author: MartiN, J.: Hardin, P. J.

text:
    WILLIAM M. PECK, Respondent, v. ALVA M. BALDWIN, Apellant.

      Supplementary proceedings — fhe order for the examination of the debtor must be made returnable before one of the officers mentioned in section 2434 of the Code of Civil Procedme.

    In supplementary proceedings, instituted before a justice of the Supreme Court upon a judgment recovered in that court, where the execution has been issued out of the Supreme Court, the order for the examination of the judgment-debtor must be made returnable before a justice of the Supreme Court residing in the judicial district embracing the county to which the execution has been issued, or before the county judge, or a special county judge, or special surrogate of that county, or of an adjoining county.
    The provisions of section 2434 of the Code of Civil Procedure, in this respect, are applicable to a proceeding instituted before a justice of the Supreme Court, where the execution has been issued out of that court, and are not confined in their operation to proceedings instituted before such a justice where an execution has been issued out of another court. (Hardin, P. J., dissenting.)
    Appeal by the defendant Alva M. Baldwin from an order made at a Special Term of the Supreme Court, held at the village of Watkins, in the county of Schuyler, on the 17th day of June, 1890, and entered in the Tompkins county clerk’s office on the 7th day of July, 1890, which order denied a motion to set aside the order in supplementary proceedings, and the order appointing a receiver, theretofore granted in the action.
    The judgment against the defendant upon which these proceedings were based was in the Supreme Court, and was entered in the office of the clerk of Tompkins county of which county the defendant was a resident. Execution was issued upon such judgment to the shei'iff of that county and no other. Upon the return of the execution unsatisfied, the respondent applied to Hon. Geoege N. Kennedy, a justice of the Supreme Court, residing in the fifth judicial district, for an order in supplementary proceedings to examine the defendant as such judgment-debtor. The order was granted, but contained no provision making it returnable before a justice of the Supreme Court residing in the sixth judicial district, or the county judge or special county judge or special surrogate of Tompkins county, or of any adjoining county. The county of Tompkins is embraced within the sixth judicial district.

      A referee was appointed by such order to examine the appellant. Upon tbe bearing before the referee the appellant objected to the proceedings on the ground that they did not require the subsequent proceedings to be had before a justice of the Supreme Court in the district in which the appellant resided. Subsequently an application was made before Judge KeNNEdy for the appointment of a receiver, upon which application the appellant appeared and objected to the granting of such order upon the ground that the order for an examination of the defendant was irregular, in that it was granted by a justice of the Supreme Court of the fifth judicial district, while the defendant resided in the sixth, and the order required the subsequent proceedings to be had before a justice of the fifth judicial district, when it should have required them to have been had before a justice of the sixth judicial district, where the defendant resided. These objections were overruled, and Mr. Justice KeNNEdy made an order appointing a receiver of the defendant’s property.
    From that order an appeal was taken to the General Term, where the appeal was dismissed on the ground that an appeal could not be taken to the General Term from such an order, that the appellant’s remedy was by motion at Special Term to vacate the same. Subsequently the appellant made a motion at the Schuyler Special Term to vacate the orders referred to, which motion was denied, and from the order denying that motion this appeal was taken.

      M. J5T. Tompkms, for the appellant.

      Geylon li. Lewis, for the respondent.
   MartiN, J.:

Section 2434 of the Code of Civil Procedure, so far as it is applicable to the question involved on this appeal, in effect provides that either of the special proceedings mentioned in section 2432 may be instituted before a judge of the court out of which the execution issued, which includes a justice of the Supreme Court, where the execution was issued out of that court. (Baldwin v. Perry, 25 Hun, 72.) It then provides that where the execution is issued out of a court other than the Supreme Court, and the judges thereof are absent or disqualified, such special proceedings may be instituted before a justice of the Supreme Court. Then follows this provision: “ In that case if he does not reside within the judicial district embracing the county to which the exe.cution was issued, the order made * * * by him must be returnable to a justice of the Supreme Court residing in that district, or the county judge or the special county judge or special surrogate of that or an adjoining county, as directed in the order.”

The question presented is, whether the provisions contained in the last sentence of that section are applicable to a proceeding instituted before a justice of the Supreme Court where the execution has been issued out of that court, or whether it is confined in its operation to proceedings instituted before such a justice where an execution has been issued out of another court. An exact and literal reading of the section might, perhaps, seem to indicate that this provision was limited in its application to the latter case, but was such the intent of the legislature ?

It is one of the rules of construction applicable to statutes that the intent of the legislature is to be sought for, and when discovered is to prevail over the literal meaning of the words of any part of a law. This intent is to be found not only by considering the words of any part, but by ascertaining the general purposes of the whole. The exact and literal wording of an act may sometimes be rejected if, upon a survey of the whole act and the purpose to be accomplished, or the wrong to be remedied, it is plain that such exact and literal rendering of the words would not carry out the legislative intent. (People ex rel. Jackson v. Potter, 47 N. Y., 375; Bell v. Mayor, etc., 105 id., 144; Delafield v. Brady, 108 id., 529; People ex rel. Killeen v. Angle, 109 id., 568.)

In seeking the intent of the legislature in passing this statute we are led to inquire what object or purpose was to be accomplished or what wrong was to be remedied by its enactment. A history of the legislation upon this subject discloses'that anterior to the amendment of section 292 of the Code of Procedure, which was passed in 1867, there was no express provision requiring an order in supplementary proceedings, made by a justice of the Supreme Court, to direct the subsequent proceedings to be had before a justice of the district where the judgment-debtor resided or had a place of business. At that time, however, as now, the examination of the debtor was required to be had in the county where he resided. , That was so before the Code of Procedure (Bank of Monroe v. Keeler, 9 Paige, 249), and also under the Code of Procedure, except during the years 1849 and 1850. But in 1867 the Code was amended by requiring the proceedings subsequent to the order for the examination of a judgment-debtor to be had in the judicial district where he resided.

The manifest purpose of this amendment was to prevent the judgment-creditor from compelling the debtor to attend the subsequent proceedings in a portion of the State remote from his residence or not appear. This was both reasonable and just. It certainly is unjust, and in many cases would be oppressive to compel a judgment-debtor to attend such proceedings at a place distant from his residence or place of business while, enjoined from using any money or property, he may have to pay his expenses or to pay an attorney for his services in appearing for him. The object and purpose of this amendment was to provide a remedy against such a course of procedure.

The law, as thus amended, remained in force until after the Code of Civil Procedure went into operation. Section 2434 of the Code of Civil Procedure was intended as a re-enactment of that portion of section 292 of the Code of Procedure which designated the judge before whom these proceedings might.be instituted and continued, and which provided that where an order was made by a justice of the Supreme Court, all subsequent proceedings should be had before some justice in the judicial district where the judgment-debtor resided. (See Senate Committee’s note to § 2434, and Mr. Throop’s note to same section.) In the latter it is stated that this section is taken from section 292 and amended as required by sections 2432 and 2433 of the Code of Civil Procedure, and also as required by section 7 of chapter 545, Laws of 1874, relating to the Marine Court of the city of New York. It is then added: The words where the judgment-debtor resides ’ have been omitted in the third sentence and the clause has been inserted in the fourth sentence, applying the corresponding provision to a case where the justice of the Supreme Court resides in a district other than that to which the execution was issued; because, in certain cases, the execution may issue to the county where the judgment-debtor has an office, and if he is a non-resident, the words expunged are meaningless.” It is quite apparent that the commissioners who drafted the Code of Civil Procedure did not intend to change the provision of section 292 of the Code of Procedure in relation to proceedings instituted before a justice of the Supreme Court, except to expunge the words ‘‘where the judgment-debtor resides,” and insert in lieu thereof the words “ embracing the county to which the execution was issued.” This was the only change mentioned, and I think the only change intended.

I cannot think that it was the intent, either of the commissioners or of the legislature, to repeal this salutary provision entirely or in part. All admit that it was not intended that it should be wholly repealed. Why, then, should it have been re-enacted in part only ? Can any good reason be assigned or -suggested why the legislature should have purposely repealed this provision so far as applicable to an action in the Supreme Court, and re-enacted it as to an action in any other court ? I can imagine none. Surely not because it would be less inconvenient or burdensome to the debtor in one case than the other, as it is manifest that such would not be the case. If no sufficient reason can be formd for such a distinction, then it is at least fair to presume that the legislature did not intend to create it, unless the language employed is so clear and unambiguous as to show conclusively that such was the intent.

I do not think the language employed requires any such construction. It seems to me that the words “ in that case ” may well be construed as referring to a proceeding instituted before a justice of the Supreme Court, unlimited to a case where an execution was issued out of a court other than that. If it was limited to a case in a court other than the Supreme Court, then the provision that it might be returnable before the county judge, or special county judge or special surrogate of that county would seem to be inconsistent with the condition which must exist to authorize the justice to make the order. It is only when each of the judges before whom the proceeding might be instituted is absent or disqualified that a justice of the Supreme Court can make the order, and if that is the only case where he must make the subsequent proceedings returnable before another judge, it would be idle, if not absurd, to provide that he might make the proceeding returnable before a class of officers who were unable to act.

It seems to me that the obvious purpose of both the commissioners and the legislature was to re-enact the provisions of section 292 of the Code of Procedure in relation to an order made by a justice of the Supreme Court, and to provide that in all cases where the order is made by such a justice, the subsequent proceedings must be had in the judicial district embracing the county to which the execution was issued, or in that county or an adjoining one, if before the other officers mentioned. I am also of the opinion that that section may be construed so as to carry out that purpose and intention without doing violence to the language employed.

Thus far I have discussed this question without reference to the authorities bearing upon it. In Browning v. Hayes (41 Hun, 382), this question was before the General Term of the second department, and that court held that where an order was made by a justice of the Supreme Court to examine a judgment-dehtor residing in another judicial district, the order must be made returnable before a justice of that district, although the execution was issued out of the Supreme Court. In deciding that case, it was held that the words “in that case,” in section 2434, did not alone refer to orders made for inferior judges, but were intended to embrace all orders made before a justice of the Supreme Court. This case was cited with approval in Merrill v. Allin (46 Hun, 626), and the same doctrine is laid down in 3 Rumsey’s Practice, 435, and Piero on Special Proceedings, 514. Here, then, we have a decision of the General Term of one of the departments of the State upon the question involved in this case. That case has been so far approved by the General Term of another department as to be cited by it. This construction of that section has also been accepted by the authors of the recent text boohs on the subject, and the rule as stated has been laid down as the true rale governing the practice in such a case. It seems to me that the uniformity in the decisions of the several departments which should prevail, and the impropriety of unsettling the practice upon this question, requires us to follow the principle of the decision in the Browning Case.

It is true that Judge YaNN, at Special Term, held otherwise (Blanchard v. Reilley, 11 Civ. Pro. Rep., 279), but that was evidently before the case of Browning v. Hayes was reported. Moreover, it seems to me that the construction placed1 upon this statute by the Special Term in that case, as well as in the case at bar, was too exact and literal and did not express the full intent and purpose of this statute.

I am of the opinion that the Special Term erred in denying the defendant’s motion to set aside the orders granted by Judge Kennedy, and that for such error the order should be reversed, with ten dollars costs, and that the appellant’s motion should be granted, without costs.

Merwin, J., concurred.

Hardin, P. J.

(dissenting) :

Pardee v. Tilton (20 Hun, 76; S. C., affirmed, 83 N. Y., 623) expressly held, that under section 292 of the Code of Procedure, it was irregular for a justice of this court to issue an order for the examination of a judgment-debtor in a county outside of the district wherein the judge resided, in which there was no provision “requiring the evidence and proceedings had before the referee ” to be returned to the justice making the order. In delivering the opinion in that case, quotation was made from section 292 of the Code of Procedure, as follows: “All subsequent proceedings shall be had before some justice in the judicial department where the judgment-debtor resides, to be specified in the order.” Following that quotation, the opinion continues: “ The direction should, therefore, have been that the referee report the testimony and proceedings to the justice designated in the order before whom the subsequent proceedings were to be had, and not to the justice who made the order.” Pardee v. Tilton was decided at a General Term in the first department in January, 1880.

In Shults v. Andrews (54 How., 376), decided at a Special Term held by me, the provision of section 292, already quoted, came under consideration, and it was there said in the opinion: “ This clause contains a limitation in respect to the jurisdiction of justices who grant such orders. * * * But debtors are not required to appear in subsequent proceedings before a justice residing out of the judicial district in which the debtor resides. The right to order him to appear in subsequent proceedings out of the district is taken away. The provision also requires the order to specify some “ justice in the judicial district where the judgment-debtor resides.” Such specification is imposed by the statute.” The provision in section 292 of the Code of Procedure, to which we have already referred, is omitted from section 2434 of the Code of Civil Procedure, and the latter section provides that either special proceeding may be instituted before a judge of the court out of which * * * the execution was issued.” This language is broad and confers in terms upon the judges of the court out of which the execution issued, power and jurisdiction over special proceedings instituted before them in cases where the execution was issued out of the court in which they are judges. Following this general language is a provision for a class of cases where the execution was issued out of a court other than the Supreme Court; ” and after enumerating the class and providing for certain facts being shown by an affidavit, it is provided that if the facts enumerated in the section are thus shown, “ the special proceeding 'may be instituted before a justice of the Supreme Court.” Then follow the words: “ In that case, if he does not reside within the judicial district, embracing the county to which the execution was issued, the order made or warrants issued by him must be returnable to a justice of the Supreme Court residing in that district, or the county judge or the special county judge or special surrogate of that or an adjoining county, as directed in the order or warrant.” We think the words in that case ” refer only to the words found in the second provision of the statute, conferring power upon justices of the Supreme Court in the exceptional cases enumerated, to wit: Where the execution was issued out of a court other than the Supreme Court. And it is made to appear by affidavit that each of the judges before whom the special proceeding might be instituted, as prescribed in this section, is absent from the county, or, for any reason, unable or disqualified to act.” Such is the interpretation placed upon the section by Vann, J., in Blanchard v. Reilly (11 Civ. Pro. R., 278), and the views expressed in that opinion meet with our approval.

In delivering the opinion in Browning v. Hayes (11 Civ. Pro. Rep., 223 ; S. C., 41 Hun, 382), Barnard, P. J., observed: Section 2434 of the Code of Civil Procedure is not very plain. It can be gathered therefrom, by a very strict reading, that it is only in cases where a Supreme Court justice makes the order in place of other inferior judges, that a provision must be inserted making the order returnable before a Supreme Court justice or other local magistrate of the judicial district where the order is to be executed.” We prefer this portion of the opinion as a correct interpretation of the section to the general expressions used by him in the latter part of his opinion, in which he reaches a contrary interpretation of the section under consideration. In a note to that case it appears that Mr. Justice Bartlett entertained and expressed substantially the same views as are found in the opinion of Yann, J., in Blanchard v. Reilly (supra), and that result seems to be approved by Kennedy, J., and Smith, J., the first of whom made the order in question, and the second approved of the same, as appears by his memorandum delivered at the Schuyler Special Term found in the appeal-book before us.

Merrill v. Allin (16 Hun, 623) does not aid the contention of the appellant; in that case the judgment was recovered in the Court of Common Pleas in the city and county of New York, and an execution was issued thereon to the sheriff of that county, that being the county where the judgment-debtor resided; and subsequently a transcript of the judgment was filed in Ontario county, and an execution was issued to that county; and it was alleged that certain parties held property of the judgment-debtor, and upon an affidavit to that effect application was made to the county judge of Ontario county; and it was finally held in that case that the county judge had not jurisdiction to entertain the proceedings.

We are of the opinion that the order appealed from should be affirmed.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    WILLIAM J. SLOAN, Appellant, v. JOHN I. BIRDSALL, ESTELLA B. STOUGHTENBURGH, ELLA A. OVERSTREET and WILLIAM McDONALD, as Trustees of the Estate of JOHN I. BIRDSALL, Respondents.

      Trust for the benefit of the grantor and others—invalid as against the creditors of the grantor to the extent of his interest only.

    One Birdsall executed a deed of trust to trustees by which he conveyed his property, both real and personal, in trust, first, to sell so much as should be necessary to pay all the just debts of the grantor, second, to manage or sell the residue of the lands; third, during the natural lives of the grantor and his wife, or the survivor of them, to dispose of the interest upon the net proceeds of the real and personal property by first paying the grantor an amount sufficient to clothe, support and maintain him, and such other allowance as the trustees should in their discre. tion deem proper, and by dividing the remainder equally between the grantor’s wife and his daughter.
    When the daughter attained the age of twenty-one years one-third of the trust estate was to become hers absolutely, the other two-tliirds to remain in the hands of the trustee, the income to be distributed as above stated during the lives of the grantor and his wife. On the death of either another third of the estate was to become the absolute property of the daughter, and upon the death of both the grantor and his wife the daughter was to have the whole estate.
    Two days thereafter Birdsall’s wife executed to the same trustees a like deed of trust of all her property, both real and personal.

      Held, that as the primary object of each deed, or one of the primary objects thereof, was to transfer the property of the grantor to trustees, in trust for the support and maintenance of such grantor, it was void, under 2 Revised Statutes (135, § 1), as against the creditors, so far as that particular trust was concerned, but was valid, as against the creditors of the grantor, so far as the trusts for the benefit of others were concerned.
    That the trusts which were valid did not fail, because the instrument creating them also contained a trust that became invalid when the separate rights of creditors were invaded.

      Semble, that a transfer does not come within the provisions of this statute, and is not made invalid thereby, where the use of the interest reserved to the grantor is merely incidental and partial, and is to vest or result after the execution of some active and lawful purpose for which the trust was primarily made.
    Appeal by the plaintiff William J. Sloan from a judgment of the Supreme Court, entered in tbe office of the clerk of the county of Otsego on November 23, 1886, with notice of an intention to bring up for review upon such appeal the said judgment, the decision of the court, its findings of law and fact, its refusals to find as requested, and the whole thereof, and all the proceedings upon which they, or any of them, were founded.

      J. B. Holmes, for the appellant.

      F. M. Gilbert, for the respondents.
   Martin, J.:

This was a creditor’s action to set aside a trust deed made by the defendant Birdsall to the defendant McDonald and another as trustees. It was made on the 14th day of November, 1867, and conveyed all of the grantor’s property, both real and personal, in trust: 1. To sell so much as should be necessary to pay all the just debts of the grantor. 2. To manage or sell the residue of the lands. 3. During the natural lives of the grantor and his wife, or the survivor of them, to dispose of the interest upon the net proceeds of the real and personal property by first paying the grantor an amount sufficient to clothe, support and maintain him, and such other allowance as the trustees should, in their discretion, deem proper, and by dividing the remainder equally between the grantor’s wife and his daughter. "When the daughter attained the age of twenty-one years one-third of the trust estate was to become hers absolutely, the other two-thirds to remain in the hands of the trustees, the income to be distributed as before stated during the lives of the grantor and his wife. On the death of either, another third of the estate was to become the absolute property of the daughter, and upon the death of both the grantor and his wife, the daughter was to have the whole estate.

On November 16, 1867, the defendant Estella B. Stoutenburgh, who was then the wife of the defendant Birdsall, gave a deed to the same trustees of all her property, both real and personal, in trust for the same purposes as were specified in the deed made by the defendant Birdsall.

The defendant McDonald and his co-trustee accepted the trust under both deeds and proceeded and continued to execute the same until 1868, when they were relieved therefrom and new trustees were appointed by the Supreme Court. Subsequently the trustees thus appointed were in turn relieved, and the defendant McDonald was again appointed by that court as sole trustee to carry out the trust created by said deeds, so far as the same then remained unexecuted.

Before the last appointment of the defendant McDonald, in an action in the Supreme Court, a decree was duly made and entered adjudging that one-third of the trust funds in the hands of the trustees belonged absolutely to the daughter of the grantors, and that the trust was ended as to that one-third. It was also further adjudged therein that the trust was ended as to the defendant Estella B. Stoutenburgh, then Estella B. Clark, and certain specified property in the hands of the then trustees was directed to be delivered to the daughter of the grantors, and certain other of the property in their hands was directed to be delivered to the defendant Estella B. Stoutenburgh. The trust as to the defendant Birdsall was, however continued, and the defendant McDonald was appointed as trustee to execute such trust; and said decree also provided that the said trustee should “ pay to the said John I. Birdsall, for his board and clothing, such sum as in his discretion may be necessary for that purpose, and at such time or times as he may deem proper, not exceeding in any one year the net income of said estate.”

The trust fund now in the hands of the defendant McDonald, as such trustee, consists of personal property of the'value of between eight and nine thousand dollars, which was originally the personal property of the defendant Birdsall. The real purpose of this action was to procure the application of that fund, or the income thereof, to the payment of the plaintiff’s judgment. The appellant claims that the deed given by the defendant Birdsall, at least as to the personal property thereby conveyed, was void as to subsequent as well as existing creditors, because it conveyed to the defendant McDonald and his co-trustee the grantor’s personal property in trust for his own use. It is declared by statute that “ all deeds of gift, all conveyances and all transfers or assignments, verbal or written, of goods, chattels or things in action, made in trust for the use of the person making the same, shall be void as against the creditors existing or subsequent, of such person.” (2 B. S., 135, § 1.)

The Special Term held that this statute did not render the transfer in question void, even as to the personal property conveyed, for two reasons: First. Because the trust fund was not created by the defendant Birdsall alone. Second. Because itwasnotfortheuse of the grantor.alone. This conclusion was based upon the cases of Curtis v. Leavitt (15 N. Y., 9), and Shoemaker v. Hastings (61 How., 19).

In the former case a trust deed was given to secure certain bonds that were issued by the North American Trust and Banking Company. The deed provided that the trustees named therein should, after selling or collecting the property transferred, pay the bonds issued by that company, and after the payment of such bonds and all costs and charges, the trustees should hold the bonds and mortgages assigned in trust for said trust and banking company and dispose of them as it should direct. In that ease the court held that the trusts created by that deed were not void under the statute on the ground that it was a conveyance in trust for the use of the grantor, it being the opinion of the court that the statute applied only to conveyances, etc., primarily for the use of the grantor, and not to instruments for other and active purposes, where the reservations to the grantor were incidental and partial (page 295). This was all that was decided in that case. "While there are certain expressions in the opinions delivered therein which, when not read in connection with the remainder of the opinion, might seem to uphold a somewhat different doctrine, yet, when the whole of the opinions on that branch of the case are read together they show quite clearly that the decision of the court was a fair epitome of the opinions delivered.

In the Shoemaker Case, a father sold two of his sons his farm and personal property, for which they agreed to pay a specified sum by paying the liens thereon and certain debts of the father, and also agreed to give him a mortgage for $1,000 and pay his two minor children $150 each when they became of age. In that case the court held that the transfer was intended as an actual alienation of the property, and did not fall within the condemnation of the statute.

The doctrine which may be fairly deduced from these cases is, that a transfer does not come within the provisions of this statute where the use or interest reserved to the grantor is merely incidental and partial, and is to vest or result after the execution of some active and lawful purpose for which it was primarily made, as is illustrated in the case of a chattel mortgage, assignment or pledge, as security for the payment of a debt and the like. Neither of those cases was like the case at bar, and in both the principle that a creditor could enforce his debts against any use or interest reserved by the grantor was expressly recognized.

In the case of McLean v. Button (19 Barb., 450) it was held that a transfer of personal property, the consideration of which was the future support of the grantor, his wife and children, was within the statute and void as to the subsequent creditors. In Young v Heermans (66 N. Y., 381), w here a transfer was in trust for the use of the grantor during his life, and for the payment of his debts after his death, it was held to be void under the statute. In Wilson v. Robertson (21 N. Y., 594), where an assignment appropriated the property of an insolvent firm to the payment of the individual debts of one of the parties, it was suggested by the court that it was void as a trust for the benefit of the assignors, or one of them; (See, also, Kingsland v. Tompkins, 5 Week. Dig., 318.)

An examination of this statute, and of the' authorities bearing upon it, leads us to the conclusion that where the primary object, or one of the primary objects, óf a conveyance is to transfer the property of the grantor to trusteés, in trust for his own support and 'maintenance, it is within the statute and void as to creditors, so far as that particular trust is concerned, although it contains other trusts which are valid. We are of the opinion that the trust deed given by the defendant Birdsall was valid as between the parties, and as to all of the world except his creditors; and that It was also valid as to his creditors so far as the trusts for the benefit of his wife and daughter were concerned. The trusts that were valid did not fail, because the instrument creating them also contained one that became invalid when the superior rights of creditors were involved. (Curtis v. Leavitt, 15 N. Y., 124; Scott v. Guthrie, 25 How., 514; Rome Exchange Bank v. Eames, 4 Abb. Ct. App. Dec., 95.) But we are also of the opinion that, so far as it provided for the support of the grantor, the trust deed was within the statute, and void as to his subsequent creditors as well as existing ones.

The fact that, at or about the time of the execution of this trust deed by the defendant Birdsall, his wife made a similar trust deed for the same purposes and trusts, or that the trust deed by the grantor contained other trusts which were valid, does not relieve the conveyance by the defendant Birdsall from the operation of this statute. The doctrine that this statute can be rendered nugatory or ineffectual, either by procuring another to.-join with the grantor in creating' a trust which is within its condemnation, or by joining valid, trusts with those that are declared to be void as to creditors, cannot, we think, be sustained.

As the appeal book shows that the property now in the hands of the trustee is personal property which originally belonged to the defendant Birdsall, and that, by the terms of the conveyance, he is entitled to his support from the income thereof, it follows that the income can be reached by his ci editors. Section 1873 of the Code of Civil Procedure provides that the final judgment in a judgment-creditor’s action “must direct and provide for the satisfaction of the sum due to the plaintiff out of any money, thing in action or other personal property belonging to or due to the judgment-debtor, or held in trust for him, which is discovered in the action.”

The complaint was sufficient to justify the court in awarding the relief to which the plaintiff was entitled. “Under our present system of practice a plaintiff is not to be turned out of court, when an answer has been interposed, because he has prayed for too much or too little or for wrong relief.” (Murtha v. Curley, 90 N. Y., 377.) We think the court erred in dismissing the plaintiff’s complaint and that the judgment should be reversed.

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

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

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


author: Mabtimt, J.:

text:
    SIMEON HILL, Appellant, v. WILLIAM McDONALD, as Trustee of the Estate of JOHN I. BIRDSALL; ESTELLA B. CLARK and ELLA A. OVERSTREET RESPONDENTS.

      Tfrust—statute of limitations applicable to a claim, which the trustee is directed to pay, where payment thereof is refused, by him.

      One Birdsall having executed a deed of trust conveying certain property to trustees, Qne of the purposes of which trust was to pay all the just debts of Birdsall, a creditor of Birdsall presented to the trustees for payment a claim, payment of which was refused by them in December, 1868. The claim was again presented and payment refused in 1875, and again, in 1880. Thereafter, and in May, 1888, an action thereon was brought against the trustees.

      Held, that the claim was barred by the statute of limitations; that even if a direct, positive and technical trust, such as belongs exclusively to the jurisdiction of a' court of equity, existed in favor of the .claimant, ,the statute of limitations commenced to run against the plaintiff’s debt from the time when payment was refused by the trustees.
    The rule which exempts such a trust from the bar of the statute of limitations is subject to two qualifications:

      Mrst. That no circumstances exist to raise a presumption from the lapse of time of an extinguishment of the trust.

      Second. That no open denial or repudiation of the trust is brought home to the knowledge of the cestui que trust, which requires him to act as in the case of an asserted adverse title. :
    Appeal by tbe plaintiff from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Otsego on tbe 31st day of October, 1889, after a .trial at a Special Term of tbe Supreme Court beld in Otsego county, at which a decision was rendered that the plaintiff’s complaint be dismissed upon tbe merits, without costs.

      John B. Holmes and W. J. Palmer, for the. appellant.

      F. B. Gilbert, for the respondents.
   Mabtimt, J.:

This action cannot be regarded as a judgment-creditor’s action,' as the plaintiff was not a judgment-creditor. The purpose of tbe action was to recover tbe plaintiff’s claim against the trust estate in the bands of tbe defendant McDonald. Tbe trust was originally created by deeds from John I. Birdsall and bis wife to the defendant McDonald and another as trustees. One of tbe purposes of tbe trust was to pay all tbe just debts of the defendant Birdsall. The defendant McDonald and his co-trustee duly qualified and acted until relieved by the 'Supreme Court. In April, 1868, they were relieved from tbe trust and F. H. Gilbert and John Bell were appointed as trustees in their place. Gilbert and Bell acted until November 2, 1871, when Bell was relieved and Gilbert was appointed sole trustee. In November, 1881, Gilbert was relieved from tbe trust and tbe defendant McDonald was again appointed as trustee in bis place.

When the trust deeds were given John I. Birdsall was justly indebted to the plaintiff’s assignor in the sum of twenty-five dollars, for which Birdsall gave his promissory note, which became due in April, 1868. This note was transferred by the payee to E. L. G-us-tin before its maturity. On September 25, 1873, Birdsall gave a new note for this debt, and another renewal note was given by him in November, 1879.

After the first note became due, and as early as the month of December, 1868, the then holder presented it to the trustees for payment and payment was refused. It was again presented in 1875 and payment demanded, which was again refused. In October, 1880, the then trustee requested the holder of the note to send it to his counsel for allowance. This was done, but the note was disallowed by the trustee, and has never been paid. The note, with all his equities and claim against the trust estate, were assigned by the holder to the plaintiff on January 3, 1883. At the time of the trial the debt and interest amounted to sixty-six dollars and forty-nine cents. This action was commenced in May, 1883. The trial court held that the plaintiff’s claim against the trustees of this estate was barred by the statute of limitations. The correctness of that determination presents the only question involved in this case.

When this action was commenced more than fifteen years had elapsed since the plaintiff’s debt became due, and nearly that time had elapsed since it was presented and rejected by the trustees of this estate. It was, therefore, barred by the statute of limitations, if the statute is operative as to such a claim. The plaintiff contends that an express trust was created between the trustees and the creditors of the defendant Birdsall, and that the statute of limitations has no application to such a case.

If we assume that a direct, positive and technical trust, such as belongs exclusively to the jurisdiction, of a court .of equity, existed in favor of the plaintiff’s assignor, the question is, whether the rule invoked applies to this case. The rule which exempts such a trust from the bar of the statute is subject to two qualifications that seem to be as well established as the rule itself. These qualifications are, first, that no circumstances exist to raise a presumption from lapse of time of an extinguishment of the trust; and second, that no open denial or repudiation of the trust is brought home to. the knowledge of the cestui que trust, which requires him to act as upon an asserted adverse title.

As we have already seen, the plaintiff’s claim was positively rejected and payment denied by the trustees. This action upon the part of the trustees must, we think, be regarded as an open and positive denial or repudiation of the trust as to the plaintiff’s assignor and of the debt which the plaintiff now seeks to enforce. It was brought home to the knowledge of the assignor in a manner which called upon him, to assert his rights. We think this case comes within the second qualification of the rule stated; that the statute commenced to run against the plaintiff’s debt from the time when payment was refused by the trustees; and that the court properly held that this claim was barred by the statute of limitations.

We find no merit in the claim that this action was on a sealed instrument. (Loder v. Hatfield,, 71 N. Y., 92.) Nor can we find anything in the case to justify the conclusion that the refusal to pay the debt had been waived, or that the defendant was estopped from insisting upon the statute as a bar by reason of the request of the trastee to the holder of this note to send it to the counsel to be presented on an accounting had by such trustee.

We are of the opinion that the case was properly disposed of by the Special Term, and that this appeal should not prevail, and the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Hardin, P. J.:

text:
    FRANK B. CHAPMAN, Respondent, v. GEORGE F. COMSTOCK, Appellant.

      Director of a corporation — liability of, in case of a failure to file an annual report — statute of limitations—presumption that prohibited powers have not been exercised— a deposit made in violation of law becomes due immediately.

    In an action brought to charge a director óf a corporation with a debt thereof, by reason of the failure of the directors to file an annual report of the condition of the corporation as required by law, it appeared that the plaintiff held a promissory note made by the On'ondaga Coarse Salt Association, which, being about to wind up its business, deposited with the American Dairy Salt Company (Limited) tlie sum of $10,880.90, and the plaintiff received from the latter company a passbook in his name in account with said American Dairy Salt Company, containing the following credit: February 11, 1882, cash, $10,880.90, and withdrew from such account, April 30, 1885, $4,300; June 1, 1888, $1,000, and July 11, 1888, '$1,000.

      Held, that as there was no express, explicit agreement obligating the plaintiff to allow his money to remain on deposit with the American Dairy Salt Company, that the amount of money mentioned in the account became due from the corporation the moment it was deposited, and the defendant, as one of its directors, became liable to pay the same at that time, and that consequently the three years prescribed by the statute as the limitation of time applicable to the enforcement of such statutory penalty having elapsed, that the plaintiff's right to recover against the director was barred.
    That subsequent defaults in filing the annual report after the liability was complete did not aid the plaintiff.
    That as the American Dairy Salt Company (Limited) was, by the thirteenth section of chapter 611 of 1875, expressly authorized to borrow money, and as it was not authorized to carry on a banking business, it was to be presumed that the corporation in receiving this money kept within its authorized powers and did not transgress the law by assuming to exercise banking powers, and that the transaction was, therefore, to be considered a loan rather than a deposit.
    That even if it should be assumed that a deposit had been made, and not a loan, such deposit being in violation of the law, the corporation became indebted for money had and received, and liable to an action therefor at the time that the deposit was made.
    Appeal by the defendant George F. Comstock from a judgment, in favor of the plaintiff, for $9,062.67, entered in the office of the clerk of the county of Onondaga on the 21st day of January, 1890; and also from an order, entered in said clerk’s office on the 21st day of January, 1890, refusing a new trial and denying the defendant's motion therefor made on the minutes of the court on a trial at the Onondaga circuit.
    The action was brought by the plaintiff, as a creditor of the American Dairy Salt Company (Limited), to.recover his debt from the defendant, a director of the said company.
    Prior to February 11, 1882, the plaintiff held a promissory note made by the Onondaga Coarse Salt Association, of which Thomas Molloy was treasurer. The American Dairy Salt Company (Limited) was organized in 1877, under chapter 611 of the Laws of 1875, and continued the business of manufacturing and selling salt until a receiver thereof was appointed m October, 1888. Molloy was also treasurer of the American Dairy Salt Company (Limited). While the Onondaga Coarse Salt Association was winding up its business it desired to pay and discharge its obligation to the plaintiff upon the note held by him, and did so by paying and delivering to the American Dairy Salt Company (Limited), on February 11, 1882, in cash $10,880.90. The plaintiff received from the latter company a pass-book in which was entered, viz., “ Dr. Frank B. Chapman in special account with the American Dairy Salt Company (Limited), Cr. February.il, 1882, cash, $10,880.90.” He received on account of such cash subsequently from the last named company the following sums, viz., “April 30, 1885, cash $4,300; June 1, 1888, $1,000; July 11, 1888, $1,000.” No further sums were paid to the plaintiff. Plaintiff in his complaint alleges:
    “ 3. That the defendant, George F. Comstock, was a duly qualified, elected and acting director of the said the American Dairy Salt Company (Limited), during each of the years 1881,1882, 1883, 1884, 1885, 1886, 1887 and 1888, and during all the times the defaults in making and filing the annual reports and certificates and appended reports, required by law, were made, occurred and continued as hereinafter stated.
    • “4. That'the said, the American Dairy Salt Company (Limited), did not, within twenty days after the 1st day of January, in either of the years 1881, 1882, 1883, 1884, 1885, 1886, 1887 or 1888, or at any time in said years 1881 to 1888, inclusive, make a report in writing, as of January first, signed by the president and a majority of the directors of the said corporation, and verified by its president and secretary, stating the amount of its- capital, the proportion thereof actually paid in, the amount, and, m general terms, the nature of its existing assets and debts, the names of its then stoqk•holders, and the dividends, if any, declared since the last report of said corporation, and file the same in the office of the secretary of State, as required by law; that the said corporation did not make or file, in either of the years 1881, 1882, 1883, 1884, 1885, 1886, 1887 or 1888, or at any time thereafter, the annual report required and provided for by section 18, chapter 611, Laws of 1875, or by said section as amended.”
    In the defendant’s answer he does not deny the allegations just quoted' from the plaintiff’s complaint; they are, therefore, to be deemed, as they were deemed, true upon the trial. The answer of the defendant alleges that “said corporation was not organized for or authorized to do the business of banking, or to receive deposits of money, but, on the contrary, was forbidden by law from so doing or receiving the same, and the said alleged deposit was void as a deposit.” And, as a further defense, he alleges “that the plaintiff ought not to have or maintain this action, because the same was not commenced within three years next after the accruing of said cause of action.” The principal question of fact submitted to the jury upon which a verdict was made to turn by the learned trial judge, was whether or' no the American Dairy Salt Company, when it acquired the money from the Onondaga Coarse Salt Association, so paid and delivered upon the assent of the plaintiff, received and held the same as “ a loan or a deposit.” Exceptions were taken to several rulings had upon the trial and to the charge as delivered, and to several refusals to charge as requested.

      Andrew H. Green, for the appellant.

      Kna/pjo, Nottingham dk Andrews, for the réspondent.
   Hardin, P. J.:

Under chapter 611 of the Laws of 1875, the American Dairy Salt Company (Limited) was organized. In the eighteenth section it is provided that “ every such corporation shall annually, within twenty days after the first day of January, make a report, which shall state the amount of capital, and the proportion actually paid in, the amount, and, in general terms, the nature of its existing assets and debts, and the names of its then stockholders, and the dividends, if any, declared since the last report. * * * And if any such corporation shall fail so to do, all the directors thereof shall be jointly and severally liable for all the debts of the corporation then existing, and for all that shall be contracted before such report shall be made.” There was a failure to make a report according to the provisions of the section in January, 1882. The defendant was then a trustee of the corporation. The corporation became indebted to the plaintiff on the 11th of February, 1882. As soon as the corporation created the debt, the defendant, as one of its directors, became liable for the same.

In Boughton v. Otis (21 N. Y., 261), where a similar provision found in chapter 40 of the Laws of 1848, authorizing the formation of manufacturing corporations, was under examination, in the course of the opinion delivered in that case it was said: “ The liability, when it has once attached, and upon whomsoever it has attached, remains fixed and unalterable.” Plaintiff is seeking to enforce aTiability that arises by reason of the provisions of the statute already quoted. As was said in Merchants’ Bank v Bliss (35 N. Y., 416): “ The action depends wholly upon the statute. There never was any such remedy or cause of action, in whole or in part, at common law.” In dealing with the liability of directors similarly situated in Jones v. Barlow (62 N. Y., 202), the court said: “ They are only liable to an action for debts actually due, and. for which a present right of action exists against the corporation.” And it was further held in.that case that “ the short statute of limitations only begins to run from the time a cause of action accrues, not from the time of default in making the report.” That decision was made while section 92 of the Code of Procedure was in force. The rule remains the same under section 383 of the Code of Civil Procedure. It becomes important, therefore, to inquire how and when the “debt” that the American Dairy Salt Company (Limited) contracted, by and with, the plaintiff, became due and payable. In considering this questipn, it may be observed that no written instrument was delivered to the plaintiff evidencing an indebtedness in clear and exact terms. This case is, therefore, unlike Smiley v. Fry (100 N. Y., 262), which was an action upon an instrument in the following words: “ Due S. K. Ashton, M. D., trustee, $4,000 returnable on demand. It is understood that this sum is specially deposited with us,. and is distinct from the other transactions with said Ashton.” In considering that instrument the court, held that it was in the nature of a certificate of deposit, and, therefore, no cause of action arose thereon until a demand was made for the'.sum deposited. We fail to find in .the words “ special account,” appearing in the pass-book which was delivered to the plaintiff, when read in the light of the oral testimony given upon the trial, any explicit agreement for forbearance. The circumstance that the word “cash” appears opposite the amount of money for which the coi’poration became indebted is entitled to some consideration in determining the question of whether or not there was any agreement for time, but it has no controlling force. .After a careful perusal of the evidence given upon the trial we are not able to say that it contains any express, explicit agreement' obligating the plaintiff to allow his moneys to remain for any definite period of time. It is all consistent with the idea that if he did leave his money he would receive certain specified interest thereon ; if he did not leave it he could, at his own pleasure, obtain a recall of the same. Nor do we regard the cir-' cumstances that the plaintiff received on different occasions partial payments upon the sum of money for which the corporation was indebted to him, as indicative of any agreement that for any length of time his money should be in the possession of the corporation. "We find nothing in the evidence which would necessarily defeat an action had such a one been brought the next day after the money was received by the corporation from the previous debtor. But it is argued by the learned counsel for the respondent that the debtor corporation received the moneys on deposit, and not as a loan. It may be observed that the testimony of Molloy bears quite as strongly in the direction of establishing a loan as it does in the direction^ of establishing a deposit. However, it is quite fair, in considering his evidence, to bear in mind that he said, while upon the stand, that he was not familar with the distinction between a loan and a deposit. In considering the question whether it was a loan or deposit, it should be borne in mind that the receiving of' deposits is an incident of banking and of banking corporations. The American Dairy Salt Company (Limited), was not authorized to carry on a banking business, indeed, it fell within the general provisions of the statute which prohibited that kind of business to such corporations. (See sections 3 and 4 of the Revised Statutes [7th ed.], vol. 3, p. 2124; N. Y. State Loan, and Trust Co. v. Helmer, 77 N. Y., 64; Pratt v. Short, 79 id., 445; and my opinion in Pratt v. Short, 53 How., 506; and the opinion of Andrews, J., in the same case sustaining the decision made at Special Term, 79 N. Y., 440; Id., 449.)

So it may be observed, in considering the question, that the American Dairy Salt Company (Limited) was, by the thirteenth section of chapter 611 of the Laws of 1875, expressly authorized to borrow money. That section contains the following words: It shall be lawful for all such corporations to borrow money for the legitimate purposes of such corporation.” (Session Laws of 1875, p. 758.) It is more reasonable to suppose that the corporation kept within its authorized powers, than to.believe that it transgressed the provisions of the prohibitive laws to which we have alluded. These views lead to the conclusion that the moment the corporation created the debt, the defendant, as one of its directors, became liable to pay the same ; he had incurred the statutory penalty,-and' he remained liable during the next three years ensuing; at the end of the three years the short statute of limitations became a bar to the plaintiff’s right of recovery.' (Code of Civil Procedure, § 383; Duckworth v. Roach, 81 N. Y., 49.)

Plaintiff is not advantaged by the fact that there were several other defaults following those of 188,1 and 1882 in making the annual reports. The subsequent defaults, after the liability was completed, did not aid the plaintiff. This question is put at rest by Losee v. Bullard (79 N. Y., 406). In that case, Sapallo, L, said: “ The appellants claim- that the failure to file the certificate in each year after 1868 created a new liability on the part of the defendant, and that, consequently, the default in 1873 and the subsequent years can be resorted to for the purpose of maintaining this action and avoiding the effect of the Statute of limitations. We think this position untenable, for two reasons. In the first place the statute requires that the action be brought within three years from the time the cause of action accrued. The action was for a statutory penalty. This penalty, if it ever w&s incurred, was completely incurred in 1868, and the testator of the plaintiffs could then have brought his action therefor. . We do not think that the continuance of the default in successive years had the effect of renewing the liability of the respondent as would a new promise or a payment on account in the case of a liability founded on contract.”

In The Rector, etc., v. Vanderbilt (98 N. Y., 175) a similar question arose, and Judge Danforth, speaking for the court, said: “ Neither the continuance of the default nor subsequent omissions on the part of the company to make a report couldj as to the debt in question; either renew the old liability or create a new right of action. The statute operates upon the remedy, and the omission of the creditor to pursue it cannot stop its running. The liability of the trustee was imposed by statute, and the benefit and ’suit therefor are limited to the creditor as the one aggrieved. In such a case, when the statute of limitations begins to run, nothing subsequent will stop it. But the question now before us is directly within the principle of the decision of this court in Losee v. Pullard (supra), and permits no further discussion It can make no difference that the company in this case continued to transact business. The plaintiffs were not required to sue the trustee, but could not, by omitting to do so, prevent the application of the statute.”

If it be assumed that the transaction amounted to a deposit on the part of the plaintiff with the American Dairy Salt Company (Limited), and that- such deposit was a violation of the restraining acts, and that the corporation became indebted for money had and received, and liable to an action therefor in accordance with the doctrine of Pratt v. Short (supra), it may be observed that the corporation, under such circumstances, had no valid agreement for time entitling it to set up a defense. It may be further observed that the defendant, if he became, by reason of the transaction, liable under the statute as for a debt of the corporation, or for the money had and received by the corporation, that liability occurred more than three years preceding the commencement of this action, and was, therefore, barred. The foregoing views lead to the conclusion : (1.) That the verdict ought to have been directed in favor of the defendant, or a nonsuit granted. (2.) That the verdict is against the evidence. (3.) That the several exceptions taken to the refusals to charge, present error.

The judgment and order should be reversed upon the exceptions and a new trial ordered, with costs to abide the event.

Martin and Merwin, JJ., concurred.

Judgment and order reversed upon the exceptions and a new trial ordered, with costs to abide the event.


author: Hardin. P. J.:

text:
    GEORGE W. PALMER, Respondent, v. EUGENE H. CONANT and GEORGE F. CONANT, Appellants.

      negligence — effect of payment of money to the father of an injured minor and the execution of a release by the minor.

    In an action to recover damages resulting from a personal injury received by the plaintifE through the alleged negligence of the defendants, it appeared that when the injuries were received by the plaintiff he was under twenty-one years of age, and that the defendants paid to his father the sum of $100, and a paper was thereupon executed by the plaintiff purporting to be a release of all claims against the defendants by reason of the injuries to the plaintiff.

      Held, that the payment of the money to the father was not a bar to the right of the plaintiff to recover damages in this action.
    That, in such an action, evidence of the amount of wages which the plaintiff is earning is admissible upon the question of damages.
    Appeal by tbe defendants from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of the county of Oneida on tbe 28th day of April, 1890; and also from an order denying a motion for a new trial made on tbe minutes of tbe court, entered March 13, 1890.
    Tbe action was tried at tbe Oneida Circuit before the court and a jury, and a verdict was rendered by the latter, in favor of tbe plaintiff, for tbe sum of $550.
    Tbe action was brought to recover damages for personal injuries received by tbe plaintiff through tbe alleged negligence of tbe defendants on tbe 19th of December, 1888, while tbe plaintiff was in tbe employ of tbe defendants in the operation of their saw-mill on tbe south side of Mad river, at Camden. James Gerow was defendants’ foreman in their chair shop and factory operated in connection with tbe mill, and on that day be instructed the plaintiff to go to tbe dam and “help put on slash boards.” It appears by the plaintiff’s evidence that while be was engaged in putting on the flush boards “ tbe north end of tbe log slid off ‘ of tbe abutment and throwed him (Chapman) down stream, and tbe board I bad, with tbe pressure of tbe water, carried bis end down, and tbe end I bad carried me up. Just as I got on tbe pivotal part of the dam tbe south end of tbe log came off and struck my leg and dragged me down the apron of tbe dam ten or twelve feet. Tbe log lying on tbe north end of the dam first loosened and went down stream, then it loosened from the south abutment, so they left both abutments. These flush boards were of hard wood, an inch and a half thick, twelve feet long, and averaged from eighteen to twenty-four inches in width. They raised the water. When the log struck me it dragged me off the apron of the dam and ten or twelve feet down stream. The water took me down under and the logs went to the north side of the creek and the water washed me on the south side, and I got out the best way I could; I don’t know how. Below the dam I should think the stream was seventy or eighty feet wide in high water. The logs were washed on the north side. When I got out the bones in my left leg were sticking out through two pairs of pants into the water. It was from about an inch below the knee to the ankle.”
    It appeared that the round timbers, without being fastened on the bottom, were allowed to rest on the smooth abutments with no planking or fastening to hold them in place, other than a piece of two-inch plank nailed below them, and when the pressure of the water came they gave way.

      George F. Morss and O. D. Prescott, for the appellants.

      P. H. Fitzgerald, for the respondent.
   Hardin. P. J.:

We think the evidence presented a question of fact for the jury. It was for the jury to' determine whether the defendants were guilty of negligence. It was for the jury to determine whether the dam was so constructed as to secure safety, and whether the principle upon which it was constructed was reasonably safe, and whether reasonable guards to secure safety were provided by the defendants. (Newall v. Bartlett, 114 N. Y., 404; Pantzar v. Tilly Foster Iron Mining Co., 99 id., 372.)

It appears by the evidence that the plaintiff was not present when the scantling were put down, and knew nothing of the manner in which they were fastened. The jury may properly have found upon the evidence that the plaintiff had no knowledge or appreciation of the defects which led to the accident, and that he was not chargeable with having voluntarily taken the risks incident to the situation in which he was placed. Whatever question there was upon that subject, we are of the opinion that it was one for the jury to determine. (Benzing v. Steinway & Sons, 101 N. Y., 547.)

Plaintiff was asked during his examination as a w itness: “ Q. How much wages did you earn a week from Conant ? ” To this question the defendants objected, that it was incompetent and immaterial, and íd dealing with the.objections the court observed: “ It is received only as an element of damages sustained by the plaintiff.” * * * The defendants took an exception and the witness answered: “ Five dollars a week.” It is to be observed that there was no objection to the form of the question; apparently it called for the wages he had been receiving prior to the injury. "We think such evidence was competent." In Beisiegel v. New York Central and Hudson River Railroad Company (40 N. Y., 9) it was held, viz.: In an action to recover for personal injuries, evidence of the amount the plaintiff, is earning at his trade, at the time of and immediately preceding the accident, is admissible upon the question of damages.”

In the course of the cross-examination of the physician and surgeon who attended the plaintiff, he was asked for his opinion in respect to the condition the plaintiff’s leg would have been in at the day of trial if he had “ positively and speedily ” obeyed instructions given by the physician. The question was objected to as incompetent and immaterial, and the court sustained the objection and the defendant took an exception. Upon looking into the evidence following, given by the witness, we find that he, in effect, answered the question, The witness says, viz.: “ I did not have any trouble in setting the bones, they came together very nicely, and stayed so until he got off the cot bed, and if they had been kept where I first set them, there would have been no difficulty in the union of these pieces of bones.”

The witness added at a later stage of his testimony that “ the plaintiff was a restless patient; the bone was broken in a good many pieces; it was crushed, and that would make any man restless; I told him that rest was imperative, and in the fore part of the treatment administered opiates to him to quiet his pain.”

Considering the evidence that the witness gave, we are not inclined to say that any prejudicial error was committed preventing an answer to the question as it was first framed upon the subject embraced therein. Some other rulings were made upon questions of evidence, which do not require from us any special'consideration, as we are of the opinion that no prejudicial error was committed.

When the injuries were received by the plaintiff he was under twenty-one years of age; and on January Y, 1889, the defendants paid to his father the sum of $100, and a paper was executed by the plaintiff on that occasion purporting to be a release of all claims against the defendants by reason of the injuries to the plaintiff’s leg. When that paper was executed the plaintiff was still a minor, being only twenty years, eight months and seventeen days of age. It is to be borne in mind that the father of the plaintiff was entitled to his services until he became of age, and, therefore, he was entitled to receive of the defendants such sum as he had lost by reason of the injuries sustained disabling the plaintiff from earning wages. Where a minor is injured the parents have a right of action, and the child also has a right of action. (Cuming v. Brooklyn City R. R. Co., 109 N. Y., 99; Traver v. Eighth Ave. R. R. Co., 4 Abb. Ct. App. Dec., 422.)

It appears by the evidence, that the cheek for the $100 was given to the father of the plaintiff at his house, and that the plaintiff was not there; and that when the plaintiff signed the paper he received nothing. We think the payment of the money, under the circumstances, to the father of the plaintiff does not stand in the way of the plaintiff’s right of recovery.

When Green v. Green was tried before me at Special Term in Onondaga county, I found that the defendant, while an infant, had conveyed a certain piece of real estate to his father for the sum of $400; having spent and wasted the money, he had no means or property whatever, and subsequent to his becoming twenty-one years of age he returned to the premises and took possession of them without any restoration to his father of the money that he had received; and in an action of trespass brought by the father I held that the plaintiff could not maintain the action. In delivering the opinion in that case upon an appeal taken to this court (Y Hun, 494), Gilbert, J., says: “ The court below, we think, properly gave judgment for the defendant. An infant cannot properly bind himself to his prejudice, but whenever the act done may.be for-his benefit, it will not be void, but he has an election when he comes of age to affirm or avoid it. (2 Kent’s Com., 233, etseq., and cases cited.) Mere acquiescence, without acts, does not amount to an affirmance.”' That case was removed to the Court of Appeals and the judgments of the Special and General Terms affirmed. (Green v. Green, 69 N. Y., 553.)

We think we ought to allow the verdict to stand, and the judgment and order should be affirmed, with, costs.

Martin, and Merwin, JJ., concurred.

Judgment and order affirmed, with costs.


author: Hardin, P. J.: Parker, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN KIEF, Appellant.

      What acts and statements of one Conspirator- are competent against the other— evidence—recor'd of acquittal of one of two parties indicted for murder— admissibility of it on the separate trial of the other conspirator.

    Although, during the continuance of a conspiracy, the acts and declarations of either conspirator in furtherance of the-conspiracy are competent evidence against the other, the declarations of either before the formation of the conspiracy or after the consummation of the offense are not admissible.
    On the trial of an issue in a criminal action, as to whether the accused aided and abetted another in'the commission of tlie crime, a judgment of acquittal rendered upon the trial of that other person for such crime is properly rejected. (Parker, J., dissenting.) . , • . . •
    Appeal by the defendant John Kief from a judgment of conviction of murder in the'first degree, rendered on the'6th day of October, 1886, after a tidal before the Court of Oyer and Terminer of the county of Madison.
    Adelbert D. Howard died on the 17th of December, 1884, and the indictment upon which the defendant was tried charges that his death was caused by the felonious act of Carrie C. Howard and the defendant by administering to the deceased arsenic. Carrie C. Howard had a separate trial before a'jury at an Oyer and Terminer held in January, 1885, and was acquitted by the verdict of the jury. The deceased was buried on the eighteenth of December, 1884. His body was exhumed on the 7th of January, 1885, and taken to an undertaker’s room in the village of Peterboro and a post mortem was held upon the body; and again it was returned to the grave and remained there until January twenty-third, when it was again taken up and taken to the undertaker’s room and remained there four days. An inquest was held on the 28th of January, 1885, at Peterboro, and at the close of the inquest the coroner issued a warrant upon which Carrie C. Howard and the defendant were arrested and committed to jail in Morrisville. The defendant was sentenced to be executed on the 26th of November, 1886.

      Joseph I. ¡Sayles, for the appellant.

      II. M. Aylesworth, district attorney, and E. N. Wilson, for the People, respondent.
   Hardin, P. J.:

Section 29 of the Penal Code provides as follows: “A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent, and a person who directly oí indirectly counsels, commands, induces or procures another to com,:mit a crime is a principal.” The theory of the prosecution is that the defendant aided and abetted Carrie C. Howard in the commission of the crime of murder. She was married to the deceased m 1878, and had various differences and quarrels with him until in 1882, when she separated from him. She was induced to return to her husband by means of a transfer made of his property to her. In the month of October, 1884, defendant became an employee, and, as such, a member of the Howard family. And it is claimed that while he was thus employed he joined the wife of the deceased in a conspiracy to cause the death of her husband, Adelbert D. Howard. The evidence indicates that, from some time in the month of October, 1884, down to the time of the death of the deceased, the defendant and Mrs. Howard were much in each other’s company. Together they visited Oneida, Cazenovia, Canastota, Morrisville and Clockville, and, on some occasions, drank intoxicating liquors in the hotels and saloons, she going with him in a carriage or a lumber wagon or on loads of grain. It also appeared that he assisted her at times about the household work. It is claimed that on the 3d day of December, 1884, the defendant and Mrs. Howard went to Oneida together, a distance of about fourteen miles from the Howard farm, and that while there Mrs. Howard made a purchase of arsenic in the name of the defendant, and that a day or two after this purchase the deceased was taken ill, having all the symptoms of arsenical poison. From that affliction he apparently partially recovered, and by the evidence it appears that on the 11th of December, 1884, Kief was again in Oneida, and while there purchased an ounce of arsenic at the drug store of Dyer. A day or two thereafter Howard was again taken violently ill, having similar symptoms and somewhat aggravated. The symptoms continued to increase and he grew worse, until the night of the 17th of December, when he died. The evidence fully reveals his symptoms, which indicated arsenical poisoning; and ajpost mortem was held and an analysis made of a portion of the body by a chemist, and the results reached tend to indicate that Howard came to his death by reason of having taken arsenic in his stomach. From the testimony of Dr. 'William Smith, the chemist, who made an analysis of portions of the body, it appears that he found in the liver the equivalent of a grain and a half of white arsenic, and in the stomach and its contents one-eighth of a grain, and in a piece of muscle one-twentieth of a grain, and in some other portions examined by him four-tenths of a grain. It appeared by the evidence that the defendant and Carrie C. Howard were the persons who took care of the deceased during the sickness alluded to. Some evidence was given of the declarations of the defendant, tending to support the theory of the prosecution, and upon all of the evidence it is insisted, in behalf of the people, that a conspiracy had been formed to cause the death of the deceased, and that in pursuance of that conspiracy he was poisoned, and that the defendant aided and abetted in the commission of the crime. In Kelley v. The People (55 N. Y., 566) it was said: “A conspiracy may be proved, as other facts are proved, by circumstantial evidence, and parties performing disconnected overt ¿cts, all contributing to the same result, and the consummation of the same offense, may, by the circumstances and their general connection or otherwise, be satisfactorily shown to be conspirators and confederates in the commission of the offense.” In the same case it was also held that, “ where there is sufficient evidence to justify the conclusion that different, persons, charged with a crime, were all acting with a common purpose and design, although it does not appear that there had been a previous combination or confederacy to commit the particular offense, yet the acts and declarations of each, from the commencement to the consummation of the offense, are evidence against the others.” Following the principles just quoted, it may be assumed that the evidence was sufficient to warrant the jury in finding a conspiracy between the defendant and Oarrie C. Howard to accomplish the death of the deceased, and it may be said while such a conspiracy existed, the acts and declarations of either, in furtherance of the. conspiracy, were competent evidence. However the declarations of either .before the formation of the conspiracy, or after the consummation of the offense, do not come within the rule.

In New York Guaranty and Indemnity Company v. Gleason (78 N. Y., 504) it was held, viz.: Having established a conspiracy, proof of the acts, admissions and declarations of any one of the conspirators in pursuance and furtherance of the criminal enterprise, .and in reference thereto, is competent. But the statement of one of them as to a past transaction accompanying no act done in furtherance of, or i.n connection with such enterprise, is not competent against the others.” Hr. Greenleaf lays down the rule (3 Greenl. on Ev., § 94) as follows: “ The evidence of what is said or done by the other conspirators must be limited to their acts and declarations made and done while the conspiracy was pending and in furtherance of their design; what was said .or done by them, before or afterwards not being within the principle of admissibility.” This rule was stated and reaffirmed in People v. Gorham (16 Hun, 93).

In People v. McQuade (110 N. Y., 307) Judge Andrews, in speaking upon the subject, said: “ The admission of this evidence was in. contravention of the settled rule that only the acts and declarations of a co-conspirator, done in furtherance and execution of the common design, are. admissible against one of the conspirators on trial for the common offense, and that when the conspiracy is at an end,.and the purposes of the conspiracy have been fxxlly accomplished, or the conspiracy has been abandoned, no subsequent actor declaration of one of the conspirators is admissible against another.” (1 Greenl on Ev., § 111; 3 id., § 94; People v. Davis, 56 N. Y., 103; N. Y. Guaranty, etc., Co. v. Gleason, 78 id., 503.)

Nellie Laird testified tliat she was in tbe bonse of tbe Howard’s on tbe 17th of April, 1884, and that she went with Mrs.'Howard to Peterboro. She was then asked to state whether she bad a conversation on that day with Mrs. Howard.'' The question was objected to as incompetent and improper and not evidence against the defendant. The objections were 'overruled and the defendant took an exception. The witness answered she had a conversation on that day, and when she was- asked to state what Mrs. Howard said, similar objections were taken and ovérruled by the court and án exception was taken. The witness thereupon answered, viz.:' “ She was talking about Howard and said he misused her. He went to Syracuse in bad places and came home sick and sbe had to wait on him, and sbe said how mean he was: She said she had a mind to give him poison sometimes; she said-she would if her courage hadn’t failed her. I told -her she wouldn’t do any such thing, and she' said she would.” Thereupon the defendant’s counsel moved to strike out'this evidence as incompetent and 'immaterial, and 'that no foundation had been laid for it as against the defendant. The motion was denied and an exception was taken. The defendant was not present when this conversation took place. -There is nothing in ’the case to indicate that a conspiracy had then been formed between Mrs. Howard and tbe defendant to' cause the death of Howard; on tbe contrary, it is very apparent from tbe evidence that if there was any conspiracy formed between tbe defendant and Mrs. Howard it was formed long after this conversation. Hence we are Of the opinion that tbe evidence was. in violation of the rule which we have already stated, and that it was erroneously received.

"When Simeon Eeese was upon the stand, as a witness for the people, he wa's asked whether he heard Mrs. Howard call her husband names and when. This question was objected tó and allowed, and an exception taken by tbe defendant. He said that in 1881 “ she called him before he ate breakfast a son of a bitch, a poor-house pauper.” We think her declarations on that occasion were not admissible. While David Jones was being examined in behalf of the people he was allowed to give statements and declarations made by Mrs. Howard in the summer of 1884, against the defendant’s objection and exception. By this witness’ evidence it appears that he worked for the Howards from December, 1883,. until the 7th of October, 1884, and that the defendant took his place, and that the defendant was there a week or ten days in the month of June. There is nothing in the testimony of this witness, or other evidence in the case to indicate that a conspiracy had been formed prior to or at the time, of these declarations. ¥e think their admission was, therefore, error.

The people put in evidence a deed executed in December, 1882, from Adelbert D. Howard to Carrie C Howard; and also a deed made by Mrs. Howard to Henry J. Mayor, dated January 21, 1885 ; and also a deed made by Mayor and Carrie C. Howard to the prisoner’s counsel, dated January 27, 1885. Objections were taken to these records, and they were overruled and exceptions were taken to the rulings. Apparently the latter deed was given for the purpose of securing counsel for services in defending Mrs. Howard. Although the defendant may have been at the city of Borne when the latter deed was executed, the evidence nowhere discloses that he took any part, in the transaction resulting in the deed. If there had been a conspiracy existing between the defendant and Mrs Howard, its purpose had been accomplished by the death of Howard on the seventeenth of December, and her act in transferring her property to her counsel on the 27th of January, 1885, apparently had no connection with the conspiracy, if one existed, prior to the death of Howard. We think the circumstance that the defendant went with her to the city of Borne, acting as a hired man or servant, on the occasion when she visited the office of her counsel and prepared the deed, did not render her act competent evidence against the defendant.

The defendant called as a witness one Elizabeth McGinnis, whose testimony was quite important for the defendant. During the cross-examination, for the purpose of impairing her credibility as a witness, she was asked to state that the farm that she and her husband lived upon joined the Howard farm, and that her husband held title to it, and that her husband had executed a mortgage upon his real and personal property. We think the inquiry into the acts of her husband in mortgaging his property were immaterial and ought not to have been received for the purpose of impairing her credibility as a witness.

"We think the acts and circumstances attending the preparation of the body for burial, and what disposition was made of his clothing and ring, so far as they were known to the defendant, were correctly received in evidence.

The rule laid down by the Court of Appeals in People v. Mondon (103 N. Y., 221) seems to justify the admission of the testimony and declarations made by the defendant before the coroner. We think the rule stated in the Mondon Case was not departed from in People v. Sharp (107 N. Y., 427). (See, also, Code of Grim. Pro., § 395 ; Hendrickson v. People, 10 N. Y., 13.)

We are not persuaded that any error was committed in rejecting the record showing the acquittal of Carrie C. Howard of the crime charged in the indictment against her. (Gelston v. Hoyt, 3 Wheat., 316.)

In State v. Mooney (64 N C., 54) it was held: “ Where two are indicted for a battery, the one for the act and the other for using encouraging language at the time, the wife of the one who encouraged the beating is a competent witness for the other party. The legal effect of an acquittal of the other is not an acquittal of her husband.” This case cites State v. Rose (Phil., 406); State v. Ludwick (Id., 401).

Other questions were pressed upon our attention by the learned counsel for the respective parties in the argument of the case, but we do not deem it important to consider them in extenso, as the views we have already expressed lead to the conclusion that a new trial must be awarded.

The conviction and judgment are reversed and a new trial directed in the Court of Oyer and Terminer of Madison county, to which court the proceedings are remitted.

Merwin, J., concurred.

Parker, J.:

Defendant was jointly indicted with one Carrie C. Howard for the crime of murder in the first degree. The charge is: That they jointly administered poison to her husband, Adelbert D. Howard, with the design to effect his death, and that he died from the effects thereof December 17, 1884. The defendants demanded separate trials, and Carrie C. Howard having been first brought to trial, a verdict of riot guilty was rendered in her behalf, and a judgment of acquittal entered thereon. Subsequently the defendant Kief being broxight to trial, a verdict of guilty was rendered against him, and judgment entered thereon, from which he has appealed to this court.

After the x>e°ple rested their case, .the defendant offered in evidence the record of the acquittal of Carrie C. Howard, which was excluded by the court under the. people’s objection that it was incompetent, irrelevant and immaterial, to which ruling an exception was duly taken by the defendant.-

For this alleged error, among others, the defendant asked that a new trial be granted. One of the issues on trial was, whether the defendant did himself administer the poison by which the murder was .effected. On such issue it is evident that the question, whether Carrie C. Howard was or was not guilty was entirely irrelevant. But another question in the case was, whether Kief aided and abetted, her in administering the poison to her husband. If she was the only one who administered the poison, and Kief was, in fact, absent at the time and ignorant that it was then being done, yet, if he aided and abetted her in such a scheme, he was, under our present Jaw, guilty as a principal equally with her, and the charge that they administered the poison would be sustained as to him.

The -trial judge charged the jury to that effect,.and much evidence was given on the part of the people tending to show that she committed the crime, and he aided and abetted her in doing it. On that issue it was clearly proper for defendant to give in evidence any fact tending to show that Carrie C. Howard did not commit such crime. Such a fact would clearly be relevant and material. The people proved many facts tending to show her guilty. The defendant might prove any fact tending to show her innocent. But the question is, whether the record of her acquittal was competent evidence upon the question of her guilt in favor of the defendant and against the people.

Prior to the enactment of section 29 of the Penal Code a person who merely counseled and abetted another in a scheme to commit a crime was not deemed a principal, and could not be convicted under an indictment charging him as such. (People v. Katz, 23 How., 93.) He was not considered guilty of the crime, but merely guilty as an accessory before the fact, and in order to hold him guilty asan accessory it was necessary to prove that the crime which it was claimed he had aided and abetted had, in fact, been committed by the other party. For such purpose, and as relevant to that question, the record of conviction of. the .other party was held to be prima facie evidence against the accessory. It was not held to be conclusive evidence because, the alleged, accessory was not a party to it, but it was conclusive evidence that a conviction had been had, and it was prima facie evidence that such conviction was correct, and hence that the party had committed the crime. Neither party was, therefore, concluded by the record. The people might give additional proof to establish, the guilt of the principal, and the accessory might, .notwithstanding the conviction, give evidence to show that such crime had not been committed. (3 Greenl. on Ev., § 46; Levy v. People,, 80 N. Y., 327; Jones v. People, 20 Hun, 545.) So a judgment of acquittal was prima facie evidence in behalf of the accessory upon the well-known principle, that a judgment may not be used as evidence against one in whose favor it might not have been used had the decision been the other way. (People v. Buckland, 13 Wend., 592; Case v. Reeve, 14 Johns., 82; Gelston v. Hoyt, 3 Wheaton, 316, 317.)

Although the record of the principal’s conviction has not been received as -evidence against the accessory without considerable opposition in some courts, it seems to be thoroughly settled in this State that it is prima facie evidence against him; and inasmuch as such record may be used in favor of the people against one who is not a party to it,, there does not seem to be any reason why it should not be used agcmist the people who are a party to -it. Assuming, then, that such is the. rule, it would seem that the record of the acquittal of Carrie C. Howard in this case was prima facie evidence in favor of this defendant upon the issue last above stated. Such issue is precisely, the same as if he had been on trial as accessory before the fact, viz., that he counseled and abetted Carrie C. Howard in administering poison to her husband. If she had been previously convicted, J do not see why, within the rule above stated, the record of her conviction would not have been prima facie evidence against him that she had committed the crime, and it would have been admissible, to prove that fact on tlie question of whether or not he aided and abetted her in so doing.

Now, under our Code, such, an issue may arise under an indictment charging him or both as principals. Formerly it could not, but, nevertheless, in both cases it is the same issue to be tried and determined upon similar facts and controlled by the same rules of evidence. The use of the record was not merely to prove the conviction. It was the guilt of the principal that must be established, and not merely the fact of his conviction. (See 80 N. Y., 327.) Frequently the parties were tried together, one as principal and one as accessory, and in such cases there was no prior conviction of principal; but the jury were instructed to first decide on the evidence as to the principal’s guilt, and unless he was found guilty the other was discharged. (See 20 Hun, 548.) So, also, the rule was not applicable to the trial of accessories merely. It was a rule of evidence applying to every case where the record became material to such an issue.

In the Buckland Oase a party indicted for compounding a larceny sought to plead the acquittal of the person charged with larceny as a conclusive bar to his conviction. The court held that it was prima facie evidence only, and not conclusive. In Maybee v. Avery (18 Johns., 352), the defendant, in an action of slander justified the charge that plaintiff stole hens by the record of plaintiff’s conviction for such a crime. The court held that it was prima facie evidence in defendant’s favor, but not conclusive, and in such case Judge Spences says, that a verdict upon an indictment is an exception to the general rule that a judgment is evidence only between the parties or their privies, upon the same principle that when the matter in dispute is a question of public right or interest, all persons standing in the same relation as the parties are affected by it.

It seems to be the settled law of this State, that on an issue whether the accused aided and abetted another in the commission of a crime, the judgment rendered upon the trial of that other for the crime is prima facie evidence as to whether that other person did or did not commit the crime. Such an issue having squarely arisen and gone to the jury in this case, I conclude that the record of Carrie C. Howard’s acquittal was competent evidence relevant to that issue, and that it was error to exclude it.

I concede that the acquittal of Carrie C. Howard was utterly immaterial on the question of whether defendant Kief, either alone or jointly with her, murdered tbe deceased by administering poison to him. So, also, I concede that such acquittal is no bar to the conviction of Kief on this indictment. But when it is sought to hold Kief on the ground that even though he were absent and took no part in administering the poison, he is guilty if he aided and abetted her in such act, an issue is put into the case that makes the question of her guilt a material and important one, and upon such issue the record of her acquittal is prima facie evidence in his favor. At folios 1740-1743 of the printed case, it appears that the jury were squarely instructed that they might find Kief guilty upon that theory, if the evidence warranted it; and, therefore, both by the charge and by the evidence introduced on the part of the people, such issue was put into this case, and being in, it was error to exclude any competent evidence relevant to such issue.

Conviction, order and judgment reversed and a new trial ordered in the Oyer and Terminer of Madison county, to which court the proceedings are remitted.