furnishing the dimension stone D. O'Brien, Atty. Genl., for and block work required for the respt. buildings and for the cutting of Held, That the acts of 1874 and the same. It was claimed that the 1875 referred to future work and contract was abrogated by Chap. materials and future contracts. 323 of the Laws of 1874 and Chap. Appellant's claim was presented 264 of the Laws of 1875, the appro. more than six years after the paspriation bills of those two years. sage of the act, but less than six The act of 1874 appropriated for years after breach of the contract by “the Buffalo State Asylum for the the officials in charge of the work. insane, to be expended only for the Held, That it was not barred by completion of the buildings already the statute of limitations. commenced, the sum of $150,000.” Decision of Board of Claims reIt also authorized the governor to versed and new hearing ordered. appoint two superintending build- Opinion by Earl, J. All concur, ers to take charge of certain build- except Danforth, J., dissenting, ings in process of construction, and Andrews and Miller, JJ., not among which was the Buffalo

voting. Asylum, "to superintend the construction and completion thereof."

PROMISSORY NOTE. CONSIDThe persons so appointed were vested "so far as the construction

ERATION. of said building is concerned, with N. Y. COURT OF APPEALS. all the duties, powers and respon

Roberts, respt., v. Cobb, exr., sibilities heretofore imposed or con

applt. ferred upon the commissioners or

Decided Dec. 7, 1886. managers heretofore appointed to take care of such buildings respec- A promise to contribute a certain sum totively, which said commissioners ward paying off a church debt upon the

condition that the clergyman would and managers are hereby super

secure the remainder by voluntary subseded as to the powers and duties

scription, which was done, is a sufficient herein referred to. The purchasing consideration to uphold a note given for of the materials and all things

such purpose. connected with the erection of said This was an action upon a prombuilding shall be done by contract issory note. It appeared that prior and all contracts shall be awarded to May 1, 1881, certain persons had to the lowest responsible bidder been engaged in building a church, after being advertised as is now upon which there was a mortgage required by law for the advertising on which there was due about $15.and letting of State work on the 000. An effort was made to pay canals.” The act of 1875 contained this up prior to dedicating the similar provisions as to the pur- church, in which H., the pastor, chasing of materials and letting of was active. About the 1st of May contracts.

he called upon B., defendant's tesJ. F. Parkhurst, for applt. tatrix, an aged lady, who was a

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member of the church, and re- LIFE INSURANCE. HUSquested her to contribute. She

BAND AND WIFE. promised to give $2,500 in cash

N. Y. COURT OF APPEALS. toward the payment of the mortgage if he would secure pledges

Anderson, respt., Goldfor the remaining $12,500. H. Schmidt, applt. promised to make the effort, set Decided Dec. 17, 1886. to work at once and secured

Under Chap. 248, Laws of 1879, a wife has, pledges for the amount required. with the consent of her husband, absoHe then on May 31 called upon B.

lute power to assign or surrender a policy for the amount of her subscription,

on the life of the husband in her favor,

whether there be children or not. and she, finding it inconvenient to

The joining of the husband in such assignpay it in cash, executed the note

ment constitutes a consent thereto in in suit and delivered it to H. B. writing. subsequently paid $500 thereon.

Affirming S.C., 23 W. Dig., 118. The note was indorsed by the This was an action upon an entrustees of the church and deliv- dowment policy of insurance is. ered to plaintiff, who brought this sued to defendant G. by the Geraction to recover the balance. mania Life Ins. Co. upon the life

James M. Smith, for applt. of her husband. The policy was Henry C. Griffin, for respt. payable May 31, 1885, or within

Held, That H. must be regarded sixty days after due notice and as acting for and in behalf of the proof of the husband's death bechurch in procuring pledges to pay fore that time. It also provided the mortgage. That the church that if the wife died before her having made the effort and per- husband the insurance should be formed the condition prescribed by payable “to her children, for their B., her promise became obligatory, use, or to their guardian, if under and the note she gave in fulfill- age; or, if she shall have no chilment thereof is based upon a suf-dren to her executors, administraficient consideration. 1N. Y., 587; tors and assigns.” On February 12 id., 18; 83 id., 14; Pars. on Con. | 15, 1881, the wife and her husband (5th ed.), 452, and notes.

executed an assignment of all Also held, That if H. did not act their right, title and interest in as agent of the church he acted and to said policy to A., plaintiff's for himself in procuring the sub- testator. A. being dead when the scriptions, intending to present policy matured, plaintiff brought the money obtained to the church this action against the insurance for the discharge of its mortgage, company to recover the amount of and there would be an adequate it. An order was made substitutconsideration for the note in suit. ing G. as defendant, and the fund

Judgment of General Term, was deposited in court. G. set up affirming judgment for plaintiff in her answer that the assignment on verdict, affirmed.

was void because she was a marOpinion by Earl, J. All concur. ried woman, with children hav

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ing an interest in the policy, and which declares that an officer of because the assignment was not any bank who knowingly overexecuted in couformity with the draws his account with such bank statute.

and thereby wrongfully obtains James D. Bell, for applt.

the money, notes or funds of such Daniel Nemirs, for respt.

bank is guilty of a misdemeanor. Held, That the husband by unit- Defendant was cashier of the State ing with his wife in executing the Bank of Fort Edward from April, assignment consented thereto in 1871, until the bank closed Sept. writing; that whether there be 9, 1884, about which time a receiver children or not, under Chap. 248, was appointed. He took possesLaws of 1879, the wife has, with sion Sept. 22. An employee of the consent of her husband, abso- the receiver wrote up the accounts lute power to assign or surrender as of Sept. 9. Defendant's book the policy.

showed a debit of $2,583.96. The Judgment of General Term, af- account, among other things, firming judgment for plaintiff, af- showed a debit of $690 Sept. 9. firmed.

There was a check of this amount Opinion by Earl, J. All concur. payable to self or bearer, but dated

July 25, and which the bank once

had, it is claimed. The check, at CRIMINAL LAW. BANKS. the request of the prosecution, N. Y. SUPREME COURT. GENERAL was produced on the trial. At all TERM. THIRD DEPT.

times between July 25 and Sept. 8

the account was overdrawn more The People, respts., v. George

than $1,800. In Dec., 1884, the Clements, applt.

receiver sued for the overdraftDecided Nov., 1886.

$2,583.96. It was paid. The count To convict under $ 600, Penal Code, declar

on which defendant was convicted ing a bank officer who knowingly over- charged him with knowingly overdraws his account and thereby wrong

drawing his account on Sept. 9, fully obtains money, etc., of the bank guilty of a misdemeanor, the obtaining

1884, and thereby obtaining $690. of the money must be actually shown.

The court held that the prosecuIt is not enough that the account is over- tion might prove the overdraft as drawn and that the bank is or has been

of any time between July 25 and in possession of the check of said officer for the amount alleged to have been

Sept. 9. Many exceptions were wrongfully obtained by him ; nor even

taken. that said officer has repaid the said Hughes & Northup, for applt. amount to the bank.

E. Hull, Dist. Atty., for respts. To support a conviction it must also appear

, that the obtaining was wrongful. It is not any and every loan to a bank officer not be sustained. We may assume whose account iş overdrawn which con- (we do not decide them) the fol. stitutes the statutory offense.

lowing facts as being the view Defendant was indicted and con- most favorable to the prosecution : victed under $ 600, Penal Code,

That from and before July 25 to

Sept. 9 defendant's account was ing of money of the bank by a bank overdrawn; that during this time officer whose account is overdrawn the $690 check had not been is a misdemeanor. Banks are estabcharged up; that he knew the con- lished to lend money, and it is not dition of his account; that on Sept. illegal, under certain limitations, 9 the receiver had the $690 check to lend money to officers. Money charged to him ; that judgment loaned on a note is no better sewas recovered against him for the cured than money paid on a check. balance due; that this was paid, and Both are loans evidenced by the that the $690 check was returned to obligation of the borrower. A him with other vouchers. In all bank officer might be rich and the this there is no evidence that de- money lent him be entirely secure. fendant wrongfully obtained the It is the wrongful obtaining which money. It must be shown that makes the offense. The word he obtained the money. This is "wrongful” implies more than capable of proof. The teller could the mere want of funds in the show the payment; or if the cash- bank, because such want of funds ier, defendant, took the money is previously expressed in the stathimself, the cash on that day ute by the word "overdrawn.” would show it. It is true that Judgment and conviction repossession of the check by the versed and new trial granted. bank would prima facie show a Opinion by Learned, P.J.; credit in favor of the bank on an

Bockes and Landon, JJ., concur. accounting between it and defendant. But on a criminal charge PRACTICE. ORDER OF proof must be made. Defendant

PROOF. on July 25 might have owed the

N. Y. COURT OF APPEALS. bank and given it this check as a voucher. This would not show Conselyea et al., exrs., respts., that he obtained money by it from v. Swift, applt. the bank. A check is a direction

Decided Dec. 7, 1886. to pay money and charge the

In an action on a promissory note the drawer with it. This payment in

answer denied none of the allegations of a criminal proceeding must be the complaint, but set up affirmatively proved. Even if the bank once

that defendant was an accommodation

endorser ; that the note was in fact paid had possession of the check (which

out of moneys in the holder's hands apis denied) it is not presumptive

plicable thereto, and, on information, evidence that defendant has had that plaintiffs were not the lawful owners. the money, and the burden is not Held, That defendant held the affirmaon him to disprove this.

tive and had the right to open and close. We also think that to make out The complaint in this action an offense under this section it contained seven causes of action. must appear that the money, etc.,

As to the first six no question was obtained wrongfully. The stat arises. The seventh makes out a ute does not mean that any obtain- | perfect case upon a promissory

Vol. 25—No. 8b.


note against defendant as en- | firming judgment on verdict for dorser, and the answer denied plaintiff, reversed, and new trial none of plaintiffs allegations, granted. but set up affirmatively that de- Opinion by Danforth, J. All fendant was an accommodation

an accommodation concur, except Ruger, Ch. J., and endorser, and that the note was Finch, J., not voting. in fact paid out of moneys in the hands of plaintiffs, testator applicable thereto. Defendant adds

LEASE. TRESPASS. upon information and belief,

N. Y. SUPREME COURT. GENERAL “that the said plaintiffs are not

TERM. FIFTH DEPT. the lawful owners and holders of said note, and that he is not in

Adelbert C. Merritt, applt., v. debted to them thereupon in any

Olive C. Merritt et al., respts. sum whatever." Defendant Decided Oct., 1886. claimed the right to open and close

Assuming (without deciding) that a tenancy the case. This was denied. The

from year to year was created between note was received in evidence the parties, and not merely a contract to

work upon shares, which had been yearly under the objection of defendant.

renewed, yet as the tenant had notified Plaintiffs' counsel was then sworn

the lessor, prior to the commencement of on behalf of plaintiffs and proved another year, that he was going West and the amount of interest due. This would work the farm no longer, and the

latter thereupon entered into a contract was also objected to by defendant.

with another person to work the farm on Plaintiffs' counsel then declared

shares, the former was precluded from his case closed; and defendant

insisting that he was entitled to notice to being called upon to proceed with quit and maintain an action of trespass. his defense declined to proceed

against the lessor and such third party. with the trial or to offer evidence Appeal from judgment entered because the affirmative of the issue upon report of a referee. had been awarded to plaintiffs. Action to recover damages for A verdict was thereupon directed. trespass upon lands. Defendant in favor of plaintiffs.

Merritt was the owner of the lands, James Troy, for applt.

and on the first of April, 1880, enJ. Stewart Ross, for respts.

tered into a written agreement Held, Error; that no allegation with plaintiff to let or lease to him of the complaint was denied by said lands for one year, to work the answer, as none of the facts upon shares, each party to furnish controverted therein were alleged one-half of the seeds for sowing in the complaint; it was therefore and planting, to pay one-half of the for defendant to establish the de- taxes, and to have one-half of the fense set up and he thus held the proceeds. Plaintiff continued to affirmative and had the right to work the farm upon shares until open and close the evidence. Code about April 1st, 1884, when defendCiv. Pro., $ 522.

ant M. entered into an agreement Judgment of General Term, af- with defendant Sutton to work the

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