Imágenes de páginas
PDF
EPUB

details of his evidence before the grand jury, all of which he denied. The counsel for the accused objected to this examination of the people's witness by the district attorney, and the minutes of the grand jury were handed to the judge to show him that the witness was an unwilling witness. The examination then stopped. The minutes were not needed to show that the witness was testifying falsely on the trial, or had done so before the grand jury. The examination went no further than was justifiable, under the circumstances. Bullard v. Pearsall, 53 N. Y. 230.

The next error is one of proof. The people called a witness, one John Kelley. He testified that the three convicted defendants were all at a room in Long Island City on the Saturday night the store was robbed; that he (Kelley) lay down and went to sleep; that when he woke up two of the appellants, Thomas Ricker and Matthew O'Neil, came in. This was about three o'clock Sunday morning. Kelley then went with them, and on the corner of Jackson avenue and Tenth street they found Thomas Ricker, O'Neil, and Boyle, and they had about 60 pairs of shoes. All these persons assisted in putting the shoes in the cellar of one O'Dowd. During the day, while all the parties were together, they said the shoes came from Shearer's Hall, which is the building where the Holzer store was. The evidence does not show that Kelley was an accomplice in the crime. He was not present at its commission; did not organize or take part in it, further than to help the defendants conceal the property after the burglary, and even then he knew of nothing criminal in its acquisition. It was subsequently that they told him that it was taken from Shearer's Hall, (Holzer's.) There may well be doubt whether he was as innocent as he claims, but there was no proof of his being an accomplice. It was a question for the jury to determine. If he was not an accomplice, the corroboration was not necessary. It was only a question of credibility of the witness, which is also a question for the jury. Under the rules governing the trial of issues, there was no error committed on the trial, either by the court or jury, and the conviction should therefore be affirmed.

PRATT, J., concurs.

DYKMAN, J., (dissenting.) These three defendants were indicted with two others by grand jury of Queens county for burglary in the third degree, committed by breaking into the store of one Michael Holzer, and stealing a quantity of ready-made shoes, and also for larceny in the second degree. They were tried together upon the indictment, and the first witness called for the people was John Boyle, who was in confinement under an indictment for the same crime charged upon these defendants. He was a witness before the grand jury when the bill of indictment against the defendants was found, and he there gave evidence against them, but in his testimony upon the trial he disavowed the same and said it was all false, and given under the dictation and coercion of the police officer when he was under arrest. He furnished no evidence against these defendants. The next witness called by the public prosecutor was John Kelley, who was also charged with complicity in the same crime with the defendants. He gave testimony sufficient to connect the defendants with the commission of the offense charged against them, if unrestricted force and effect is to be allowed to his evidence. Then some officers were examined, who found some of the shoes in pawn-shops, and the complainant was examined to prove the felonious entry into his store and the loss of his shoes. None of the pawn-brokers were examined, and the testimony of Kelley was left entirely uncorroborated. The defendants were found guilty by the jury under both counts in the indictment, and a motion for a new trial was denied, and they were all sentenced to imprisonment. The case is brought here on an appeal from the judgment of conviction, and from the order denying the motion for a new trial. We think the conviction of

these defendants was secured erroneously, and contrary to the well-settled principles which prevail in the administration of the criminal law. "A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, (Code Crim. Proc. § 399:) and the corroborative evidence required by this law must be evidence from an independent source of some material fact tending to show the commission of the crime, and the connection of the defendant therewith, (People v. Hooghkerk, 96 N. Y. 149.) While there is no form or manner prescribed for the production of the confirmatory evidence required by the statute in question, yet it must appear in some way. It may arise from circumstances, or it may come from legitimate inferences from established facts, but in some way or from some source there must be evidence tending to connect the accused persons with the commission of the crime, so that the conviction will not rest entirely upon the evidence of the accomplice. People v. Everhardt, 104 N. Y. 591, 11 N. E. Rep. 62. The conviction of these defendants upon the uncorroborated testimony of an accomplice was violative of the statute, and the new rule established thereby, and the conviction and judgment should be reversed, and a new trial granted.

MITCHELL v. MITCHELL.

(Supreme Court, General Term, Second Department. February 11, 1889.) TRIAL VERDICT-CORRECTION-APPEAL.

Where the verdict in an action for conversion in justice court is simply "for the plaintiff for the return of the property," without assessing its value, and judgment is entered on the verdict, and no attempt is made to have the verdict corrected, plaintiff, on appeal from the judgment, cannot have it reversed for such defect in the verdict. DYKMAN, J., dissenting.

Appeal from county court, Queens county.

This action was brought by Eleanor T. Mitchell, as administratrix, etc., of Elijah J. Mitchell, deceased, against James T. Mitchell, before a justice of the peace. The justice's return to the county court simply recites that the complaint was an action "for conversion of goods, chattels, and credits of Elijah J. Mitchell, deceased, consisting of a gold watch, overcoat, and dog, valued at $200;" and that "the defendant answered by general denial;" that the action was tried to a jury; and that the verdict was "for the plaintiff for the return of the property,” and her costs. Judgment being entered accordingly, plaintiff, without having attempted to have the verdict corrected, appealed to the county court, where the judgment was reversed, on the ground that, the action being in conversion, and not in replevin, the verdict and judgment would defeat the plaintiff's remedy, and judgment was entered in favor of plaintiff for costs. Defendant appeals.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Benjamin W. Downing, for appellant. Robert Townsend, for respondent.

BARNARD, P. J. The return of the justice fails to show whether or not the plaintiff at the time the summons was issued made a written requisition for the return of the property. The complaint seems to have been in writing, and that is not returned, or a copy of it. The evidence was all addressed to the question of the plaintiff's title to the property, and the jury rendered a verdict "for the plaintiff for the return of the property." No objection was made to the form of the verdict by either party. The plaintiff then appealed from the judgment in his favor rendered on this verdict. Such a judgment could not be reversed on appeal. The verdict could have been corrected by the jury, if the point had been made that the value of the property should have been assessed, so that the same could be recovered in case a return could not be had. Johnson v. Carnley, 10 N. Y. 570. In this case it was held that

the form of the judgment could not be reached by an exception. The rule that in courts of justices of the peace objection must be taken when the error could be corrected, if made, is uniform. The judgment for the return of the property was good so far as respects the title, and the plaintiff accepted it by his silence. The judgment of the justice should be affirmed.

PRATT, J., concurs.

DYKMAN, J., (dissenting.) This action was commenced in a court of justice of the peace by the plaintiff as administratrix of her deceased husband, for the conversion of a watch, an overcoat, and a dog. The trial was before the justice of the peace and a jury, and the verdict was "for the return of the property." It does not appear whether judgment has been entered upon the verdict, and it is quite immaterial. The law makes the judgment in accordance with the verdict, and the justice can write none other. No objection was made to the form of the verdict at the time of its rendition, and no request was made to the court for its correction, either by the jury or the court. The verdict was for the plaintiff, and the judgment the law makes upon it is for the return of the property. But there was no assessment of the value, and therefore there seems to be no legal mode of enforcing the judgment. The result seems to be, therefore, that the judgment is unavailable to the plaintiff, although nominally in her favor. The judgment of the county court should therefore be affirmed, with costs.

ISLE OF WIGHT Co. v. SMITH.

(Supreme Court, General Term, Second Department. February 11, 1889.) CORPORATIONS-CANCELLATION OF NOTES-USURY.

In New York a corporation cannot maintain an action to cancel securities for a loan to it on the ground of usury; Laws N. Y. 1850, c. 172, providing that a corpora tion cannot set up the defense of usury in an action to enforce the payment of the loan.

Appeal from special term, Queens county.

Action by the Isle of Wight Co. against Frederick H. Smith, Jr. Plaintiff appeals from an order sustaining a demurrer to the complaint.

Argued before DYKMAN and PRATT, JJ.

Thomas V. Cator, for appellant. H. Kobbe, for respondent.

DYKMAN, J. This is an action brought to procure the cancellation and surrender of certain securities for the payment of a usurious loan made by the defendant to the plaintiff. The defendant demurred to the complaint, and had judgment in his favor in the court below, from which the plaintiff has appealed. We find no principle which will justify a recovery in this action. The plaintiff is a corporation, and could not interpose the defense of usury in any action brought to enforce the payment of the loan. Chapter 172, Laws 1850. As, therefore, the interposition of such a defense would be unsuccessful, it follows necessarily that the same facts set up in a complaint in an action for affirmative relief can afford the plaintiff no greater relief. It cannot accomplish by indirection what it cannot do directly. Moreover, we think the question has been adjudicated in this state, and decided against the contention of the plaintiff. Insurance Co. v. Packer, 17 N. Y. 51; Leavitt v. Curtis, 15 N. Y. 9. The judgment appealed from should therefore be affirmed, with costs. All concur.

SCHLAEFER v. HEIBERGER.

(Supreme Court, General Term, Second Department. February 11, 1889.) PAYMENT-VOLUNTARY PAYMENT-RIGHT TO RECOver.

Where one voluntarily, and not induced by false representations, or acting under a misconception of fact, pays a just claim against another person, he cannot recover the money so paid.1

Appeal from Kings county court.

Action by Charles F. Schlaefer against William Heiberger.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Cameron & Kropp, for appellant. James F. Quigley, for respondent.

DYKMAN, J. The defendant in this action had a bill against the father of the plaintiff, and he caused it to be presented to the plaintiff's wife, and she paid it voluntarily. This action was then commenced in a court of a justice of the peace for the recovery of the money. The defendant had judgment in the first court, which was affirmed on appeal to the county court, and now the plaintiff has brought the case here on appeal. The payment was not induced by false representations, and there was no mistake or misconception of fact, and the payment resulted in the discharge of a just debt, and we find no reason for interference with the judgment. The judgment should therefore be affirmed, with costs.

MCDOUGAL v. GRAY et al.

(Supreme Court, Special Term, Tioga County. October, 1888.) COSTS-SECURITY-NON-RESIDENT-EXECUTOR.

Code Civil Proc. § 3265, provides that the defendant may require security for costs where the plaintiff is a non-resident. By section 3270, where there are two or more plaintiffs, security cannot be required unless it can be required of all. By section 3271, in actions by or against an executor suing in his representative capacity, the court may in its discretion require plaintiff to give security. Held, that in an action by a non-resident executor appointed in this state, suing individually and as executor, it is improper to order security for costs ex parte, as the executor's nonresidence is no ground for requiring security of him.

Action by George McDougal, individually and as executor, against Gray and others, to construe a will. Plaintiff moves to vacate an ex parte order requiring him to give security for costs because of his non-residence. Code Civil Proc. § 3268, provides that the defendant may require security for costs to be given in an action commenced by a person residing out of the state. Section 3271 provides that, in an action by or against an executor in his representative capacity, the court may, in its discretion, require the plaintiff to give security for costs.

Morse & Knipp, for plaintiff. H. H. Rockwell, for defendants.

SMITH, J. This action was brought to construe a will. Some of the defendants procured an order ex parte that the plaintiff give security for costs. This is a motion to vacate that order. The plaintiff appears in the complaint both individually and as executor. The case, therefore, stands as though there were two plaintiffs,-one, the individual; the other, the executor. If security for costs can be obtained in such a case, under section 3268 of the Code, then the order was properly granted ex parte. If security from a nonresident executor, however, can only be obtained under section 3271, then the order could only be granted by the court, and was improperly granted, inas

"That money voluntarily paid under mistake of law, but with full knowledge of all the facts, cannot be recovered back, see Railway Co. v. Iron Co., (Ohio,) 18 N. E. Rep. 486; Erkens v. Nicolin, (Minn.) 40 N. W. Rep. 567, and note.

much as, under section 3270, security for costs cannot be required under section 3268, unless it can be required from both plaintiffs. The question, then, resolves itself into the single question: An executor, non-resident, appointed within this state, brings an action againt a resident defendant. Can he be required to give security for costs, under section 3268? He is not personally liable for costs, except where guilty of misconduct or bad faith. The estate which he represents is within the control of the courts of this state. His nonresidence is, therefore, not any reason for requiring security for costs. Hall v. Waterbury, 5 Abb. N. C. 356. The motion to vacate the order must therefore be granted, with $10 costs.

TOWN OF SOUTHAMPTON v. Post.

(Supreme Court, General Term, Second Department. February 11, 1889.) 1. BOUNDARIES-ADVERSE POSSESSION-PRESCRIPTION.

Where land has been inclosed as a burial ground, and acquiesced in by defendant and his predecessors for more than a century, under a claim supported by a grant, and plaintiff has had such quasi possession as is usual in such cases, viz., the occasional exercise of the right of burial, the boundaries, as so located, cannot be questioned.

2. SAME-EVIDENCE-DESCRIPTION OF QUANTITY-TOWN RECORDS.

A statement, in a town record agreeing to give a certain tract of land to a third person in consideration of a footway along his lot to the town's burial ground, that "the town have one acre at the burial place," cannot operate to limit the quantity of land actually set apart and appropriated to that use.

3. DEED-DESCRIPTION-MESSUAGE-INCLUDES WHAT.

A conveyance of "a messuage," described merely by metes and bounds, cannot be construed as embracing a public burial ground, so as to establish a claim of adverse possession thereto, though the conveyance does not except the burial ground. A parcel of land so used is no part of a messuage.

4. SAME-GRANT OF HERBAGE-RIGHT TO ROADWAY.

Use of strips of land for roadways cannot be justified under a grant of herbage. Appeal from judgment on report of referee.

Action for trespass brought by the town of Southampton against Edwin Post. Judgment for plaintiff, and defendant appeals. The following is the opinion rendered by the referee:

"The plaintiff, in its complaint, avers its ownership of the locus in quo, namely, the old burying-ground,' substantially as the same is now surrounded by fence. The answer of the defendant, read in connection with the stipulation of the parties, dated October 6, 1887, admits the title of the plaintiff to one acre, parcel of the premises described in the complaint, but puts in issue the title of the plaintiff to the residue of said premises. The defendant also has denied the trespass alleged in the complaint. The source of the title is the colonial grant made by Gov. Dongan to the trustees of the freeholders and commonalty of the town, December 6, 1686, confirmatory of a previous patent granted by Gov. Andrus, November 1, 1676. There is no question that the locus in quo is embraced in these grants, and there is no direct evidence that the grantee has ever parted with the title thereto, or any part thereof, prior to this action. The plaintiff put in evidence an entry in the town records dated January 6, 1665, stating that the overseers have agreed with James Herrick that he shall have one acre of land at the rear of his home lot, in consideration of a footway up his lot to the burying-place, where the town have one acre for that use, and James Herrick is to have the herbage of it.' That entry antedates both the Dongan and Andrus patents many years. Yet no mention of any grant by or on behalf of the town is contained in either of those instruments. Assuming, however, that there had been, prior to the entry of January 5, 1665, a valid reservation or dedication to public use of the old burying-ground,' as both parties have conceded, the principal question is whether the whole of the present inclosure, or only one acre thereof, was embraced in such dedication. The plaintiff's claim is lim

« AnteriorContinuar »