplee and Erastus Rapplee were insolvent and owed many debts.

We az-e of the opinion that the evidence adduced in behalf of the petitioners for the revocation of the letters testamentary was insufizciezzt, standing alone, to overeóme the evidence of the subscribing witnesses, and the deductions to be made from the undisputed facts relating to the execution of this will. There is, therefore, no question of fact before us, but it is a case of failure of proof, and thus, under the decision already cited, render’s it unnecessary to order a tz’ial by jury.

It follows that the decree appealed from should be reversed.

Dwight, P. J., and Lewis, J., concurred.

Decree of the surrogate of Tates county appealed from reversed, with costs and the probate of the will confirmed.


author: Dwight, P. J.:

text:
    JOHANNA LANE, Respondent, v. PETER A. YOUNG and Another, Appellants.

      Justices’ Court — question of title in an action for rent, where the plaintiff claims as heir of a deceased lessor and the lessee denies that the lessor was the owner.

    Although a lessee in possession is estopped from denying his lessor’s title at tlie time of tlie letting, lie may show, as a defense to an action for rent by one claiming as heir of the deceased lessor, that the lessor’s title expired after the lessee’s entry into possession under the lease, and that, consequently, the plaintiff took no title, as heir, at the lessor’s death.
    Hence where, in an action in a Justice’s Court for rent, the plaintiff alleges in his complaint and gives evidence showing that he is the heir of the deceased lessor, and that the lessor was owner of the premises at the time of his death, and the defendant thereupon gives notice that he disputes the fact that the lessor was owner at the time of his death, the title to real estate comes in question upon the plaintiff’s own showing, and it is, consequently, under section 2956 of the Code of Civil Procedure, the duty of the justice to dismiss the complaint and render judgment against the plaintiff.
    This is so, although the plaintiff also alleges attornment to himself, and might have been able to make out a case under such allegation, but chooses to proceed before the justice under the other allegation of his complaint, and gives evidence tending to prove that he has succeeded to' the title, as heir of the ofiginal lessor, the defendant being entitled to try that question, if at all, before a court having jurisdiction thereof.
    Appeal by defendants, Peter A. Young and William E. Clancy, from a judgment of tbe County Court of Cattaraugus county, entered in tbe office of tbe clerk of tbat county on tbe 14th day of July, 1892, reversing a judgment, in favor of tbe defendants, of a justice of tbe peace of tbe town of dean.

      M. B. Jewell, for tbe appellants

      U. Donnelly, for tbe respondent.
   Dwight, P. J.:

Tbe action was for rent. Issue was joined in tbe Justice’s Court by written pleadings. Tbe complaint alleged tbat one John S. Lane, in bis lifetime, rented tbe premises to tbe defendants at a monthly rental which they agreed to pay in advance on tbe first day of each month from August 1, 1889; that on the 3d day of November, 1889, tbe lessor died intestate, leaving tbe plaintiff bis only heir-at-law ; that, since his death, the defendants had paid the rent accruing to the plaintiff, except the balance due, for which this action was brought. The answer was a general denial and a plea of payment.

On the trial the plaintiff produced one Cornelius Lane as a witness, who testified that the deceased, John S. Lane, was a son of the plaintiff; that he died November 3, 1889, leaving no wife or children; that, since his death, the witness had collected the rent from the defendants for the plaintiff; and, under the defendants’ objection, that John S. Lane was the owner of the premises at the time of his death. At this point the defendants gave notice that they disputed that John S. Lane was the owner of the premises at the time of his death, and thereupon moved that the complaint be dismissed on the ground that the title to real property was in question on the plaintiff’s own showing, and that the title was disputed by the defendants. The justice granted the motion, the complaint was dismissed, and judgment was entered accordingly, from which the plaintiff appealed to the County Court. That court reversed the judgment of the justice, and from its judgment this appeal was taken.

We think the complaint was properly dismissed, and that the reversal of the judgment of the justice was error. The complaint made a case in which the defendants were estopped to deny the title of the deceased, John S. Lane, at the time of the letting, and in which — that title being presumed to continue until the contrary was shown — the plaintiff had succeeded thereto by descent. The complaint also contained allegations to the effect that the defendants had attorned to her, and were thus estopped to deny her own title. Both of thesp allegations were denied by the answer, and the plaintiff might recover upon establishing either.

Under the former of the two allegations, viz., that the plaintiff has succeeded to the title of her deceased son, it was necessary that it should appear, either by direct proof or by implication, thai title was in the son at the time of his death; and this it was which the defendants proposed to dispute ; and this they were entitled to dispute. They admitted the title of their lessor, at the time, by entering into possession under a lease from him, and they are estopped to deny what they have thus admitted. But the estoppel goes no further. (Jackson v. Rowland, 6 Wend., 670; Despard v. Walbridge, 15 N. Y., 374; Hilbourn v. Fogg, 99 Mass., 11.) In the. first of these cases the court says : “ A tenant cannot dispute the title of the landlord so long as it remains as it was at the time the tenancy commenced, but he may show that the title under which he entered has expired or been extinguished.” In the Massachusetts case the court, in an opinion by Justice Gray, says: “ The well-settled rule of law by which a tenant, -who has entered into possession under an oral lease, is estopped, so long as he continues in possession under the lease, to deny the lessor’s title at the time of making the lease, as against the lessor, his heirs and assigns, is founded •on the injustice of allowing a person who has obtained possession by admitting the title of another to deny that title, and, in case of failure in proof of it to hold the premises himself. The rule * * * .applies in every form of action by which the lessor may seek to assert the rights reserved or promised to him in his lease. But it is equally well settled that the tenant is not estopped to deny that since his •own entry into possession his lessor’s title has expired, either by its •own limitation, by the act of the lessor or by eviction by title paramount, and that when the estoppel is set up by one claiming as assignee of the lessor the tenant may show that such assignment was ineffectual'to pass the lessors’s title.” To this proposition Judge Gray cites, among other authorities, the case of Despard v. Walbridge (supra).

In that case Judge Selden quotes the language of the court (as .above) in Jackson v. Rowland, and himself states the rule limiting the estoppel in the words “ the tenant can be estopped from denying only what he has once admitted.

The defendants in this case, therefore, were not estopped to deny that the title of their lessor, which they admitted when they entered into possession under a lease from him, either expired by its own ^imitation, if it was a limited title, or was alienated by himself, or extinguished under a paramount title, in his lifetime, and after their entry as lessees; in either of which eases the plaintiff would take no title, as heir, at his death. For the defendants to dispute the title of the lessor at the time of his death was only a mode of disputing the title of the plaintiff at the time of the commencement of the action, which was within the issues joined by the pleadings.

The case seems, therefore, to have been brought distinctly within, the provisions of section 2956 of the Code of Civil Procedure, viz., where it appeared, from the plaintiffs own showing on the trial, that the title to real estate was in question, and the title was disputed by the defendants. Such being the case, it was the duty of the justice to dismiss the complaint as he did, and render judgment against the plaintiff accordingly.

The fact that, possibly, the plaintiff might have made a case under her allegation of attornment to herself by the defendants, did not change the duty of the justice. The plaintiff chose to proceed under the other allegations of her complaint, and give evidence tending to-show that she had succeeded to the title as heir of her son, and the defendants had a right to try that question, if at all, before a court having jurisdiction.

The judgment of the County Court should be reversed, and that of the justice affirmed.

Macomber and Lewis, JJ., concurred.

Judgment of the County Court of Cattaragus county appealed from reversed, and that of the justice of the peace affirmed, with costs in this court and in the County Court.


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    JACOB KOEHLER, Respondent, v. THE ROCHESTER AND LAKE ONTARIO RAILWAY COMPANY, Appellant.

      Injury at a rail/road crossing to a passenger in a vehicle — noise made by those in the vehicle — contributory negligence.

    It is the duty of a passenger, in a vehicle approaching a railroad crossing, who is familiar with the situation and its dangers; knows that it is near the time for a train to pass; that, if approaching, it cannot be seen, and that the only safeguard is the sense of hearing, to refuse to go upon the crossing in a noise, made by the singing and shouting of those in the vehicle, which prevents the exercise of the faculty of hearing.
    Under such circumstances it is negligence for a passenger in the vehicle to go upon the track in such a noise as prevents an approaching train being heard, without regard to whether he himself is making, or helping to make, the noise; and if his warnings and expostulations have no effect upon the driver of the vehicle, it is the passenger’s duty to look out for his own personal safety, and to escape, if he reasonably can, from an environment so dangerous to himself.

      Appeal by the defendant, the Rochester and Lake Ontario Railway Company, from a judgment of the Supreme Court in favor of' the plaintiff, entered on the verdict of a jury for $12,500 at the Monroe Circuit, January 13, 1892, and from an order denying the defendant’s motion for a new trial, made on the minutes of the court,, entered in said clerk’s office on the 11th day of April, 1892, in an action brought to recover the damages resulting from a personal injury.

      O. O. Davy, for the appellant.

      Thomas Raines, for the respondent.
   Dwight, P. J.:

The plaintiff was hired as a musician to accompany a pleasure party from Rochester to Irondequoit bay, on a Sunday morning in August, 1892. There were twenty-eight of the party, and they went and returned in a hired carry-all, driven by the owner. On their return, in the evening, they came into the city by Jennings street, and it was just about nine o’clock when they reached the intersection of Jennings street with North avenue, on the east side of which was the track of the defendant’s road. At this crossing the carry-all was struck by a locomotive engine of the defendant, drawing a train from the north, and the plaintiff was badly injured.

Ther'e was evidence strongly tending to show that, as the carriage approached the crossing, and up to the moment of the collision, the company was engaged in hilarious singing and shouting, which must probably have prevented any effective listening for an approaching train. This evidence was given by some eight or ten persons who were near the corners of the two streets, either on the sidewalks or on the piazzas, or in open windows of neighboring houses. Several of them testify that the loud noise of singing and shouting continued up to the moment when the crash of the collision and the screams of terror were heard. This evidence was, to some extent, contradicted by some members of the party in the carriage, but if the fact was a material one, the evidence was clearly such as to require the submission of the question to the jury.

The plaintiff’s own testimony showed that he was familiar with the crossing and its surroundings, and with the running of trains at that point. He knew that an orchard, with . thick foliage, and a building in the angle between Jennings street and North avenue, completely obstructed the vision of the driver in the direction from which the train approached, until his horses heads were actually upon the track of the railroad. He knew that a train was due at that crossing only, a very few minutes, if at all, before the arrival of his party there. He had looked at his watch under an electric light about five hundred feet from the crossing, and found the time to be “ nine o’clock, or a little before,” and he knew that the train was due at the North street station at five minutes before nine.

Such being the case, counsel for the defendant, at the proper time, requested the court to charge “ that, if the plaintiff and his companions in the carry-all approached this railroad with music and singing, and that thereby they were prevented, or he was prevented, from hearing the bell of the train, if it was rung, he was guilty of contributory negligence, and cannot recover.”

The court declined to vary the charge already given in this respect, and counsel for defendant excepted. But the court thereupon proceeded to instruct the jury further in this particular, and to the effect' that, only so far as the plaintiff concurred in making the noise, and was a party to it and helped it along, could he be charged with carelessness in going upon the crossing with such a noise about him. This was not what the court was requested to charge, but, rather, was calculated, we think, to convey an impression contrary to the purpose of the request. The proposition, which, we think, was fairly presented by the request, was, that it was negligence in the plaintiff to go upon the track with the din of noise in his ears which prevented him from hearing the sound of the approaching train ; and this without regard to whether lie was making or helping to make the noise. "We think the proposition- was a correct one; that it was the duty of the plaintiff — familiar as he was with the situation and its dangers, knowing that the train, if approaching, could not be seen, and that the only safeguard was the sense of hearing — to refuse to go upon the crossing in a noise which prevented the exercise of that faculty. If his warnings and expostulations had no effect upon the driver or the company, it was his duty to look out for his personal safety and escape, if he reasonably might, from an environment so fraught with danger to himself. And this, it would seem, he could easily have done, because, as he testifies, the horses were going at a walk, and he was seated immediately at the door in the rear end of the vehicle; in the last seat on the south side, next the top of the steps by which passengers alighted.

We think the defendant is entitled to an instruction to the jury, substantially, to the effect that, if the plaintiff permitted himself, under the circumstances of this ease, to be carried upon that crossing in a noise of singing and shouting, which prevented him from exercising his sense of hearing to discover the approach of the train,, he was guilty of negligence which contributed to produce the casualty of which he complains, whether he was engaged in making the noise or not.

The judgment and order denying the motion for a new trial should he reversed.

Macombek and Lewis, JJ., concurred.

Judgmen and oruer appealed from reversed and a new trial granted, with costs to abide the event.