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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

The People ex rel, v. Henry Woodin. stenographer to be inserted in the case,

Decided January, 1876. and substituted, in place of it, a statement of the evidence deemed by him The office of the writ of error is to re

move a criminal record from an inthe inost correct. Plaintiff then moved

ferior to a higher criminal jurisdicfor a resettlement of the case which mo

tion. The county clerk should make tion was denied.

return thereto. On appeal.

The writ of error should always con

tain the judgment record in form reJ. W. Cowrell for applt.

quired by $t of article 1, chap. 2

revised statutes. D. Leventritt for respt.

The defendant in this case was indictlleld, 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 ment showing what the evidence was

may be used instead of those notes.

E. G. Lapham for the prisoner.
The matter has been committed very

E. Hicks, Dist. Atty for the people.
much to the judgment and discretion of Held, The office of a writ of error as
the justice before whom the trial may be retained in this State is to remove a
had. It would be much better for the record from an inferior court, exercis-
parties, their counsel and the court af- ing criminal jurisdiction, according to
terwards hearing the case, if an abridged the course of common law, into this
stateinent should be made containing court, and also from this court to the
only the evidence material to be consid- Court of Appeals. It can only issue
ered in reviewing the trial and inserted after final judgment in the inferior
in it, instead of the stenograpoer's notes court, and this appellate court can only
at large which often contain a mass of review such judgment, and affirm or re-
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 as a stay of proceedings, it shall be the
the course pursued in this instance.

duty of the clerk of the court to make Order affirmed with $10 costs and a return thereto without delay, containdisbursements.

ing a transcript of the indictment, bill Opinion by Daniels, J.; Davis, P. of exceptions and judgment of the court J., concurring

certified by the clerk thereof.

The case before us contains the writ

of error, indictment and bill of excep- HUSBAND AND WIFE. LANDtions, but no judgment record or judg LORD AND TENANT. EVI. ment in the form prescribed by statute.

DENCE. 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, pro

FOURTH DEPARTMENT. vides that if the district attorney, upon

Roberts, applt. v. Heap, respt. request therefor, neglects for ten days after a conviction or acquittal to make

Decided January, 1876. up a record of the judginent, the de- In the absence of the husband the wife fendant may cause the same to be made

may act as his agent and rent a house,

and bind him for rent, &c. up; and sec. 5 provides that whenever Evidence of how defendant occupied a judgment upon a conviction shall be

other houses than one in suit inadrendered by any court it shall be the missible. duty of the clerk to enter such judo The defendant is a married man, and ment fully in his minutes, stating briefly being away from home, his wife hired the offenses for which such conviction of plaintiff a house in the city of Utica. shall have been had, and the court shall Plaintiff claims that the terin was fixed inspect such entries and conform them for one year, and detendant insists that to the facts.

no time was fixed. No such judgment or judgment rec

Defendant occupied the premises ord is returned to the writ, or appears six months, and then left, and this acin the case. There is, therefore, noth- tion is brought for the rent for the last ing before us to review.

six months of the year. For want of such judgment record,

On the trial, the defendant, under the court in Dawson v. The People, 5 objection, was" allowed to prove that Parker Crim. Rep. 118, quashed the writ when he lived in another house his emof error, and for want either of such ployınent could be terminated on thirty judgment record or judgment, the writ days notice. He was also allowed to was dismissed in Hildebrand v. The prove that one house he occupied prior People, 8 N. Y. Sup. Court Rep. 19.

to this, was occupied by the month.

The action was tried, originally, beI have no doubt that a common law

fore a justice of the peace; was appealrecord of judgment shonld, in all cases, where the remedy is by writ of error, be ed to the county court, where there was made out and brought up for the review

a judgment for the defendant. of a conviction in an inferior criminal S. M. Lindsley, for applt. court. This is at least the better prac

Goodman & Porter, for respts. tice if not indispensable, and would ob Hleid, The defendant was clearly viate many of the embarrassments at- bound by the contract of his wife in tending the review of such conviction renting the house. Where the husband in this court, and in the Court of Ap is absent from home the wife is necessapeals.

rily 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.

port and maintenance of the family, Writ dismissed.

according to his circumstances and conOpinion by E. Darwin Smith, J. dition in life. The only substantial

question at issue on the trial was, what longed to them. Plaintiffs claimed were the terms of the lease taken by title to the colts under a chattel morther, whether it was a renting by the gage or bill of sale. month or the year. The case was fairly The only question litigated upon the subinitted to the jury upon that issue, trial was whether the mare in controand their verdict could not be disturbed versy, from which the colts were except for an error in the reception of foaled, was embraced in the sale by a evidence. The defendant, under 05. Dr. Sinedley to Simmons. She was jection, was allowed to prove that he not in terms included in it. Its lanhad previously occupied a house of Mr. guage is, “all the property in use in Hael, and that by the arrangement the hotel business.” with Mr. Hael, he could give up his

W. S. Newman for applt. employment, and had the right to leave

I A, Nash for respt. on thirty day's notice, and that he was living there in Mr. Hael's house by the

Neld, Perhaps enough evidence as month. This evidence was inadmissi- to whether the mare was included in ble, and was likely to have some influ- the sale was given by the plaintiff's to ence on the jury, in leading them to entitle them to have the question subthe conclusion, corroborative of Mrs. mitted to the jury. But they made no Heap, that the renting of the plaintiff's request that it should be so submitted. house was also by the month. For this They merely excepted to the direcerror we tliink the judgment should be tion of the court to the jury to find reversed, and a new trial granted with

a verdict for the defendant. In the costs to abide the event.

absence of such a request the circuit New trial gr unted.

judge was right in directing a verOpinion by E. Darwin Smith, J.

dict, because there w2.3 a decided pre

ponderance of evidence that the mare, PRACTICE. EXCEPTIONS.

acid, consequently the colts, replevied, N. Y. Supreme Court, Gen. TERM. ley, and were not embraced in the bill

were in fact the property of Dr. SmedFOURTH DEPARTMENT.

of sale to Simmons, which constituced Moore, et al., applts., v. Bristol, et al., the only basis of the plaintiff' title. respis.

Sheldon v. Atlantic F. and M. Ins. Co., Decided January, 1876.

26 N. Y., 46); Stune v. Flower, +7 id. In order to take advantage oj 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

A new trial must be denied, and of the court to the jury to find a verdict for the defendant, is not sutji- judgment must be ordered for the decient.

fendant on the verdict. Plaintiffs were partners in business.

Opinion by Gilbert, J.; Mullin, P. 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


of the infant, if he should be removed. N. Y. SUPREME COURT-GENERAL TERM

Held, That there is no evidence of FOURTH DEPARTMENT.

any such threat as claimed, and a court

would not be warranted in sanctioning Ashley, respt. v. Sherman, applt.

the inference drawn by the court below, Decided January 1876.

considering that the guardian is the The inadequacy of the security given father of the infant and that the evi

by a guardian að litem, and his compromise of suits without the knowl- dence against him is not of a satisfactory edge of his ward, and without the character. sanction of the court, does not fur. The order appealed from should be nish sufficient cause for removing reversed and a reference ordered. such guardian, without first affording him an opportunity to ečplain J., and Smith, J., concurring.

Opinion by Gilbert, J.; Mullin, P. his conduct. In this case, the infant was sixteen

ILLEGAL FEES. VOLUNTARY years of age, and the guardian was ap

PAYMENTS. pointed on her petition, on his giving security in the sum of two hundred dol- N. Y. SUPREME Court. GENERAL TERM,

FOURTH DEPT. lars, and thereupon he commenced three actions in behalf of the infant, namely, Scholey, exr., respt. v. Mumford one to recover the sum of fifty thousand exr., applt. dollars, another to recover a large and

Decided January, 1876. valuable real estate, and another to re. Whether a payment is voluntary or cover thirty thousand dollars for pro- Where illegal fees are demanded and

not is a question of law. perty converted, and money received

paid as a condition of giving up by the defendant in that suit. The

certain property, such payment is guardian entered into an agreement not voluntary. with the defendant in the first action

Plaintiff's testator held certain bonds 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. edge of the infant, or those who had

F. A. McOmbee for respt. the custody of her person, and without Georye F. Dunforth for applt. the sanction of the court.

lleld, The exaction of the illegal dian is the father of the infant, but coininissions, as a condition of deliverfrom the time she was three months old ing the bonds, stands upon the pleaduntil the present time she has lived with ings substantially admit.ed. The plainher foster father, or his son in a distant tiff demanded the bonds; the defendstate.

ant offered to deliver them on payment The court below put its decision, Ji- of such commissions ; the cominissions recting the removal of the guardian were paid and the bonds were deliverupon the ground that he was not acting ed. 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

The guar

or not, is a question of law. The Court “NEW YORK, July 10, 1867. of Appeals have held, in this very case, “Sold for Messrs. Butler & Co., Bosthat it is not, and such must be deemed ton, to Messrs. A. A. Thomson & Co., the law of the case.

New York, seven hundred and five The judgment must be affirmed. (705) packs first quality Russia sheet

Opinion by Gilbert, J.; Mullin, P. iron, to arrive at New York, at twelve J., and Smith, J., concurring.

and three-quarters (124) cents per
pound, gold, cash, actual tare.

“Iron due about Sept. 1, '67.

“WHITE & Hazzard, Brokers." Benjamin F. Butler, plaintiff in error,

The defendants contend that under v. Alexander A. Thomson and William the statute of frauds of the State of Thomson, defendants in error.

New York, this contract is not obligaDecided April 24, 1876.

tory upon them. The judge before

whom the cause was tried at the circuit A sold note signed by the broker of both parties necessarily imports a

concurred in this view, and ordered

It is purchase of the articles therein de - judgment for the defendants. scribed, and binds the vendee as well from this judgment that the present as the vendor.

review is taken. In error to the Circuit Court of the

The provision of the statute of New United States tor the Southern Dis-York upon which the question arises trict of New York.

(2 R. S., 136, 93) is in these words: The plaintiff alleged that on the 11th Every contract for the sale of any day of July, 1867, he bargained and sold goods, chattels, or things in action, for to the detendants a quantity of iron there the price of fifty dollars or more, shall after to arrive, at prices named, and be void, unless (1) a note or memorand. that the defendants agreed to accept um of such contract be made in writing, the same and pay the purchase money and be subscribed by the parties to be therefor; that the iron arrived in due charged thereby; or (2) unless the buytime, was tendered to the defendants, er shall accept and receive part of such who refused to receive and pay for the goods, or the evidences, or some of same, and that the plaintiff afterwards them, of such things in action; or (3) sold the same at a loss of $9,581, which unless the buyer shall at the time pay sum he requires the defendants to make some part of the purchase-money.” good to him. The defendants inter The 8th section of the same title proposed a general denial.

vides that "every instrument required Upon the trial the case came down to by any of the provisions of this title to this: The plaintiff employed certain be subscribed by any party may be subbrokers of the City of New York to scribed by the lawful agent of such make sale for him of the expected iron.

party.” The brokers made sale of the same to There is no pretence that any of the the defendants at 124 cents per pound goods were accepted and received, or in gold, cash.

that any part of the purchase money The following memorandum of sale was paid. The question arises upon the was made by the brokers, viz:

first branch of the statute, that a mein

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