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

ERROR.

FOURTH DEPATMENT.

On the settlement of the case the N. Y. SUPREME COURT, GENERAL TERM. justice by whom it was settled refused 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 4 of article 1, chap. 2 revised statutes.

The defendant in this case was indict

state's prison for nine years and six months. This is a writ of error brought to review the exceptions taken on the trial.

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

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 done if the justice settling the case deem that the proper course; any other statement 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 court, and also from this court to the 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 exceeding, in bulk and extent, all that can properly be considered or found important on the examination and decision of the case. There was no impropriety in the course pursued in this instance. Order affirmed with $10 costs and disbursements.

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 reverse the same.

The statutes, 2 Revised Stat., 741,. Sec. 20, requires that " upon every writ of error being filed which shall operate 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.

certified by the clerk thereof.

The case before us contains the writ

of error, indictment and bill of exceptions, but no judgment record or judgment in the form prescribed by statute.

HUSBAND AND WIFE. LAND-
LORD AND TENANT. EVI-
DENCE.

FOURTH DEPARTMENT.
Roberts, applt. v. Heap, respt.

Decided January, 1876.

In 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

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.

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.

other houses than one in suit inadmissible.

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.

Defendant occupied the premises six months, and then left, and this action is brought for the rent for the last six months of the year.

On the trial, the defendant, under objection, was allowed to prove that when he lived in another house his employment could be terminated on thirty days notice. He was also allowed to prove that one house he occupied prior to this, was occupied by the month.

The action was tried, originally, beed to the county court, where there was fore a justice of the peace; was appealjudgment for the defendant. S. M. Lindsley, for applt.

a

Goodman & Porter, for respts.

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.

Opinion by E. Darwin Smith, J.

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

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 except for an error in the reception of evidence. The defendant, under objection, was allowed to prove that he had previously occupied a house of Mr. Hael, and that by the arrangement 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 influence 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.

PRACTICE. EXCEPTIONS.

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

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. She was not in terms included in it. Its language is, "all the property in use in the hotel business."

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

Held, Perhaps enough evidence as to whether the mare was included in

the sale was given by the plaintiff's 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 w33 a decided preponderance of evidence that the mare, and, consequently the colts, replevied,

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

FOURTH DEPARTMENT.

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 verdict for the defendant, is not suffi

cient.

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

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

fendant on the verdict.

Opinion by Gilbert, J.; Mullin, P. J. and Smith, J.. concurring.

GUARDIAN.

N. Y. SUPREME COURT-GENERAL TERM
FOURTH DEPARTMENT.
Ashley, respt. v. Sherman, applt.
Decided January 1876.

of the infant, if he should be removed.

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 evi

The inadequacy of the security given by a guardian ad 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 explain J., and Smith, J., concurring.

his conduct.

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

Opinion by Gilbert, J.; Mullin, P.

ILLEGAL FEES. VOLUNTARY
PAYMENTS.

FOURTH DEPT.

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

Decided January, 1876.

Whether a payment is voluntary or

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

security in the sum of two hundred dol- N. Y. SUPREME Court. General Term, 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 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 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.

The court below put its decision, di- of such commissions; the commissions recting the removal of the guardian were paid and the bonds were deliverupon the ground that he was not acting

in good faith toward the infant, and

ed.

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.

SOLD NOTE.

U. S. SUPREME COURT.

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

Decided April 24, 1876.

A sold note signed by the broker of both parties necessarily imports a purchase of the articles therein described, and binds the vendee as well as the vendor.

"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

whom the cause was tried at the circuit

concurred in this view, and ordered judgment for the defendants. It is from this judgment that the present review is taken.

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:

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.

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. The brokers made sale of the same to the defendants at 12 cents per pound in gold, cash.

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.'

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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 may be subscribed by the lawful agent of such party.'

There is no pretence that any of the goods were accepted and received, or 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 mem

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