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.

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.

The court charged among other things that if the jury believed the officer, who testified that people were fighting and drinking in the prisoner's house and that it was a house of prostitution, it was within the provisions of the law, but refused to charge that they must find that the house was a public nuisance, in order to commit the prisoner.

Verdict of guilty.

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

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.

[blocks in formation]

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 considdeed from plaintiff. Defendant objected eration money agreed upon, and taking a that plaintiff was not able to give a good

title. It appeared, that the immediate grantor of the plaintiff had, when he conyeyed to the plaintiff, and still has, a wife living. The wife did not join in the deed, 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."

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

The prisoner in this case was properly convicted and judgment should be affirmed. Opinion by Daniels, J.; Davis, P. J., of divorce against her and dissolved the and Brady, J., concurring.

marriage between her and the husband

tiff, but claimed and sought to show that it had been paid.

(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 plainD. had committed adultery, yet, as she was never adjudged therefor to be divorced 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 relieves plaintiff from a performance of his contract.

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

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, indi

of 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 flicting.
Establishment vs. Berdell.
Decided December 6th, 1875.

Plaintiff introduced the deposition 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 conclude 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 renders them competent as evidence for the other side.

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.

Under the first answer a preliminary

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 director).

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

This offer of defendant was refused by the referee, although plaintiff had introduced 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 concluded by anything that he had previously testified to, or that appeared on the trial, from claiming and proving, if possible, that the $20,000 in suit had, in

fact, been loaned by Mr. Marsh and not this action, The Mayor, &c., of New by plaintiff. If the proof offered had been York City, under certain statutes took received and had been sufficient, that fact private property, located in New York would have been established, and the City for the purpose of making, keeping plaintiff in that event prevented from re- and maintaining a public park, to be covering. Mr. Marsh's books had already known as Riverside Park. 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. Opinion by Daniels, J.; Davis, P. J. and Brady, J. concurring.

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

EXECUTORS AND ADMINISTRA-tition of the defendant an order was made


March 8th, 1873, directing said money to

SUPREME COURT, GENERAL TERM, FIRST 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.

An executor cannot recover an award

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

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. A. C. & E. A. Ellis for applt. for purposes of administration. In the absence of such allegations in Devlin, Miller and Trull for respt. the complaint, the complaint is de Held, That the plaintiff as executor murrable for the reason that the land, could not maintain this action on the or money awarded for it, is vested ground of the power of sale contained in in the heirs at law of the testator. the will. That to entitle the executor to Appeal from order of the Special Term recover the money, it must appear that he sustaining demurrer to the complaint. has some right to its possession, either for The complaint sets forth the following the purposes of administration or as a facts: trustee under the will.

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 his real estate. That letters testamentary were issued to plaintiff, who was the only executor who qualified.

of which would require that the fee of the land should be invested in the executor or trustee, nor are there any allegations 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.

The oxen were immediately after butchered by B and the horse was not returned but retained by A. against B for fraud. Defendant B claimA brought suit ed 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..

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 Order affirmed with $10 costs, and with | been worth if as represented by defendant. the usual leave for the plaintiff to amend upon payment of costs.

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.



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.

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 aecount of the unsoundness it was actually worth at the time of exchange only $125.

Opinion by Phelps, J.



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

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.

[merged small][merged small][ocr errors][merged small]

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. from the owner with his consent, proThe title passed duced, it is true, by fraudulent representations. That did not constitute the crime of larceny, but of obtaining money under false pretenses. The distinction, though narrow, is still a material one.

« ForrigeFortsett »