jury unknown; that in truth and ruled and defendant pleaded not in fact the company had not there. guilty. tofore made and effected any such On the trial it appeared that insurance, and that it had not be during the year 1883 defendant come liable to pay such loss, etc. and Thomas Crosby were partners

Second, That on Dec. 10, 1883, in the insurance business at the defendant at the city of Buffalo, city of Buffalo; that they were genfeloniously and willfully, with eral agents for inland marine insurintent to defraud the Thames & ance for the Thames & Mersey MaMersey Marine Ins. Co., Limited, rine Ins. Co., Limited, of England, did draw upon Angus J. McDonald, and the Union Ins. Co.,of Philadelthe general agent of the company, phia; that Crosby was such agent and duly authorized to pay the of the insurance company of the same fronı its money in case the State of Pennsylvania and defenddrawer was entitled to draw upon ant was such agent of the ContiMcDonald as such general agent, nental Ins. Co. of New York. The for the payment of the same, a firm carried on the business of the draft, in the name of Crosby & agency of these four companies. Dimick, general insurance agents, This business was wholly that of etc., for $1,975 payable to their inland marine insurance. The order as such agents, when in truth firm established local agencies and in fact defendant was not, with the approval of and for the nor was his firm of Crosby & companies respectively, and had Dimick, lawfully entitled to draw the power to apportion risks taken as the drawer for such sum, as de- by any one of them by re-infendant well knew, and that he surance between the companies did willfully, feloniously and un- within certain prescribed limits, lawfully and with intent to de- as to all except the Continental, fraud the company by color and which left it wholly to the discreaid of such draft obtain from it tion of its Buffalo general agency. such sum of money, etc.

On Oct. 24, 1883, the local agents Third, That on Dec. 10, 1883, at at Detroit of the Union Ins. Co., the city of Buffalo, defendant felo- insured a cargo of wheat on the niously and with intent to deprive schooner James Wade, consigned and defraud the Thames & Mersey to Buffalo, for $10,500, and reported Marine Ins. Co. of its property it to defendant's firm, who re-inand appropriate the same to his sured $7,000 of the amount in the own use, etc., did secrete, with-Continental. This was done in the hold, take, steal and carry away usual manner by entry upon such from its possession and appropri- report and in the register kept ate to his own use, etc., $4,975 of for such purpose in the office of the money and personal property the firm.

This vessel and cargo of the company, etc.

never reached Buffalo, but sunk Defendant demurred to the in- and were lost in the lake. On the dictment, the demurrer was over- 16th or 17th of Nov. the re-insur

ance in the Continental was alleged in the several counts is larerased, and $5,000 was entered as ceny alleged to have been comre-insured in the Thames & Mer- mitted the same day, in having sey. The proofs of loss were taken and stolen the moneys of afterward furnished to the Union the Thames & Mersey Ins. Co., Co. and it paid the loss through Limited, amounting to and of the defendant's firm and the firm value of $1,975. The statements thereafter drew upon McDonald, in the first and second counts are the general manager in New York of the crime committed in a differCity of the Thames & Mersey, for ent manner or by different means. $1,975, the amount so entered as The first count is within S 528 and re-insurance by it less the discount the second within $ 529. It is not allowed for early payment. This

This necessary to determine here whethdraft was accepted and paid by er the third count would support a him Dec. 17, 1883. The charge in conviction on the facts which were the indictment is founded on the established by the evidence. alleged fact that defendant illeg- That the refusal of the court to ally caused such entry of re-insur- direct the people to elect upon ance after he was advised of the which count they would proceed loss of the schooner, and obtained or ask for a conviction was not ersuch amount of money from ror.

70 N. Y., 38; 75 N. Y., 487; McDonald with intent to defraud Code Civ. Pro.. $ 279. the company.

That the indictment sufficiently Spencer Clinton, for applt. advised defendant of the crime of

Edward W. Hatch, Dist. Atty., which he was charged, and the for respts.

description of the subject of the Held, That the indictment con- larceny as

larceny as “money of a kind and tains the statutory elements requi- description to the grand jury unsite to bring the offense within known, etc,” was sufficient in that of grand larceny, Penal Code, view of the allegation that a more SS 528, 529, and for the purposes of particular description could not be the question of its sufficiency on a given.

given. 16 N. Y., 344. demurrer it is enough that any one That while the evidence justiof the counts is sufficient. 56 N. fied the inference that the schooner Y., 95; 4 Eastern Rep., 897. Each was lost at the time of the re-inof the three counts contains a surance in the Thames & Merstatement of the crime of larceny sey, the important question is as defined by statute, and is suf- whether defendant was apprehenficient for the purpose of pleading, sive, understood and believed that within the meaning of the statute. the vessel was then lost, as while Code Crim. Pro., S$ 275, 276, and SS a valid contract of marine insur283, 284 and 285.

ance may be entered into after the The indictment may be con- loss of the subject of insurance, strued as charging one crime only. its validity depends on the good Code Crim. Pro., $ 279. The crime faith of the parties to the contract,

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and no agency, however general in Held, That the proposition so its terms, would be deemed to em- charged seems to make the conbrace the power to insure property viction of defendant depend upon after knowledge of its loss. That, the fact that the re-insurance in the to constitute the crime of larceny Thames & Mersey was made after with which defendant is charged, the loss of the vessel, and after it was necessary that the re-insur- knowledge or notice to defendant ance be illegal. If the act was of such loss, which in the view within the power of defendant or here taken rendered such re-insurof his firm, as general agents, to ance invalid.

This charge emdo it, the alleged offense could not braces fully the requisite fact in arise out of obtaining from it pay- that respect, but defendant had ment of the amount it was legally the right that the jury be distinctliable to pay, whatever may have ly advised that they could not been the motive of defendant in so convict him under the indictment charging the company with liabil- unless the re-insurance was invalid, ity. The illegality and invalidity whatever may have been his inof such re-insurance is the founda- tent in making it. And while the tion of the charge in the indict- whole charge may be considered ment. Hence the charge of the in aid of the interpretation of its trial court, that “the question several parts, yet when an imporwhether the insurance was legal or tant proposition is erroneously illegal by the re-insurance in the stated to the jury and not distinctThames & Mersey is of no conse- ly withdrawn it does not necessaquence," was error, and a new rily follow that it may not have a trial must be granted unless it is prejudicial effect, although a rule obviated by other instructions to complete in itself for the action of the jury.

the jury is properly charged. 53 Later the court charged, that, N. Y., 165; 55 id., 579; 45 id., 285; “the question of fact for the jury 14 J. & S., 238; 37 Hun, 519. to determine is whether the insur- The court was asked to charge ance was effected in the Thames that if defendant re-insured the & Mersey after notice came to de- vessel after he had notice of the fendant of the loss of the vessel. loss, believing that he had a right If the insurance was effected after to make such re-insurance, no such loss and defendant knew it, crime was committed by him. and with an intent and purpose of Held, That such belief is not indefrauding this company in which consistent with an intent to dethe re-insurance was made for the fraud that company, and in case purpose of benefit of one company of such intent without any right in preference to another, or for the to the act his belief would not proagent's own benefit, or both with tect against the charge of the that intent, a felonious intent, then crime. The question of intent the offense charged in the indict- would still remain for the jury, ment was made out, otherwise not." | and as the absence of intent is embraced in the request there was tion remarked that it was “put in no error in denying it.

evidence for the purpose of showHeld also, That the obtaining of ing what he testified to," and that the money was the consummation it could not be “evidence upon any of the offense, but a necessary ele other point.” The complaint conment of it was also the false repre- tained thirteen alleged causes of sentations in the color and aid of action, and some of them were the draft with the intent to de- founded on alleged grave charges fraud. The acts which produced of misconduct and fraud and bad the apparent liability were done in faith on defendant's part in the Buffalo, and there were made and business of the agency of his firm forwarded the representations, for the Thames & Mersey, and only and the draft on which the money small parts had reference to the was procured. He by this means James Wade, her loss, and the spoke at Buffalo to McDonald in insurance and re-insurance of her New York and received his re- cargo. sponse in Buffalo, and this con

IIeld, That this paper as a whole summated the offense within S

was not competent evidence and 131 of the Code of Cr. Pro. As

As only such parts of it were admissome of the acts constituting or sible as referred to his cross-examrequisite to the offense occurred ination, and while the ruling qualin the city of Buffalo, this case was ified the purpose for which the within the jurisdiction of the Su.

pleading was received in evi. perior Court of that city. The dence, it did not restrict the recepcourts of the city of New York tion to any particular portion less also had jurisdiction of the offense. than the whole of it, and the qual3 Den., 190; 1 N. Y., 173.

ification of its purpose as evidence McDonald, the general manager wholly defeated its effect as such of the Thames & Mersey, was upon the jury, or it produced an sworn as witness for the prosecu- impression upon their minds to the tion. On his cross-examination he prejudice of defendant. 19 N. Y., testified that he had sworn to some 299; 47 id., 186. When incompeof the complaints in civil actions tent evidence may have a tendency referred to. He was then asked

to arouse the prejudice of the jury if he had sworn to certain things it cannot be deemed harmless. 54 particularly mentioned in refer- N. Y., 334. ence to the loss of the James

This rule applies with even Wade, its loss and the time of loss, greater force in criminal cases than and in reference to the risk taken

in civil. thereupon and the re-insurance. The People offered the copy com

Judgment and conviction replaint and “the whole of it" in

versed and new trial granted. evidence, objection to which was Opinion by Bradley, J.; Smith, overruled and exception taken. P.J., Barker and Haight, JJ., The court in overruling the objec- concur.

DECEDENTS. DEBTS. REAL | real estate are instituted by the ESTATE.

executor or administrator. When

a creditor applies for a sale of N. Y. SUPREME COURT. GENERAL

the lands for the same purpose, TERM. FIFTH DEPT.

the creditor's petition must comIn re application of Peter B. ply with Chap. 460, Laws of 1837, Laird et al., creditors, for the sale as amended by Chap. 172, Laws of real estate, respts., v. Russell of 1843, and Chap. 298, Laws of G. Arnold, admr., et al., applts. 1847. 3 Rev. St., 196, $ 59, 5th ed. Decided Oct., 1886.

The petition here avers all the An administrator having purchased a mon

necessary facts, and the surrogate ument for his intestate, the debt is to be acquired jurisdiction. 40 Barb., regarded as a part of the funeral expen- 417. ses, and becomes a charge on decedent's The debt for the monument is to estate.

be regarded as part of the funeral Appeal from order of Surrogates expenses, and it becomes a charge Court, directing the sale of the on decedent's estate. 21 Hun, 110; real estate owned by Ashbel H. 25 id., 4; 59 N. Y., 574; Chap. Arnold at the time of his death, 267, Laws of 1874. for payment of his debts. The So much of the decree as purorder also provided that out of the ports to dispose of the question of avails of such sale petitioners be the costs of the proceeding is not allowed their costs and expenses reviewable on this appeal. The ex. of the proceeding, which were ad- penses of the proceeding are to be justed at $209.38. Petitioners' paid out of the avails of the sale, claim was the amount of the price whether the costs be taxed under of a tombstone sold by them to the the provisions of the Revised Statadministrator in his representa-utes or under the Code of Civil tive capacity and erected in mem- Procedure. All the avails of the ory of the deceased. The estate sale must be brought into court was valued at between $10,000 and and distributed under an order $15,000.

thereafter to be made. The quesDaggett & Norton, for applts. tion of costs is not up on this apBingham & Joslyn, for respts. peal, 63 Barb., 297; and so much

Held, That there is no support of the order as awards costs to for the contestants' objection that petitioners and fixes their amount the surrogate failed to acquire should be stricken therefrom, as jurisdiction of the subject matter the surrogate had no power to because the petition is defective consider and determine that quesfor the reason that it does not set tion prior to deposit of the proforth the facts required by $ 3, ceeds of the sale with the county Chap. 6, Tit. 4, of the second part treasurer, and before decree of of the Revised Statutes. That distribution. 63 Barb., 297 ; Code section applies only when proceed-Civ. Pro., SS 2786, 2563, 3347, subd. ings for the sale of the decedent's 11. See 4 Redf., 325.

Vol. 25—No. 11.

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