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afford a reason for reducing the bail. Motion denied, with costs to abide event.
From this order, and from each part thereof reciting the reading of papers on which the order of arrest was not granted, defendant appealed to the general term, where the order of the special term was in all things affirmed. From this order the defendant appeals.
Wm. J. Gaynor, for appellant, McMahon. Abram Kling, for respondent, Fitch.
PER CURIAM. The ground of arrest, as stated in the order, is that specified in subdivision 1 of section 550 of the Code of Civil Procedure. The affidavits tended to establish that the goods purchased by the defendant from Benjamin Fitch & Co. were obtained by fraud. The affidavit of Fitch shows that between the first of September and the twenty-first of October, 1885, his firm sold to the defendant goods and merchandise of the value and kind alleged in the first cause of action set out in the complaint, upon his representation that he was doing a good business, which the affiant alleges was untrue, “which appears by the affidavits annexed,” and to which he refers. It appears by reference to their affidavits that on the thirteenth of November, 1885, 23 days after the last sale by Fitch & Co., the defendant made a general assignment to one of his sons, with a fraudulent preference, in favor of a son residing in England, of $4,220, and that his assets, at the time of his assignment, were $7,212.25, and his liabilities about $14,308.17. It is a reasonable inference from these facts that the defendant's representations to Fitch & Co. that he was doing a good business, upon the faith of which Fitch & Co. sold the goods, were false.
The fraud in the purchase of the goods justified the further inference that the inability of the sheriff to find the goods, and take them on the requisition, was in consequence of a fraudulent disposition or concealment of the goods by the defendant, in pursuance of his original fraud, with intent that they should not be taken, and to deprive the true owner of the benefit thereof. Barnett v. Selling, 70 N. Y. 492.
The affidavits presented a case justifying the judge granting the order in deciding that a cause of arrest, under subdivison 1, § 550, was made out. The evidence presented to the judge was not as full and satisfactory as might be desired, but there was enough to confer jurisdiction to grant the order. We assent to the contention of the defendant's attorney that the allegation in the complaint, that the defendant "wrongfully took” the chattels for which the action was brought, did not necessarily imply a fraudulent taking, and that the right to arrest depended upon an extrinsic fact to be shown. But we think the requisite extrinsic fact was shown, or, at least, there was evidence tending to show it, which gave the judge jurisdiction.
The order should be affirmed. (All concur.)
(103 N..Y. 630)
WYCKOFF 0. SCOFIELD and others.
In re Petition of MADDOCK.
(Court of Appeals of New York. December 17, 1886.) 1. MORTGAGE-RECEIVER—LIABILITY-NEW YORK CONSOLIDATION ACT 1882, & 473-EN
The New York consolidation act of 1882, c. 410, 473, making it the duty of owners of walls endangered by excavation on an adjacent lot, to make same safe, on notice by the fire department, and authorizing the fire department to do the work at such owners' expense, and giving a right of action against such owners to the owner of the adjacent lot doing such work under the direction of the fire depart ment, does not cast the owners' duty upon a receiver appointed under foreclosure proceedings to receive the rents of the endangered building; and where, in such case, the inspector of buildings of the fire department gives notice to the owner and receiver of the endangered building, and on their default the party excavating the adjacent lot, without any application to the court appointing the receiver, proceeds to make the wall safe, under the inspector's direction, it lies within the discretion of such court to allow its receiver to reimburse for such work, and no appeal will lie from its refusal; and the party doing such work has no case for the interposition of a court of equity, and no legal claim, under the statute, against the receiver.
Foreclosure suit. Petition for payment of claim against receiver refused. Petitioner appeals.
On the eighth of January, 1884, the defendant Scofield was the owner, and the plaintiff, Wyckoff, mortgagee, of premises known as No. 367 West Twenty-third street, in the city of New York. Daniel J. Noyes was appointed receiver of the rents and profits accruing therefrom during the pendency of this action for the foreclosure of the plaintiff's mortgage. At the same time one Maddock owned the adjoining premises, No. 365. In consequence of an excavation upon this lot, the wall of No. 367 was made unsafe. The inspector of buildings gave notice to the owner and the receiver to make the same secure, and, they failing to do so, Maddock, under the authority of the inspector, furnished the materials and did the work, and then applied to the court for an order directing the receiver to pay from the rents and profits $395 expended for that purpose. The application was denied by the special term, and its order affirmed by the general term.
Lemuel Skidmore, for appellant. Samuel A. Noyes, for petitioner and respondent.
DANFORTH, J. It does not appear upon what ground the receiver was appointed, but it may be assumed that the premises were an inadequate security for the mortgage debt, or that the rents were expressly pledged for its payment; but, for whatever cause, it is plain the receiver had no power to lessen the fund to which the plaintiff had a right to resort. Such directions might have been given by the court, if necessary for the preservation of the property. It was not applied to. The expenses were not incurred, nor the repairs made, with its permission; and whether, having been made, the court shall allow its receiver to reimburse the contractor, was a matter entirely within its discretion, and from its determination no appeal will lie to this court.
The appellant, however, asserts that his right to compensation is given by section 473 of the act of 1882, c. 410, known as the "New York Consolidation Act." It is there provided that whenever there shall be an excavation upon any lot of land in the city of New York, and there should be any party or other wall on adjoining land, standing upon or near the boundary line, if the person whose duty it shall be to preserve and protect said walls from injury shall neglect or fail so to do, after notice from the fire department, the department may take such steps as in its judgment may be necessary to make the same secure, “at the expense of the person or persons owning said wall or building of which it may be a part; and any person or persons doing the said work, or any part thereof, under and by direction of said department, may bring and maintain an action against the owner or owners, or any one of them, of the said wall or building of which it may be a part, for any work done or materials furnished in and about the said premises, in the same manner as if he had been employed to do the said work by the owner or owners of the said premises.” It may be said that it was the duty of the owner of lot No. 367 to protect the wall against the effect of the excavation, but the statute is not broad enough to cast that duty upon others; certainly not upon the receiver, who can act only under the order of the court.
We think the petitioner failed to make out a case for the interposition of a court in equity, or a legal claim under the statute. The order appealed from should therefore be affirmed.
(All concur.) (103 N. Y..614) CRANSTON, Adm'x, etc., 0. NEW YORK CENT. & H. R. R. Co.
(Court of Appeals of New York. December 17, 1886.) TRIAL-INSTRUCTION ON DISAGREEMENT OF JURY_NEW TRIAL.
An instruction, in civil action for damages, to a jury who have returned into court and reported that there is no probability of their agreeing on a verdict, that
no juror ought to remain entirely firm in his own conviction one way or another, until he has made up his mind beyond all question that he is necessarily right, and the others are necessarily wrong," objected to by defendant, is ground for reversal of a judgment and new trial on verdict for the plaintiff. Action for damages. Judgment for plaintiff. Defendant appeals. Edgar L. Fursman, for appellant. R. A. Parmenter, for respondent.
RAPALLO, J. It is a serious question whether the uncontroverted evidence did not disclose a want of the care and caution which the law required of the plaintiff's intestate in approaching so dangerous a crossing as that at which he lost his life, and whether a nonsuit should not therefore have been ordered; but we need not discuss that question, as the case contains an exception which we are all agreed is well taken, and requires a reversal of the judgment and a new trial. After the jury had retired to consider their verdict, they came into court, and one of them stated that there was no probability of their agreeing. To this the court replied as follows: "I can't take any such statement as that. Gentlemen, you must get together upon a matter of this kind.". He then added: “No juror ought to remain entirely firm in his own conviction one way or another, until he has made up his mind beyond all question that he is necessarily right, and the others are necessarily wrong.” To this statement the defendant's counsel excepted. The jury thereupon brought in a verdict for the plaintiff.
We are of opinion that the instruction excepted to was not a correct statement of the law. It was incumbent upon the party holding the affirmative of the issue, who in this case was the plaintiff, to satisfy the jury by a preponderance of evidence of the facts upon which her right to recover depended. If she failed to do so, the defendant was entitled to a verdict. The jurors
who were not satisfied by the evidence of the truth of the plaintiff's allega· tions were justified in refusing, for that reason, to find a verdict in her favor, although they might not have made up their minds, beyond all question, that they were necessarily right, and that those who were in favor of finding a verdict for the plaintiff were necessarily wrong. To sustain this instruction would be to cast upon the defendant, in a civil action, a burden quite as heavy as that which rests upon the prosecution in a criminal case, and perhaps still more onerous. If the evidence was so clear as to lead to a conclusion with the degree of certainty required by the charge, there was nothing to submit to the jury, and it was the duty of the court, either to direct a verdict, or to nonsuit the plaintiff.
The judgment should be reversed, and a new trial ordered, costs to abide the event.
(103 N. Y. 600)
ROBERTS 0. COBB, Ex'r, etc.
(Court of Appeals of New York. December 7, 1886.) PROMISSORY NOTES-CHURCH DEBT-VOLUNTARY SUBSCRIPTION-CONSIDERATION-VALID
Where a person agreed to contribute a sum of money for the purpose of discharging a mortgage on church property, on condition that the church would raise the balance by voluntary subscription, and the church, through its pastor, acting as its agent, promised to make the effort, and did make the effort, and performed the condition, the promise became obligatory, and a note given in fulfillment thereof was based upon a sufficient consideration, on which an action may be maintained
for the use and benefit of the church. Action on promissory note. Judgment for plaintiff. Defendants ap
James M. Smith, for appellants. Henry C. Griffen, for respondent.
EARL, J. The persons interested in the First Baptist Church of Tarrytown had, prior to the first day of May, 1881, been engaged in building a church edifice, and at that time there was a mortgage upon the church property upon which there was then due about $5,000. An effort was then being made by the church to raise the funds to discharge that mortgage, with a view to the dedication of the church in the near future. Rev. Mr. Horr, the pastor of the church, was active and efficient on its behalf in procuring subscriptions and pledges for that purpose. About the first of May he called upon Mrs. Barker, defendant's testatrix, an aged lady, who was a member of the church, and requested her to make a contribution, and she promised to contribute $2,500 in cash towards payment of the mortgage, if he would secure pledges for the balance, ($12,500,) and he promised her to make the effort. He at once set about raising the requisite sum, and secured pledges for the amount during the month. After he had done so, on the thirty-first day of May, 1881, he called upon Mrs. Barker for the amount of her subscription, and she, finding it inconvenient to pay the cash in discharge thereof, executed the instrument set out in the complaint, and delivered it to him. She subsequently paid thereon $500, and this action was brought by the plaintiff, to whom the note was indorsed by the trustees of the church, to recover the balance.
It is entirely clear, we think, that Mr. Horr must be regarded as having acted for and on behalf of the church in procuring pledges to pay the mortgage. He was not acting in his own interest, and his relations to the church were such that it is a proper, if not an absolutely necessary, inference that he was its agent, acting for it with the sanction and co-operation of its trustees. This money and note which he obtained from Mrs. Barker were immediately delivered to the trustees, and his action approved by them; and all the money and subscriptions which he obtained were turned over to the trustees, and used in the discharge of the mortgage. Therefore, whatever he did, and whatever he promised to do, the church did and promised. We have, then, a case where Mrs. Barker agreed to give $2,500 for the purpose of discharging the mortgage, on condition that the church would raise the balance by voluntary subscriptions, and the church promised her to make the effort. It did make the effort, and performed the condition, and therefore her promise became obligatory, and the note which she gave in fulfillment thereof is based upon a sufficient consideration. Trustees of Hamilton College v. Stewart, 1 N. Y. 581; Barnes v. Perine, 12 N. Y. 18; Marie v. Garrison, 83 N. Y. 14; Pars. Cont. (5th Ed.) 432, and notes.
But if it could be held that Mr. Horr did not act as the agent of the church, then it would follow that he acted for himself in procuring the subscriptions, intending to present the money obtained to the church for the discharge of its mortgage, and the same conclusion would still be reached. In that event, Mrs. Barker promised to give him $2,500 if he would procure subscriptions for the remaining $12,500. He accepted the offer, and performed the condition, and thus there was an adequate consideration to uphold her promise. He called upon her to perform her promise, and took her promissory note, payable to the trustees of the church, in discharge of the obligation to him. That
1 See note at end of case.
note was founded upon a sufficient consideration, and was valid in the hands of the trustees, and they gave good title thereto by their indorsement to the plaintiff. So, in any view that can be taken of this case, the judgment was right, and should be affirmed. (All concur.)
NOTE. SUBSCRIPTION. Promises to contribute to a common object are good considerations for each other, and can be enforced if the intended donee has incurred obligations on the faith thereof. Landwerlen v. Wheeler, (Ind.) 5 N. E. Rep. 888; Osborn v. Crosby, (N. H.) 3 Atl. Rep. 429, and note; Honan v. Steele, (Neb.) 26 N. W. Rep. 472; Paddock v. Bartlett, (Iowa,) 25 N. W. Rep. 906; United Presb. Church v. Baird, (Iowa,) 14 N. W. Rep. 303; Des Moines University v. Livingston, (Iowa,) 10 N. W. Rep. 739; Allen v. Duffy, (Mich.) 4 N. W. Rep. 427; but it is held that such a subscription implies no previous consideration, and becomes operative only by way of estoppel; unless others have subscribed on the faith thereof, or an undertaking has been assumed, they are not binding contracts, Gans v. Reimensnyder, (Pa.) 2 Atl. Rep. 425, and note; that they are mere offers which may be revoked at any time before money has been expended or liability incurred on the strength thereof, Grand Lodge v. Farnham, (Cal.) 11 Pac. Rep. 592.
(103 N. Y. 587)
PEOPLE 0. MoCALLAM.
(Court of Appeals of New York. December 7, 1886.) 1. LARCENY-EVIDENCE-POSSESSION OF STOLEN PROPERTY.
Where, in a trial for larceny, there was no direct proof of an actual possession, but evidence of circumstances which tended to show that the defendant took and had the possession of the property stolen, it was a question of fact for the jury to
determine whether the accused was guilty or not. 2. CRIMINAL LAW-INSTRUCTIONS-JURY-CONSTRUCTION OF CHARGE-REVERSAL OF JUDG
In the trial of a criminal case, if the charge, as a whole, conveyed to the jury the correct rule of lawon a given question, the judgment will not be reversed, although detached sentences may be erroneous; and, if the language employed be capable of different constructions, that construction will be adopted which will lead to an affirmance of the judgnient, unless it fairly appear that the jury were, or, at least,
might have been, misled; following Caldwell v. New Jersey S. B. Co., 47 N. Y. 282. 3. EVIDENCE-CONFESSIONS--CODE CRIM. Proc. N. Y. & 395.
The words of a constable addressed to a person charged with larceny, that "she might as well own up, as they had proof to convict her,” will not render the confessions of the accused inadmissible, under section 395 of the New York Code of
Criminal Procedure. 1 4. WITNESS-ACCOMPLICE-IMPEACHMENT OF.
In a trial for larceny, where a witness was proved to have been an accomplice, evidence of previous statements made by her is admissible for the purpose of con
tradicting and impeaching her testimony. 5. LARCENY-GRAND LARCENY-PETIT LARCENY-INSTRUCTIONS.
In the trial of an indictment for grand larceny, an instruction to the jury “to the effect that if they were convinced that the value of the property taken was over $500, and that the defendant took it, they might convict her of grand larceny in the first degree; and, if the property taken was of the value of more than $25, they might convict of grand larceny in the second degree; and, if less than $25, the verdict might
be for petit larceny,”—was not erroneous. Indictment for grand larceny.
There was a trial by jury, and a verdict and judgment rendered for the people. The defendant appealed.
Watson M. Rogers, for appellant, McCallam. E. C. Emerson, Dist. Atty., for the People.
1 As to when confessions or statements of a prisoner are, and when not admissible, see Hopt v. Territory of Utah, 4 Sup. Ct. Rep. 202; Heldt v. State, (Neb.) 30 N. W. Rep. 626; Ballard v. State, (Neb.) 28 N. W. Rep. 271; People v. Mannausau, (Mich.) 26 N. W. Rep. 797; People v. Wolcott, (Mich.) 17 N. W. Rep. 78; Beebe v. U. S., (Dak.) 11 N. W. Rep. 505; People v. Stevens, (Mich) 11 N. W. Rep. 220; U. S. v. Jones, 10 Fed. Rep. 469; People v. Druse, (N. Y.) 8 N. E. Rep. 733; Kollenberger v. People, (Colo.) 11 Pac. Rep. 103; State v. Elliot, (Mo.) 2 S. W. Rep. 411; Yates v. State, (Ark.) 1 S. W. Rep. 65.