Appeal from order denying motion CRIMINAL PRACTICE. WRIT OF for resettlement of case. ERROR.

On the settlement of the case the N. Y. SUPREME COURT, GENERAL TERM. justice by whom it was settled refused FOURTH DEPATMENT. to allow a portion of the notes of the stenographer to be inserted in the case, and substituted, in place of it, a statement of the evidence deemed by him

the most correct.

Plaintiff then moved

for a resettlement of the case which motion was denied.

On appeal.

J. W. Cowrell for applt.
D. Leventritt for respt.

The People ex rel, v. Henry Woodin.
Decided January, 1876.

The office of the writ of error is to re-
move a criminal record from an in-
ferior to a higher criminal jurisdic-
tion. The county clerk should make
return thereto.

The writ of error should always contain the judgment record in form required by $ of article 1, chap. 2 revised statutes.

The defendant in this case was indict

Held, That rule forty-one does not en-ed for the offence of subornation of title the party making a case as a mat- perjury. He was tried at the Court of ter of absolute right to the use of the Sessions, convicted, and sentenced to stenographer's notes. That may be state's prison for nine years and six done if the justice settling the case deem months. This is a writ of error brought that the proper course; any other state- to review the exceptions taken on the trial. ment showing what the evidence was may be used instead of those notes. The matter has been committed very much to the judgment and discretion of the justice before whom the trial may be had. It would be much better for the parties, their counsel and the court afterwards hearing the case, if an abridged statement should be made containing only the evidence material to be considered in reviewing the trial and inserted in it, instead of the stenograpoer's notes at large which often contain a mass of irrelevant questions and answers far ex-verse the same. ceeding, in bulk and extent, all that can The statutes, 2 Revised Stat., 741,. properly be considered or found impor- Sec. 20, requires that "upon every writ tant on the examination and decision of of error being filed which shall operate:

the case. There was no impropriety in the course pursued in this instance.

Order affirmed with $10 costs and disbursements.

as a stay of proceedings, it shall be the duty of the clerk of the court to make a return thereto without delay, containing a transcript of the indictment, bill

Opinion by Daniels, J.; Davis, P. of exceptions and judgment of the court

J., concurring.

E. G. Lapham for the prisoner. E. Hicks, Dist. Att'y for the people. Held, The office of a writ of error as retained in this State is to remove a record from an inferior court, exercising criminal jurisdiction, according to the course of common law, into this court, and also from this court to the Court of Appeals. It can only issue after final judgment in the inferior court, and this appellate court can only review such judgment, and affirm or re

certified by the clerk thereof.

The case before us contains the writ


Roberts, applt. v. Heap, respt.
Decided January, 1876.


of error, indictment and bill of exceptions, but no judgment record or judgment in the form prescribed by statute. Sec. 4 of art. 1, chap. 2 of title 6 of N. Y. SUPREME COURT. GEN'L TERM, vol. 2 of revised statutes, p. 738, provides that if the district attorney, upon request therefor, neglects for ten days after a conviction or acquittal to make up a record of the judgment, the defendant may cause the same to be made up; and sec. 5 provides that whenever a judgment upon a conviction shall be rendered by any court it shall be the duty of the clerk to enter such judgment fully in his minutes, stating briefly the offenses for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts.

the absence of the husband the wife may act as his agent and rent a house, and bind him for rent, &c. Evidence of how defendant occupied

other houses than one in suit inadmissible.

No such judgment or judgment record is returned to the writ, or appears in the case. There is, therefore, nothing before us to review.

For want of such judgment record, the court in Dawson v. The People, 5 Parker Crim. Rep. 118, quashed the writ of error, and for want either of such judgment record or judgment, the writ was dismissed in Hildebrand v. The People, 8 N. Y. Sup. Court Rep. 19.

I have no doubt that a common law record of judgment should, in all cases, where the remedy is by writ of error, be made out and brought up for the review of a conviction in an inferior criminal court. This is at least the better practice if not indispensable, and would obviate many of the embarrassments attending the review of such conviction in this court, and in the Court of Ap peals.

The defendant is a married man, and being away from home, his wife hired of plaintiff a house in the city of Utica. Plaintiff claims that the term was fixed for one year, and defendant insists that no time was fixed.

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Heid, The defendant was clearly bound by the contract of his wife in renting the house. Where the husband is absent from home the wife is necessarily his agent to make such contracts

We can, in this case, only dismiss the and purchases as are proper for the supwrit-and it is dismissed.

Writ dismissed.

port and maintenance of the family, according to his circumstances and condition in life. The only substantial

Opinion by E. Darwin Smith, J.

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question at issue on the trial was, what
were the terms of the lease taken by
her, whether it was a renting by the
month or the year. The case was fairly
submitted to the jury upon that issue,
and their verdict could not be disturbed

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except for an error in the reception of
evidence. The defendant, under ob-
jection, was allowed to prove that he
had previously occupied a house of Mr.
Hael, and that by the arrangement the hotel business."
with Mr. Hael, he could give up his
employment, and had the right to leave
on thirty day's notice, and that he was
living there in Mr. Hael's Louse by the
month. This evidence was inadmissi-

ble, and was likely to have some influ-
ence on the jury, in leading them to
the conclusion, corroborative of Mrs.
Heap, that the renting of the plaintiff's
house was also by the month. For this
error we think the judgment should be
reversed, and a new trial granted with
costs to abide the event.

New trial grunted.

Opinion by E. Darwin Smith, J.

longed to them. Plaintiffs claimed title to the colts under a chattel mortgage or bill of sale.

Held, Perhaps enough evidence as to whether the mare was included in the sale was given by the plaintiffs to entitle them to have the question submitted to the jury. But they made no request that it should be so submitted. They merely excepted to the direction of the court to the jury to find a verdict for the defendant. In the absence of such a request the circuit judge was right in directing a verdict, because there was a decided preponderance of evidence that the mare, aid, consequently the colts, replevied,


N. Y. SUPREME COURT, GEN. TERM. Were in fact the property of Dr. Smed


ley, and were not embraced in the bill of sale to Simmons, which constituted Moore, et al., applts., v. Bristol, et al., the only basis of the plaintiffs' title. respis.

Decided January, 1876.

Sheldon v. Atlantic F. and M. Ins. Co., 26 N. Y., 46; Stone v. Flower, +7 id. In order to take advantage of a refusal 566. In such a case an exception to of the judge to submit a specific the direction of the judge is insufficient question of fact to a jury, there must be a specific exception to such to raise the question whether he should refusal. have sent the case to the jury.

An exception generally to the direction
of the court to the jury to find a ver-
dict for the defendant, is not suffi-


The only question litigated upon the trial was whether the mare in controversy, from which the colts were foaled, was embraced in the sale by a Dr. Sinedley to Simmons. not in terms included in it. Its language is, “all the property in use in

She was

W. S. Newman for applt.
I. A, Nash for respt.

A new trial must be denied, and judgment must be ordered for the de

fendant on the verdict.

Plaintiffs were partners in business.
Defendant is a deputy sheriff, and J. and Smith, J.. concurring.
under an execution had seized and sold
two colts, which plaintiff's claim be-

Opinion by Gilbert, J.; Mullin, P.

of the infant, if he should be removed.

Ashley, respt. v. Sherman, applt.
Decided January 1876.
The inadequacy of the security given
by a guardian ad litem, and his com-

Held, That there is no evidence of any such threat as claimed, and a court would not be warranted in sanctioning the inference drawn by the court below, considering that the guardian is the father of the infant and that the evipromise of suits without the knowl-dence against him is not of a satisfactory

edge of his ward, and without the sanction of the court, does not furnish sufficient cause for removing such guardian, without first afford

ing him an opportunity to explain J., and Smith, J., concurring.

his conduct.




The order appealed from should be reversed and a reference ordered. Opinion by Gilbert, J.; Mullin, P.

In this case, the infant was sixteen years of age, and the guardian was appointed on her petition, on his giving


security in the sum of two hundred dol- N. Y. SUPREME COURT. GENERAL TERM,


Scholey, exr., respt. v. Mumford exr., applt.

Decided January, 1876.

Whether a payment is voluntary or
not is a question of law.
Where illegal fees are demanded and
paid as a condition of giving up
certain property, such payment is
not voluntary.

lars, and thereupon he commenced three actions in behalf of the infant, namely, one to recover the sum of fifty thousand dollars, another to recover a large and valuable real estate, and another to recover thirty thousand dollars for property converted, and money received by the defendant in that suit. The guardian entered into an agreement with the defendant in the first action for a compromise and a settlement as executor. He demanded, before dethereof, under which he has received livering up the bonds, certain fees, eight or nine thousand dollars, without which were illegal. The fees were finalgiving additional security. Such com-ly paid, and this action is brought to promise was made without the knowl-recover back such fees.

Plaintiff's testator held certain bonds

edge of the infant, or those who had the custody of her person, and without the sanction of the court. The guardian is the father of the infant, but from the time she was three months old until the present time she has lived with her foster father, or his son in a distant state.

F. A. McOmbee for respt. George F. Danforth for applt. Held, The exaction of the illegal commissions, as a condition of delivering the bonds, stands upon the pleadings substantially admit.ed. The plaintiff demanded the bonds; the defendant offered to deliver them on payment of such commissions; the commissions were paid and the bonds were delivered.

The court below put its decision, directing the removal of the guardian upon the ground that he was not acting in good faith toward the infant, and

Whether a payment made under

that he threatened to defeat the interest such circumstances is a voluntary one

or not, is a question of law. The Court of Appeals have held, in this very case, that it is not, and such must be deemed the law of the case.

The judgment must be affirmed. Opinion by Gilbert, J.; Mullin, P. J., and Smith, J., concurring.



Benjamin F. Butler, plaintiff in error, v. Alexander A. Thomson and William Thomson, defendants in error.

"NEW YORK, July 10, 1867. "Sold for Messrs. Butler & Co., Boston, to Messrs. A. A. Thomson & Co., New York, seven hundred and five (705) packs first quality Russia sheet iron, to arrive at New York, at twelve and three-quarters (12) cents per pound, gold, cash, actual tare.

"Iron due about Sept. 1, '67.

"WHITE & HAZZARD, Brokers."

The defendants contend that under the statute of frauds of the State of New York, this contract is not obligatory upon them. The judge before

Decided April 24, 1876.

whom the cause was tried at the circuit

A sold note signed by the broker of both parties necessarily imports_a purchase of the articles therein de

concurred in this view, and ordered judgment for the defendants. It is scribed, and binds the vendee as well from this judgment that the present as the vendor.

review is taken.

The plaintiff alleged that on the 11th day of July, 1867, he bargained and sold to the defendants a quantity of iron thereafter to arrive, at prices named, and that the defendants agreed to accept the same and pay the purchase money therefor; that the iron arrived in due time, was tendered to the defendants, who refused to receive and pay for the same, and that the plaintiff afterwards sold the same at a loss of $9,581, which sum he requires the defendants to make good to him. The defendants interposed a general denial.


In error to the Circuit Court of the The provision of the statute of New United States for the Southern Dis-York upon which the question arises trict of New York. (2 R. S., 136, $3) is in these words: Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless (1) a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or (2) unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or (3) unless the buyer shall at the time pay some part of the purchase-money."

The 8th section of the same title provides that "every instrument required by any of the provisions of this title to be subscribed by any party inay be subscribed by the lawful agent of such

Upon the trial the case came down to this: The plaintiff employed certain brokers of the City of New York to make sale for him of the expected iron. party.' The brokers made sale of the same to the defendants at 12 cents per pound in gold, cash.

The following memorandum of sale was made by the brokers, viz:

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There is no pretence that any of the goods were accepted and received, or that any part of the purchase money was paid. The question arises upon the first branch of the statute, that a mem

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