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(148 N.E.) "Article I.

that Stilwell was charged "with the crimes "The provisions of the said tenth article are

of embezzlement and fraud by a bailee, hereby made applicable to the following addi- agent, and trustee (known in the laws of the tional crimes: *** 3. Embezzlement; larceny; state of New York as grand larceny in the receiving any money, valuable security, or any first degree and violation of section 956 of other property, knowing the same to have been the Penal Code of the state of New York)." embezzled, stolen, or fraudulently obtained. He also had a copy of the indictment con4. Fraud by a bailee, banker, agent, factor; taining the three counts, the third setting trustee, or director or member or officer of any company, made criminal by the laws of both forth fully the acts constituting a violation countries.

of section 956 of the Penal Law, in that the "Article III.

defendant as a broker had in his possession "No person surrendered by or to either of the stock of the Oklahoma Producing & Refinhigh contracting parties shall be triable or be ing Corporation of America belonging to a tried for any crime or offense, committed prior customer named Robert E. Lyendecker, and to his extradition, other than the offense for that the defendant for his own benefit diswhich he was surrendered, until he shall have posed of it without the owner's consent. The had an opportunity of returning to the coun- magistrate must also have read the depositry from which he was surrendered."

tions constituting the evidence sustaining In accordance with these treaty terms, the

these charges. He formed his conclusions President of the United States on the 13th and then acted. He decided that, on such day of November, 1923, issued his warrant evidence, the prisoner would be committed to certain named officers of the New York for trial, had the thing happened in England. police force, authorizing them to receive This means that the facts alleged constitutStilwell from Great Britain and bring him ed a crime under the laws of England. back for trial. Annexed to the warrant were

The point which the relator makes is that all the extradition papers, including exempli- while larceny and embezzlement are concedfied copies of the sections of the New York ed to be crimes in both countries, there is no Penal Law under which the indictment was

evidence to show that the wrongful hypothefound; properly certified depositions of the cation of stock certificates by a broker is witness, showing that these provisions of a crime in England as well as in New York, law had been violated by the defendant; al. Article 1 of the treaty of 1889 above given so a copy of the indictment and the warrant refers to fraud by a bailee or agent made of arrest issued thereon. The formal request criminal by the laws of both countries. of the district attorney to the Governor of We must presume that the London magisthe state, and the application of the Gover-trate did his duty, and found that the facts nor to the Secretary of State of the United alleged in the third count of the indictment, States for the requisition of Stilwell were

and referred to in the President's warrant also a part of the requisition papers.

as "violation of section 956 of the Penal All of the documents were presented to the Code,” would also violate the law of Engmagistrate in the Bow Street Magistrate's land, if committed there. If they would not, Court, London. He examined them, read the he should not have certified for the prisondepositions, and directed the detective from er's surrender. The papers clearly stated Scotland Yard, “who had the defendant,” to that Stilwell would be tried for hypothecatturn him over to the United States agents. ing securities if he were returned. The highThe British authorities issued a warrant for er courts might have reviewed the deterStilwell's return, which was given to the de- mination of this magistrate; we cannot. tective from Scotland Yard. These are the His determination in the absence of fraud is facts as they appear in the record on this conclusive upon the courts of this country. appeal.

Under the terms of the treaty the duty of When these papers were handed to the determining whether the charge made magistrate in London, what was his duty? against the relator came within the proviAccording to the treaty he was to have the sions of the treaty was laid upon the Engļish prisoner brought before him, examine the magistrate and executive authorities, and evidence of criminality to see if it would their decision cannot be questioned. The justify commitment for trial in England, if officials of both countries must concur in the the offense had been committed there, and, conclusion that the offense charged is includif satisfied, to certify the fact to the prop- ed in the crimes named or referred to in er executive authority so that a warrant the treaty before the fugitive will be surmight issue for the surrender of Stilwell. rendered. The chief executive of the United

In the performance of this duty, what did States, acting through the Secretary of State, the magistrate read and examine? He had requisitioned for the return of Stilwell as in his hands the President's warrant stating an offender against the laws of New York


state, specifying section 956 of the Penal , always have the same nomenclature in difLaw as the crime he had committed. The ferent countries; they are not all the same authorities of this country certainly be- in our various states. Thus it is stated in lieved the section one which was covered by Russell on Crimes and Misdemeanors (Stb the treaty. The proper officials of England Edition) vol. 2 (1923) p. 1187, that a person examined the charge and surrendered the in lawful possession of personal property as prisoner. Surely they must have acquiesced bailee who fraudulently converts the same in this interpretation, and have considered to his own use steals the same and is guilty that the crime defined in section 956 was an of larceny. Hypothecation of securities unextraditable offense as well as the larceny der the circumstances of this third count charges.

would apparently be larceny in England. These determinations by the judiciary and Thus the offense is a crime in both counthe executives of both countries are conclu- tries. The orders appealed from must, theresive upon two points: First, that he was fore, be affirmed. extradited for the crime described in section 956 of the Penal Law of this state; HISCOCK, C. J., and CARDOZO, POUND, and second, that it was an extraditable of- MCLAUGHLIN, ANDREWS, and LEHMAN, fense according to the treaties between this JJ., concur. country and Great Britain. Cohn v. Jones (D. C.) 100 F. 639; Matter of Rowe, 77 F. Orders affirmed. Rep. 161, 23 C. C. A. 103; Greene v. United States, 154 F. 401, 85 C. C. A. 251. The cases of United States v. Rauscher, 119 U. S.

(240 N. Y. 463) 407, 7 S. Ct. 234, 30 L. Ed. 425, and People

SIMONS V. BERRY. ex rel. Young v. Stout, 81 Hun, 336, 30 N. Y. S. 898, affd., 144 N. Y. 699, 39 N. E. 858, (Court of Appeals of New York. July 15, are not applicable. In the Rauscher Case

1925.) the defendant extradited upon the

Trade unions Cm4 - Denial of privileges of charge of murder on the high seas under sec

association without hearing on notice ention 5339 of the United States Revised Stat

joined in absence of remedy by appeal. utes (U. S. Comp. St. $ 10445). He was not

Where unincorporated association provides tried on that charge, but rather upon an in- for expulsion only upon written charges, and dictment under a different section, section after hearing upon notice, an order denying 5347 of the Revised Statutes (section 10464), privilege of membership to an individual withcharging him with cruel and unusual pun- out a hearing upon notice may be enjoined in ishment of the same man whom he was al equity, in absence of any show of provision leged to have murdered. The crime for

in constitution or by-laws of association grantwhich he was tried was not specified in the ing member remedy by appeal to any organ

within association. requisition papers. He was extradited for one offense and tried for an entirely differ

Andrews and Lehman, JJ., dissenting. ent crime. So, also, in the Young Case. The defendant was indicted in New York for as- vision, First Department.

Appeal from Supreme Court, Appellate Disault in the first degree, and also assault in the second degree. Ile was extradited sole Suit by David Simons against George L. ly for the specified crime of “assault with Berry, as president of the International intent to commit murder." On his trial he Printing Pressmen's and Assistants' C'nion of was acquitted of assault in the first degree, North America. From a judgment of the Apand convicted of assault in the second de- pellate Division (211 App. Div. 704, 208 x. Y. gree. On habeas corpus proceedings he was

S. 204) reversing an order of the Special discharged on the ground that the court had Term denying. defendant's motion for judgno jurisdiction to try him for a crime not ment on the pleadings and granting the mospecified in the treaty, and for which a de- tion and dismissing the complaint, the plainmand had not been made. Personally, I

tiff appeals. Reversed. doubt if the courts would go so far in this A. Spencer Feld, of New York City, for apday of better understanding and more friend- pellant. ly relationships between these two countries. Leo J. Rosett and Joseph Fischer, both of The wrongful pledging of securities by a

New York City, for respondent. broker for his own use and purposes is so closely akin to larceny, even if it be not CARDOZO, J. From the inartificial and larceny, that we would be much surprised indefinite allegations of the complaint, we to find that such acts constituted no offense think these facts are be gathered in obediin Great Britain. Criminal offenses do not ence to the rule that exacts a liberal con

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(148 N.E.) struction: Plaintiff was a member in good , of knowledge or information was not enough standing of the defendant's union, an unin- to make out a right to a compulsory reference. corporated association, and subject to expul- | 3. Reference Emo 27–Plaintiff has burden of sion only upon written charges, and after a

satisfying court that something more than hearing upon notice. No charges have been

mere examination of a long account will be made against him, and no hearing has been - involved. given. None the less, the defendant's officers

Plaintiff, applying for a reference, bas bur-
have notified the other members to refuse to den of satisfying court that something more
work with him on the ground that he has will be involved than mere formal proof of
ceased to be a member, and in so doing have existence of a long account.
made it impossible for him to find employ-
ment in his trade. The charge in brief is / 4. Reference Ow8(1)-Plaintiff held not en-

titled to compulsory reference.
that he has been denied the privileges of
membership, though never legally expelled.

In suit to recover 41 semiannual installA cause of action is here stated for equitable ments of interest on a mortgage, and 21 separelief. So far as the complaint shows, there fendant had agreed to pay, pleaded as 62 sepa

rate premiums for fire insurance, which deis no provision in the constitution or the by- rate causes of action, with defendant denying laws whereby plaintiff has a remedy by ap- knowledge or information, plaintiff held not enpeal to any organ within the association. titled to compulsory reference under Civil Loubat v. LeRoy, 40 Hun, 546, 549. Equity Practice Act, $ 466. will enjoin the denial to a member of the privileges of membership, where the denial, Appeal from Supreme Court, Appellate Di. if continued, will work irreparable injury: vision, Second Department. The judgment of the Appellate Division

Action by the Brooklyn Public Library should be reversed, and the order of the Spe- against the City of New York. From an cial Term affirmed, with costs in the Appel- order of the Appellate Division of the Sulate Division and in this court.

preme Court (212 App. Div. 878, 208 N. Y.

S. 837) in the Second Judicial Department, HISCOCK, C, J., and POUND, MCLAUGH. affirming an order of the Special Term, LIN, and CRANE, JJ., concur.

granting plaintiff's motion for the appoint

ment of a referee, defendant appeals by perANDREWS and LEHMAN, JJ., dissent.

mission, and the Appellate Division certifies

a question. Order of Appellate Division and Judgment reversed, etc.

Special Term reversed. Question answered in negative.

The Appellate Division certified the fol

lowing question: (240 N. Y. 465)

“Does the record make out a proper case BROOKLYN PUBLIC LIBRARY V. CITY for the granting of an order for a compulsory

reference?" OF NEW YORK.

George P. Nicholson, Corporation Counsel, (Court of Appeals of New York. July 15, of New York City (John F. O'Brien and El1925.)

liot S. Benedict, both of New York City, of 1. Reference m8(1)-Compulsory reference counsel), for appellant.

Meier Steinbrink and Frank E. Johnson, not ordered on showing that several items of an account will become centers of independ- both of Brooklyn, for respondent. ent controversy: A compulsory reference will not be ordered

CARDOZO, J. Plaintiff and defendant er. on the showing of a mere possibility that sev ecuted a contract on June 5, 1903, whereby eral items of an account will become centers of defendant undertook to appropriate and pay independent controversy, it being necessary such sums as were requisite for the proper that there be a reasonable probability, when I maintenance of the libraries under plaintiff's courses and tendencies of trial are charted in administration, including therein insurance advance, that such will be the true develop charges and interest upon mortgages. It is

stated in the complaint that between Octo2. Reference 8(6)-Reference not justified, ber 30, 1903, and October 29, 1923, plaintiff because defendant had put plaintiff to its paid to the Brooklyn Trust Company 41 proofs.

semiannual installments of interest on a In suit to recover 41 semiannual install- mortgage covering the library building, and ments of interest on mortgage, and 21 sepa

on 21 separate occasions paid premiums for rate premiums paid for fire insurance, that fire insurance. This action is brought to redefendant put plaintiff to its proofs by denial cover the payments so made, each semi

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annual installment of interest and each in- , is not enough to make out a right to this surance premium being pleaded as a sepa- relief. rate cause of action, 62 in all. The answer

"The examination of a long account, which denies that the defendant has any knowledge

the Code contemplates, is something more or information sufficient to form a belief in than mere formal proof of its existence.” respect of the making of the payments, and Cassidy v. McFarland, 139 N. Y. 201, 206, 34 as to all but 15 of the items pleads the stat-|N. E. 893, 894. ute of limitations.

The question is whether the trial will in The plaintiff, applying for the reference, volve the examination of a long account has the burden of satisfying the court that within the meaning of the statute (Civ. Prac. something more will be involved. The burAct, § 466). The interest payments, 41 in den is emphasized by the form of the denial. number, accrued periodically under a single The defendant is content to allege that it has mortgage. The few variations in amount no knowledge or information sufficient to are referable to groups of years. The insur- form a belief. ance payments, 21 in number, show greater diversity, not improbably for the reason that is no witness, or other source of proof" known

"It must, therefore, be presumed that there the policies were issued for periods of years. to it at this time, “by means of which the falThe suggestion is made in the moving affi-sity of the plaintiff's demand can be establishdavit that the variations in amount “may” ed,” for otherwise it "could not have truthresult in variations of the grounds of con- fully made this statement on oath.” Cassidy v. troversy. The defendant in an opposing affi- McFarland, supra. davit disavows any present intention to wage the battle on such lines.

We do not mean that the form of the de. “The files and records of plaintiff should nial is to be treated as decisive. It is a show, without any searching inquiry or extend circumstance to be considered in gauging ed examination, just how much was disbursed probabilities. We find nothing here to di. by plaintiff and for what purpose."

minish its significance. In saying this, we

do not overlook the statement in the oppos[1-3] A compulsory reference will not be ing affidavit that the trial “will not reordered upon the showing of a mere possi- quire more than three days.” The forecast bility that the several items of an account has relation to the presentation of the case will become centers of independent contro- in its entirety including the arguments of versy. Spence v. Simis, 137 N. Y. 616, 617, counsel upon questions of law that will be 33 N. E. 554. There must be a reasonable presented as to the construction of the conprobability, when the courses and tenden- | tract. Such an estimate of time is too uncer. cies of the trial are charted in advance, that tain and indefinite to lay a basis for a hold such will be the true development. We think ing that the formal proofs when offered will the plaintiff fails to satisfy this test. An as. be the subject of resistance. The affidavit, pect of complexity has been given to the case taken as a whole, leaves no escape from the by pleading every item as a separate cause conclusion that resistance has been planned of action. The true proportions of the con- along other lines and courses. troversy would be visible, if the interest [4] We hold that the plaintiff has failed to payments had been grouped in one count, bear the burden of making out a reasonable and the insurance premiums in a second. likelihood that the jury will find it necessary Uniformity would then be obvious where to discriminate one item from another and there now appears to be diversity. It is form a judgment as to each. At most there surely a far-fetched prediction that foresees has been made out, not likelihood, but posa separate ground of challenge in payments sibility. A different situation would be here, recurring semiannually under the provisions if the evidences of payment were shown to of a single mortgage. The mortgagor is a be intricate or uncertain or subject to conpublic library and the mortgagee a trust flicting inferences or even lacking in unicompany. Between parties so circumstanc- formity, so that the probative quality might ed, vouchers for any payments that have reasonably be supposed to differ in respect heen made will almost surely be available. of different items. Surprises, indeed, may The defendant disclaims either knowledge or develop on the trial. Contests, not now foreinformation that would lead it to contest seen, may conceivably emerge. There may them. What has been said of the interest be hand to hand conflicts of scattered or isopayments may be said with little, if any, lated groups where we look for an assault in abatement in respect of the payments for mass. If such a situation shall develop, the the premiums. True it is that the defendant trial judge will be competent to deal with has put the plaintiff to its proofs, but that by halting the trial and sending the parties

(148 N.E.) to a reference. Our holding is limited by r of the estate of Louise Montes, deceased, the probabilities disclosed.

was impleaded, and in which Philip BerThe order of the Appellate Division and lozheimer, Chamberlain of the City of New that of the Special Term should be reversed York, was adjudged in contempt. From with costs in all courts, the motion de an order of the Appellate Division (209 N. nied with $10 costs, and the question certi- Y. S. 942), affirming an order of Special fied answered in the negative.

Term, adjudging the chamberlain in con

tempt, he appeals. Affirmed. POUND, MCLAUGHLIN, CRANE, AN

George P. Nicholson, Corporation CounDREWS, and LEHMAN, JJ., concur. sel, of New York City (William E. C. Mayer HISCOCK, C. J., not voting.

and John Lehman, both of New York City, of

counsel), for appellant. Orders reversed, etc.

Harry M. Lewy, of New York City, for respondents.

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POUND, J. [1] On May 15, 1912, in a par

tition action it was adjudged that the defend(240 N. Y. 470)

ant Harry Montes, the owner of an undividYOUNGS V. GOODMAN et al. ed share of the premises in suit, was entitled

to receive a fixed share of the proceeds of (Court of Appeals of New York. July 15,

sale, subject to the inchoate right of dower 1925.)

of the defendant, his wife, Louise Montes, 1. Contempt 25—Chamberlain, refusing to therein. It was thereafter ordered that the make payment, ordered by court adjudged in chamberlain pay to Harry E. Montes $5 · contempt.

687.76 and to Louise, his wife, $1,633.81 as In partition, named sum was adjudged and and for a gross sum to which she was endirected under Code Civ. Proc, 8 1570, to be titled in lieu of her dower interest. The paid wife of one defendant. Wife died without right of dower was sold, but the wife did claiming fund, and husband thereafter obtained not appear in the action, Under Section ex parte order directing money to be paid to 1570, Code of Civil Procedure, the amount him. Order was subsequently vacated, and thus fixed was directed to be paid over to chamberlain was directed to pay it to adminis- her. She died some years thereafter without trator of wife. Held, that order directing payment to husband was void in its inception and claiming the fund. The husband then obwas not final order, and under Civil Practice tained an ex parte order of the Supreme Act, $ 588, subd. 3, was reviewable only by Court directing the money to be paid to leave of Appellate Division, and that chamber- him. The chamberlain paid the money purlain, having paid money to husband, and refus- suant to the order. In Youngs v. Goodman, ing to make payment to administrator as or- 199 App. Div. 281, 192 N. Y. S. 3, the order dered, was in contempt.

under which the chamberlain paid the mon2. Dower w36_Since right of wife of defend- ey to the husband was vacated as having ant in partition to dower abated at her death, been inadvertently made. The chamberlain where she took no proceedings to withdraw was a party to the motion, In Youngs v. fund, right thereto likewise abated.

Goodman, 202 App. Div. 690, 195 N. Y. S. Since the rights of wife of defendant in 476, the chamberlain was directed to pay the partition to dower terminated with her death, money to the administrator of the wife. It where she took no proceedings to withdraw was held that the order, directing the payfund, right thereto abated at her death.

ment of the money to the husband, was void 3. Judgment Qua 297 - Judgment on partition

in its inception, and that the chamberlain held subject to modification, so long as court could not justify thereunder. These orders had control over fund.

were not final orders in the action and were Where in partition, it was adjudged that subject to review by this court only by leave defendant was owner of undivided share and of the Appellate Division on questions certiwas entitled to fixed share of proceeds of sale, fied (Civ. Prac. Act, 8 588, subd. 3), which subject to inchoate right of dower of his wife, was refused. The chamberlain has had his judgment was subject to modification, so long day in court. He has refused to make the as court had control over fund derived from payment ordered by the court. The order such sale.

under which he paid the money to the hus.

band has been declared void. He is thereAppeal from Supreme Court, Appellate

fore in contempt, and the order must be afDivision, First Department.

firmed. Action by William H. W. Youngs against [2, 3] While we are thus constrained to Clarissa Goodman and others, in which Wal- affirm, the result does not seem right or just. ter G. Herbert, as ancillary administrator The order, directing the chamberlain to pay

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