FIRST DEPARTMENT, JANUARY TERM, 1875. stituting his offense was substantially conceded on the trial, but it was claimed in his behalf that he was at that time insane. The peculiar form of the disease which he was alleged to be affected by, was that of delusion, concerning supposed or assumed danger to the virtue of his wife, and her exposure to improper influences in that respect from the purposes and inclinations of her family relatives. There was evidence given, tending, in some degree, to show that to have been his mental condition before and at the time when the criminal act was charged to have been committed by him. While the defense made in his behalf was by no means a strong one, there was still enough of it, as long as the charge imputed a crime, to render it the subject of consideration and decision by the jury; and it was so regarded, for it was submitted to them in that view by the learned judge presiding at the trial. An important part of the evidence upon this subject, was given by Meredith Clymer, a witness who was sworn and examined on behalf of the prisoner. He was a physician, professing to understand the indications and symptoms of the existence of the form of insanity by which it was claimed the prisoner was affected, and he testified that the facts relied upon in his favor, indicated unsoundness of mind. When the case was submitted to the jury, the. learned judge stated to them, that he "placed no reliance whatever upon Dr. Clymer's testimony, except what is due to the testimony of a sensible and honest gentleman; but I have equal respect for the opinion of you, gentlemen, who, as men of the world, having attained a mature age, and seen life in many of its phases, are quite as competent, perhaps, to pass upon this testimony as experts, as is Dr. Clymer." This was not a positive direction to the jury to disregard the evidence of the witness, although quite a decided opinion that it was their duty to do so. A mere expression of opinion as to the weight or effect of the evidence, which still allows the jury to be guided and governed by their own convictions, forms no proper ground for an exception. That may be proper, and even necessary, under certain circumstances, to enable the jury to give appropriate consideration to evidence requiring their judgment. The evidence of witnesses who are brought upon the stand to support a theory by their opinions, is justly exposed FIRST DEPARTMENT, JANUARY TERM, 1875. to a reasonable degree of suspicion. They are produced not to swear to facts observed by them, but to express their judgment as to the effect of those detailed by others, and they are selected on account of their ability to express a favorable opinion, which, there is great reason to believe, is, in many instances, the result alone of employment and the bias arising out of it. Such evidence should be cautiously accepted as the foundation of a verdict, and it forms a very proper subject for the expression of a reasonably guarded opinion by the court. That is often necessary to prevent the jury from being led astray by giving too much weight to evidence really requiring to be suspiciously watched, and which, in many instances, has induced unwarranted verdicts, discreditable to the administration of justice, as well as exceedingly detrimental to the public interest. When the comments of the court are extended no farther than that, no fault can be found with them on the part of the accused. But in the present case, what was said upon the subject, was supposed by the prisoner's counsel to go so far beyond the mere expression of an opinion, as to constitute a positive direction that the jury should disregard the evidence given by this witness; and an exception was taken to it because it was believed to be of that character. The proposition was presented by the exception, that the court could not properly direct the jury, that no reliance should be placed in Dr. Clymer's testimony, the jury having as much capacity to determine upon that as Dr. Clymer. The statement of the point excepted to, was clear and explicit, that the jury could not be directed to put no reliance on the testimony of this witness. That had not been done, but the point was taken by the exception, that such a direction should not be given. And it was immediately followed by the response, that "There is no more reliance to be placed upon it, than upon the testimony of any other person in this case; I regard you, gentlemen of the jury, as equally skilled, as much skilled, and as able to decide, from the evidence, whether or not the prisoner was insane, as Dr. Clymer." This was more than a mere comment, by way of opinion, as to the effect which might be given to the statements of the witness. It was equivalent to a direction to disregard it, by giving it no weight whatever. And that presented the point taken by the exception, just as effectually FIRST DEPARTMENT, JANUARY TERM, 1875. as if the exception had been again repeated. It was to the controlling direction which in the end was given, that the exception was taken. And, as it was taken to the proposition itself, there was no need of repeating it again after that had been stated by the court. The direction was excepted to, and that is all that is required, to entitle the prisoner to present it for the determination and decision of this court. That it was erroneous, is too clear for doubt. For, under the well settled rules of law, the effect of competent evidence is a matter to be disposed of by the jury, under all the circumstances and probabilities of the case. That is particularly their province in the trial of criminal charges, where the question of guilt is exclusively to be decided by them. And they must be left at liberty to exercise their judgment on the subject, without being controlled by any positive direction by the court.* That freedom was not afforded them, concerning that portion of the case which was affected by the evidence of the witness Clymer. The other exceptions presented by the prisoner's counsel, do not appear to rest upon any substantial foundation; but if either of them could be plausibly supported, it would be unnecessary to consider it, as long as the one referred to will necessarily require another trial of the indictment. The judgment of the court of General Sessions should be reversed, and a new trial ordered. DAVIS, P. J.: The evidence of medical experts is admitted on questions of insanity, on the ground that jurors are not deemed equally skilled, or as much skilled, and as able to decide whether the alleged insanity existed, as are such experts. The law holds that there is more reliance to be placed upon their opinions than the same testimony given by other persons, and therefore it does not permit other persons to give the same kind of evidence. The jury is, in all cases, to determine what weight is to be given to such testimony; but to instruct them that the opinion of experts is entitled to no weight, or to no greater weight than the opinions of persons not allowed to give any, or to instruct the jury that they are deemed *1 Greenl. on Ev. (12th ed.), § 49 and note, § 160; Firemens' Ins. Co. v. Walden, 12 John., 513, 519; People v. Quin, 1 Parker Crim. Rep., 340; Breen v. People, 4 id., 380; Duffy v. People, 26 N. Y., 588. FIRST DEPARTMENT, JANUARY TERM, 1875. equally skilled and as able to decide from facts proven, whether such facts are indications of the disease known as insanity, as experts in that branch of medical science, is to overturn the theory of the law and the established rules of evidence on that subject. I think the learned recorder committed a serious error in his charge. My only difficulty is, in holding that the exception reached the error. But I am inclined to think that the safer course is to apply the exception to the instruction given, which was immediately enunciated in response to the exception. I shall concur therefore with my brother DANIELS. BRADY, J., concurred. Judgment reversed, and a new trial ordered. THE PEOPLE EX REL. JAMES DOYLE, RESPONDENT, V. Incorporation-presumption of — Writ of mandamus — its use to restore corporator to membership—Notice of trial for violation of by-law — By-law requiring member to join in strike-void as against public policy. Where a society is proceeded against by a name not inappropriate as a corporate designation, and the application is resisted by it in that name, and no denial of its corporate character is contained in the papers, it will be presumed that it is in fact a corporation. It is a proper use of the writ of mandamus to restore a person to membership in a corporation from which he has been improperly expelled. The by-law of the society provided that no member should be expelled until he had been notified to appear and show cause. The plaintiff received no notice until after a fine had been imposed upon him for an alleged misconduct, and that notice was simply to appear and pay the fine or show cause. He was tried by a committee of the society without notice of the charge on which he was fined, or opportunity given to him to defend himself against it. Held, that this could not, on general principles or under the by-law, justify his expulsion. By-laws of a society which forbid a member to work at his trade at such prices as he chooses to accept, and compel him to join in a "strike" by punishing him for refusing so to do, are void as against public policy. (DAVIS, P. J.) HUN-VOL. III. 46 3 361 29ap251, 3h 361 84 AD 238 84 AD 239 FIRST DEPARTMENT, JANUARY TERM, 1875. APPEAL from an order directing a writ of peremptory mandamus to issue, requiring the appellant to reinstate the relator in all the rights, privileges and benefits which, under the constitution and by-laws of the defendant, a society formed for benevolent purposes, belong to a member of it in good standing. S. B. Garvin, for the appellant. The remedy by mandamus is granted only when there is no other, to prevent a failure of justice. (Clark v. Miller, 54 N. Y., 534.) Plaintiff's proper course is to bring his action. (People ex rel. Dilcher v. German Church, 53 N. Y., 103.) Where a voluntary association have jurisdiction, the courts will not interfere, but regard their decision as final and conclusive (Connitt v. Dutch Church, 54 N. Y., 551); and whatever the decision of the society, whether just or unjust, there is no appeal except such as is provided in the by-laws of the society. It is like an award-just as valid and conclusive as a judgment. (12 N. Y., 9; 9 Johns., 212; 14 id., 96.) Breen & Gearon, for the respondent. Under the constitution and by-laws of this society, and under the laws of this State, the relator was entitled to due notice and an opportunity to be heard in his own defense, against any charge that might be made against him. (See MS. opinion of Judge BARRETT in The People ex rel. O'Dowd v. N. Y. Benevolent Society of Operative Masons; MS. opinion of Judge INGRAHAM in The People ex rel. Corrigan v. Y. M. Father Matthew T. A. B. Society.) DANIELS, J.: Although it was not distinctly alleged in the affidavits used in support of the application for a peremptory writ of mandamus, that the society was a corporation, they must be accepted as sufficient in that respect, in the disposition of the present appeal, because no objection was made to them, as defective on that account, when the application was heard upon them by the Special Term. If it had then been made, it is probable that it could have been removed by supplying legal evidence of the fact at that time, under such terms as could then have been prescribed. For that reason, the objection should now be treated as waived by the omis |