made on supposed defects in the record and not on mere defects of evidence. Remedy for defective proof is by way of objection and exception.


Schiffer, applt, v. Pruden, respt.
Decided January 25, 1876.

to commit the prisoner.

A right of dower is not divested by the mere finding of the referee that the wife has been guilty of adultery; it can only be done by a judgment of divorce granted upon such finding. This action was brought to compel the defendant to perform his contract to purchase certain lands, by paying the considThe court charged among other things deed from plaintiff. Defendant objected eration money agreed upon, and taking a that if the jury believed the officer, who that plaintiff was not able to give a good testified that people were fighting and drinking in the prisoner's house and that title. It appeared that the immediate it was a house of prostitution, it was grantor of the plaintiff had, when he conwithin the provisions of the law, but veyed to the plaintiff, and still has, a wife refused to charge that they must find that living. The wife did not join in the deed, the house was a public nuisance, in order and has not at any time released any interest she had in the premises. Plaintiff proved that in an action for a divorce a vinculo brought by D. against his wife on account of her adultery, it was found by the referee that she had committed adultery, as alleged in the complaint, and that D. had also committed adultery, and a judgment of divorce between them was denied and the complaint dismissed; and it was claimed that the finding of the referee was a conviction of the wife of D. of adultery, and that she is thereby barred, or has lost her right to be endowed in these lands-according to the provisions of 2 R. S., § 48, p. 146-which enacts that "a wife being a defendant in a suit for divorce brought by her husband, and convicted of adultery, shall not be entitled to dower in her husband's real estate."

Verdict of guilty.

Counsel for defence moved for arrest of judgment for defect in the proof and error in the charge, which was denied.

A house of prostitution wherein there is fighting and drinking is within the statutory provision for disorderly house. Writ of error to the General Sessions. The prisoner was keeper of a house of ill-fame, which the indictment charged as being noisy, disorderly and a common nuisance, and the evidence showed that

to have been its character.

Mitchell Laird for plff. in error.
B. K. Phelps for defts. in error.

On appeal, Held, That motions in arrest of judgment are made not upon mere defects of evidence, but upon supposed defects in the record itself of which the evidence given on the trial forms no part.

The remedy for defective proof is by way of objection and exception upon the trial; without such an exception, it cannot be raised after conviction in cases of this description.

It was sufficient to bring the case within the offence charged, if it was proved that people were fighting and drinking in the house and that it was a house of prostitution.

Chas. Jones, for applt.
J. Edgar, for respt.

Held, That the word "conviction," as used in said section, means that upon the proof and finding or verdict of the adultery of the wife, the court has given judgment

Opinion by Daniels, J.; Davis, P. J., of divorce against her and dissolved the and Brady, J., concurring. marriage between her and the husband

The prisoner in this case was properly convicted and judgment should be affirmed.

(52 N. Y., p. 593); and that therefore, al- examination of defendant was had, in
though the referee found that the wife of which he admitted the loan from plain-
D. had committed adultery, yet, as tiff, but claimed and sought to show that
she was never adjudged therefor to be di- it had been paid.
vorced from her husband, she is still his
wife, and is entitled to her dower and rights
in his lands, and that this possibility of
dower affects the title tendered and re-
lieves plaintiff from a performance of his

The cause was thereafter referred to
Hon. Wm. Mitchell, Esq., to hear and de-


It appeared on the hearing that large sums of money had been lent to defendant and to his son, both by the plaintiff Judgment of the General Term in favor and by its president, Mr. Marsh, indiof the defendant affirmed.

Opinion by Folger, J.

vidually, (who since said loans and prior
to this action had died) and at various
times payment had been made upon some
or all of these loans by defendant or his
son, or both.


But as to the origin of the loan, to

N. Y. SUPREME COURT, GENERAL TERM, whom, and by whom these payments had
been made, the evidence was very con-

The New York Dyeing and Printing
Establishment vs. Berdell.

Plaintiff introduced the deposition.
Decided December 6th, 1875.
taken on the preliminary examination as
Defendant's admissions of debt in pre-claimed that the $20,000 was part of a
a written admission of the loan by it; and
liminary examination do not con-
clude him under a subsequently
amended answer from showing that
the debt never in fact existed.
Introduction of individual's private
books and papers by one side ren-
ders them competent as evidence for
the other side.

loan formerly made to the Erie R. R. Co.,
some of which that company had paid
back, and that a balance of $20,000 had

been transferred to defendant (a former

This defendant denied, and asserted
that the $20,000 had been loaned to him
by Mr. Marsh, the president, individual-
ly, and not by plaintiff, and offered to
prove this by Mr. Marsh's private check-
book and returned checks, and that the
same had been paid.

Appeal from judgment recovered upon a referee's report.

Complaint, Money lent. Answer, General denial (and payment.) This action was brought to recover a balance of $10,000 on two loans of $20,000 and $11,000, which plaintiff claims to have made to defendant.

Defendant plead payment in full, but afterward amending his answer by consent, plead,

1. General denial.

2. That "defendant had paid and discharged the indebtedness alleged in the complaint," and that plaintiff has received full satisfaction of all the loans and causes of action alleged.

This offer of defendant was refused by
the referee, although plaintiff had intro-
duced in the case a part of Mr. Marsh's
private books, &c.

The referee reported for plaintiff.
D. B. Eaton for respt.

C. E. Tracy for applt.
On appeal.

Held, That defendant was not coucluded by anything that he had previously testified to, or that appeared on the trial, from claiming and proving, if

Under the first answer a preliminary possible, that the $20,000 in suit had, in

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fact, been loaned by Mr. Marsh and not this action, The Mayor, &c., of New

York City, under certain statutes took private property, located in New York City for the purpose of making, keeping and maintaining a public park, to be known as Riverside Park.

by plaintiff. If the proof offered had been received and had been sufficient, that fact would have been established, and the plaintiff in that event prevented from recovering. Mr. Marsh's books had already been introduced in the case, and were competent for defendant's purpose. The proof was admissible under the amended answer, and should have been received. Judgment reversed and new trial ordered.

That in the proceedings instituted for such purpose, the commissioners appointed to make awards for the property so taken as aforesaid, awarded to unknown owners for a plot of land owned jointly by plaintiff's testator and the defendant $. That such money awarded as aforesaid was directed by the court to be deposited with the Chamberlain of the City of New York, and that upon the pe

Opinion by Daniels, J.; Davis, P. J. and Brady, J. concurring.


EXECUTORS AND ADMINISTRA-tition of the defendant an order was made
March 8th, 1873, directing said money to
be paid by the Chamberlain of the city of
New York, to the defendant, which order
Michael H. Cashman, ex'or, &c., appt. November, 1873, leave was granted to this
was obeyed, and that on the 19th day of
vs. Fernando Wood, respt.

Decided January 28, 1876.

plaintiff, to sue for the whole, or a portion of the award aforesaid.

An executor cannot recover an award

The grounds of the demurrer interfor land of the testator taken for pub-posed to the complaint were that the same lic purposes unless it appears by the did not constitute facts sufficient to conwill that such executor had some stitute a cause of action, and that there right to the possession of the land, either as trustee under the will or was a defect of parties defendant. for purposes of administration. In the absence of such allegations in the complaint, the complaint is de murrable for the reason that the land or money awarded for it, is vested in the heirs at law of the testator.

A. C. & E. A. Ellis for applt. Devlin, Miller and Trull for respt. Held, That the plaintiff as executor could not maintain this action on the ground of the power of sale contained in the will. That to entitle the executor to recover the money, it must appear that he has some right to its possession, either for the purposes of administration or as a trustee under the will.

Appeal from order of the Special Term sustaining demurrer to the complaint.

The complaint sets forth the following facts:

That Daniel Cashman departed this That the power of sale as stated in the life seized of certain premises in the com- complaint is a naked one; there are no plaint described, leaving a will by which allegations showing its objects or purplaintiff with others was appointed exe-poses, and none showing that any trust cutor. Such will gave power to his exe- is created by the will, the proper execution cutors to sell and convey any and all of of which would require that the fee of the his real estate. That letters testament- land should be invested in the executor ary were issued to plaintiff, who was the or trustee, nor are there any allegations only executor who qualified. showing that the proceeds of a sale by the

That prior to the commencement of executor are necessary for the purpose of

paying the debts of the testator in due There was no fraud of any kind on part
course of administering his estate.
of A in the transaction.

If the complaint contained proper allegations showing the necessity that the proceeds should come into his hands in his official character for the purpose of carrying out the trusts created by the will, or for the payment of debts in the course of its due execution, the executor under the provisions of the will permitting the sale of the testator's real estate, might have the right to the possession of the money. But on the allegations, as they now stand, we must hold that the title to the real estate, and, consequently, to the money awarded therefor, is vested in the heirs-at-law of the testator.

Held, 1. Plaintiff was entitled to recover of defendant, and that measure of damage is difference between the actual value of horse and what it would have been worth if as represented by defendant.

2. That the law gives the plaintiff the benefit of the contract, and places her Opinion by Davis, P. J.; Brady and with respect to it, and to all her rights Daniels, J. J., concurring. under it, in the same position as if no fraud had been practiced upon her, and as if the horse was as sound and valuable as she had a right from defendant's re

FRAUD. MEASURE OF DAMAGE. presentations to believe it was.


Opinion by Phelps, J.

Order affirmed with $10 costs, and with the usual leave for the plaintiff to amend upon payment of costs.

Agnes Murray v. Nehemiah Jennings. Decided at January Term, 1875. In exchange of chattels, if one party makes false representations as to condition of his property, the other in action for fraud is entitled to recover damages, although he has received full value for his articles. Measure of damage, the difference between actual value and value as represented.

The oxen were immediately after butchered by B and the horse was not returned but retained by A. A brought suit against B for fraud. Defendant B claimed that plaintiff A was not entitled to recover, inasmuch as the oxen were not worth as much to him as the horse was really worth to plaintiff, and that therefore there was no damage to plaintiff.

Judgment in favor of plaintiff for $100 and costs.

A owned a pair of oxen worth $100, which she exchanged with B for a horse which B represented to be perfectly sound, but which was foundered and liable at any time to become lame and unfit for use. If horse had been as represented by B it would have been worth at time of the exchange $225, but on account of the unsoundness it was actually worth at the time of exchange only $125.



Abrams, pltff. in error, v. The People,
defts. in error.

Decided January 28, 1876.

To constitute larceny there must be a
felonious taking and carrying away
of another's property.

Such taking involves trespass, or fraud,
or device in getting possession.
Writ of error to the General Sessions.
The firm of W. C. Browning & Co. had
employed Abrams for several years, to
manufacture clothing for them. As had
been their former custom, they sent him,
in May, 1875, the material for making up
138 cassimere coats. He made up the
coats as directed. He was thereafter in-

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duced, by the persuasions of a peddler, to N.Y. SUPREME COURT.-GENERAL TERM, sell them to him for $400. Of this he paid $300 to the workmen, and with the residue left for California, and was there


There was no evidence tending to show

that he intended to steal or convert these goods when he received them, or that he had obtained the possession of them by any trick or artifice. At the close of the testimony, prisoner's counsel requested the court to direct the jury to acquit the prisoner on the evidence, which was denied.

0. L. Stewart, for pltff. in error. B. K. Phelps, for defts. in error. On appeal, Held, That the only question for consideration is, whether an acquittal should not have been directed for want of satisfactory evidence to go to the jury, of

intent to steal.

Both at common law and by the statutes, there must be a felonious taking to constitute larceny. It is defined by our statutes to be feloniously taking, and carrying away the personal property of another (2 R. S., Edm. Ed. 699, § 63), and such taking necessarily involves a trespass, or such fraud, or device in getting possession of the property, as shows that it was attained without the consent of its owners. But the evidence in this case

showed the bailment of the property; that it was freely delivered to the prisoner without fraud on his part, for the purposes of the bailment; and as such bailee, he not only had the lawful possession of the property, but the lien which the law gives to such a bailee for the payment of the labor bestowed upon the article.

We think that the court ought to have instructed the jury that the evidence was not sufficient to justify a conviction of the crime of larceny.

Judgment reversed; new trial granted. Opinion by Davis, P. J.; Brady and Daniels, J. J., concurring.

Kelly, Plaintiff in error, v. The People, Defendants in error.

Decided January 28th, 1876.

Possession of property fraudulently obtained with felonious intent, title remaining in owner, is larceny. Both possession and title so obtained is "obtaining money under false pretenses."

Error to General Sessions.

Complainant was met by Kelly, who professed to be a passenger on the steamer on which complainant worked, and asked complainant's assistance in getting some liquor aboard ship. When they reached the saloon Kelly borrowed of complainant $50. to pay for the liquor, at the same time leaving with him, as security, five pieces of metal, which had the color, size, and appearance of $20. gold pieces. Kelly told complainant to wait five minutes while he went into the saloon to get the liquor; then went into the saloon and slipped out at the back way with the money. The supposed coin turned out to be worthless. Kelly was convicted.

W. F. Kintzing for plaintiff in error.
B. K. Phelps for defendants in error.
On appeal,

Held. That there is no doubt but that

the prisoner intended to defraud complainant of his property. But still he could not for that reason be indicted and convicted of a crime different from the one which he had committed. The bills were delivered with the owner's intention that they should become the property of returned, but the loan was to be repaid by the prisoner. Those bills were not to be bills of a like amount. The title passed from the owner with his consent, protations. That did not constitute the duced, it is true, by fraudulent represencrime of larceny, but of obtaining money under false pretenses. The distinction, though narrow, is still a material one.

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