FOURTH DEPARTMENT, JANUARY TERM, 1875.

of it regular, and ordered a verdict for the plaintiff, and this appeal is from that judgment.

The General Term held, that, if right in holding, on the appeal from the order, that the judgment was regular, the ruling at the circuit, in giving effect to it, was right, and could not be disturbed. Although that decision of the motion might not be strictly res adju dicata upon the question of the validity of the judgment, yet, the court having arrived at its conclusion, after due deliberation and examination, would not allow the question to be again discussed before it, unless it was satisfied that the former decision was clearly erroneous, which it was not.

Opinion by Mullin, P. J.

Judgment affirmed.

COMFORT ELWELL AND PETER P. POST, EXECUTORS, ETC., OF JERRY BLAIN, DECEASED, IN BEHALF OF THEMSELVES AND ALL OTHER CREDITORS OF THE ESTATE OF ELHANAN VAN LIEW, DECEASED, APPELLANTS, v. STEPHEN V. R. JOHNSON, ABRAHAM B. JOHNSON, IMPLEADED, ETC., RESPONDENTS.

Demurrer-action in behalf of plaintiff and all other creditors—what complaint in must contain.

AN appeal from an order sustaining a demurrer to the plaintiffs' complaint.

The action was brought by the plaintiffs above named, in behalf of themselves and all other creditors of the estate of Elhanan Van Liew, upon the theory that the defendants, the administrators, are trustees, by virtue of their office as administrators, and the defendants, Stephen V. R. Johnson and Abraham B. Johnson, are trustees in invitum of a fund arising from the sale of lands in Michigan for the payment of the debts of Van Liew, and that the plaintiffs and others are the cestui que trust of that fund, as creditors of Van Liew's estate. The defendants demurred on the ground that the complaint did not state facts constituting a cause of action.

FOURTH DEPARTMENT, JANUARY TERM, 1875.

The General Term was of opinion that the complaint was defective, 1st. So far as the plaintiff sued in behalf of other creditors, because it did not allege that there were any other creditors; 2d. Because it neither alleged that the plaintiffs were judgment creditors, nor any facts upon which a judgment could be given in their favor. That if it be not necessary to show in such case that the indebtedness has been previously adjudicated upon, the complaint must at least state the facts upon which the original indebtedness can be adjudicated upon in this action. The complaint in this case simply alleged that the plaintiffs, as executors, were creditors of the estate of Van Liew, in an amount which they "leave for the proof to determine."

The case of McCartney v. Bostwick (32 N. Y., 52) was distinguished, so far as it tended to show that it was not necessary to have recovered a judgment before bringing this action, as in that case no legal remedy existed.

McDonald & Rose, for the appellants.

Charles A. Hawley, for the respondents.

Opinions by GILBERT and DWIGHt, JJ.

Order affirmed, with costs.

Cases

DETERMINED IN THE

SECOND DEPARTMENT

AT

GENERAL TERM,

February, 1875.

THE PEOPLE OF THE STATE OF NEW YORK v. ROYAL SAMMIS AND RUDOLPH SAMMIS.

THE SAME v. ROYAL SAMMIS AND GEORGE B. BANKS.

Venue-change of — affidavits for — what must state.

When an accused person applies to change the place of trial, he must make a clear case, that, by reason of popular passion or prejudice, he cannot have a fair and impartial trial in the county where the venue is laid.

Affidavits stating the belief of persons that a fair trial cannot be obtained, are not sufficient. Facts and circumstances must be stated.

APPEAL from an order at Special Term, denying the defendants' motion for a change of the place of trial.

John R. Fellows and Charles W. Brooke, for the defendants. That a fair and impartial trial, by any means within the reach of the law, cannot be had in the county in which the venue was laid, is a sufficient reason for changing the place of trial in a criminal case. (The People v. Long Island Railroad Co., 4 Parker, 604; The People v. Webb, 1 Hill, 179; The People v. Mary Bodine, 7 Hill, 147; The People v. Rulloff, 3 Park. Cr. 401.) The venue should be changed in a criminal case where the evidence of public

SECOND DEPARTMENT, FEBRUARY TERM, 1875.

excitement against the applicant is strong, although no actual experiment has been made by way of trying the cause, or even impanneling a jury, where such venue had been originally laid.

Francis C. Barlow, for the people. It is a fundamental principle of the common law, that all persons accused of crime shall be tried by "a jury of the vicinage." The motion should be granted only "on clear proof that the cause cannot be tried with safety to the defendants." (People v. Vermilyea, 7 Cow., 139.) The grounds for removal must be "clearly established." (People v. Bodine, 7 Hill, 148.) It is the capacity of the people to judge fairly, that is to be inquired into, not their actual beliefs. Facts only can be considered. (People v. Bodine, 7 Hill, 148; Rex v. Harris et al., 3 Burr., 1330; S. C., 1 Bl. Rep., 378; Chitty's Cr. Law, 200; Roscoe's Cr. Ev., 236; The People v. Vermilyea, 7 Cow., 137, 138, 139; The People v. Webb, 1 Hill, 179; People v. Wright, 5 How., 28; 2 Wend., 251.) The belief must be as to the whole case, and not as to an isolated fact. (See 3 Wharton Crim. Law, § 3100; 27 N. Y., 336; 9 Iowa, 188.) In People v. Wright (5 How., 25) the motion was denied, on facts very similar to those of the case at bar. (State v. Burris, 4 Har., 584.) "Great indignation and excitement relating to the crime is not enough."

BARNARD, P. J.:

person

No sufficient case is made to change the place of trial upon these indictments. It is the right, both of the people and of the accused of crime, to have the trial take place in the county where the crime is alleged to have been committed.

When an accused person applies to change the place of trial, he must, under all the cases, make a clear case, that, by reason of popular passion or prejudice, he cannot have a fair and impartial trial in the county where the venue is laid.*

Affidavits stating belief of persons that a fair trial cannot be obtained, are not sufficient; facts and circumstances must be established by the moving papers. The only facts established by the defendants in this application, are, that great excitement exists in Suffolk county, in reference to an inhuman and nameless outrage

* People v. Vermilyea, 7 Cow., 139; People v. Bodine, 7 Hill, 147. HUN-VOL. III.

71

SECOND DEPARTMENT, FEBRUARY TERM, 1875.

on Charles G. Kelsey; that the public newspapers in the town of Huntington, where the crime was committed, have had articles, more or less expressing the popular passion.

I fail to discover that any passion or prejudice exists as to the guilt of any particular person. If the fact be, that a proposed juror has made up his mind as to the portion of the body found in Huntington bay being the remains of Charles G. Kelsey, such juror can be set aside, as having made up an opinion upon a disputed fact essential to the guilt of the accused. There is no such a state of feeling shown by the papers, as to authorize us to say that a jury of Suffolk county cannot patiently hear and justly consider and decide upon the evidence which may be adduced before them on the trial of these defendants. The order should be affirmed.

Present- BARNARD, P. J., TAPPEN and DONOHUE, JJ.

DONOHUE, J., dissented.

Order affirmed, without costs.

MARIUS A. SORCHAN AND CAROLINE M. SORCHAN, TRUSTEES, ETC., APPELLANTS, V. THE CITY OF BROOKLYN, RESPONDENT, IMPLEADED WITH GEORGE W. MAHONEY. Assessments-failure to comply with statute in making-when sale under, is not vitiated by-Proceedings of assessors - how reviewed.

Where a statute, regulating the imposing of assessments, directs that a certificate of the costs and expenses of the work be filed with a public officer, and such officer does not lay the assessment, but the certificate is directed to be given to him, merely to enable him to act intelligently in matters not connected with the assessment in question; held, that the failure to give such certificate does not vitiate a sale had under the assessment.

The manner in which assessors, having jurisdiction of the subject-matter, perform their duty, cannot be reviewed collaterally, but must be reviewed by direct appeal from their determination.

APPEAL from a judgment in favor of defendant, entered on the decision of the court at Special Term, in an action brought to have