Volume 160 — New York Reports

<p>1. Appeal — Order upon Claim against Receiver in Foreclosure. An order determining the petition of a claimant for payment from a receiver appointed in a pending action for the foreclosure of a corporation mortgage is not a final order in a special proceeding, and hence is not appealable to the Court of Appeals as a matter of right.</p> <p>2. Invalid Appeal without Permission not Cured by Subsequent Permission, after Expiration of Time to Appeal. An appeal taken without prior permission, from an order not appealable as of right, is not cured by a subsequent order of the Appellate Division purporting to allow the appeal nuno pro tuna and certifying a question for review, made after the expiration of the statutory time to appeal.</p> <p>3. Unauthorized Allowance of Appeal. Where an appeal from an order not appealable as of right has been taken to the Court of Appeals without prior permission, the Appellate Division has no authority to grant a retroactive allowance of the appeal nunc pro tunc.</p> <p>4. Failure to Renew Appeal after Permission — Limit of Time to Appeal. Even if a notice of entry of an order fails, by reason of insufficiency, to limit the time to appeal, no case is presented for the Court of Appeals by an order of the Appellate Division allowing nuno pro tune an appeal previously taken without a prerequisite permission, where no appeal has been taken within sixty days after the allowance of the right to appeal.</p> <p>5. Entry or Appellate Division Order — Notice or Appeal. The, fact that a notice of entry of an order of the Appellate Division refers to the final entry in the office of the county clerk, without referring to the preliminary entry in the office of the clerk of the Appellate Division, does not render the notice insufficient to limit the time to appeal from the order.</p> <p>Guarantee Trust & & D. Oo. v. P., B. & JT. E. B. B. Oo., 31 App. Div. 511, appeal dismissed.</p>

The facts, so far as material, are stated in the opinion. The deed of trust under which the respondent claims is in effect a mortgage. (Crow v. Beardsley, 68 Mo. 435; Union Bank v. Kansas City Bank, 136 U. S. 223; Hargadine v. Henderson, 97 Mo. 375, 386; State v. Benoist, 37 Mo. 500; Potter v. McDowell, 31 Mo. 74; Carson v. Murray, 15 Mo. 378; Carson v. Blakely, 6 Mo. 273; S. & K. J. Co. v. Thurman, 29 Mo.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 5, 1899, reversing an interlocutory judgment entered upon a decision of the trial court, which sustained a demurrer to the complaint, and from an interlocutory judgment entered upon the decision of the former court overruling the defendant’s demurrer.

The nature of the action and the facts, so far as material, are stated in the opinions. The conclusions of law of the trial court were erroneous; if the plaintiff was induced to sign the deed by some fraud of Dorthy, on whom she relied, she, and not the mortgagees, must suffer the consequences of that fraud.

county of Rew York, denying a motion to dismiss proceedings instituted for the appraisal of property under the Transfer Tax Act. The facts, so far as material, are stated in the opinion. The Surrogate’s Court had no power to assess the tax in the present case.

The facts, so far as material, are stated in the opinion The violation complained of was such a violation as would justify the criminal conviction of.the holder of the certificate in question. (L. 1897, ch. 312, §§ 17, 34.) Stevens was trafficking in liquors at the premises in question as agent of the Malcom Brewing Company. (People ex rel. v. Murray, 148 N. Y. 171; Matter of Ritchie, 18 Misc. Rep. 341; Matter of Zinzow, 18 Misc.

. Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 11, 1897, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinions. The plaintiff, as receiver of the McCall Publishing Company, could not bring an action for conversion. (Code Civ.

The facts, so far as material, are stated in the opinions. The Appellate Division had no right to review the proceedings of the railroad commissioners and make the order wholly reversing the determination of the board of railroad commissioners of the state of Hew York which granted the certificate under section 59 of the Bailroad Law, because the railroad commissioners made no “ final determination ” affecting the rights of the relators.

The nature of the action and the facts, so far as material, are stated in the opinion. The owner of land may dig ditches or sink wells, or in any other manner exercise his dominion over his own land, without being liable at law for the interception of any underground percolating waters consequent upon such use of his own property.

This action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of defendant. The facts, so far as material, are stated in the opinions. Plaintiff was clearly guilty of negligence contributing to the occurrence of the accident. (Parsons v. N. Y. C. & H. R. R. R. Co., 85 Hun, 23; Mahon v. Burns, 13 Misc.

The defendant demurred to an indictment found against him by the grand jury of the county of Erie, on the ground, among others, “that more than… Held: a resolution directing that an order be drawn on the county treasurer of said county in favor of Henry L. Steiner, John P. Under-hill, John H. Stock, George H. Blanchard, Frank E. Klipfel, George F. Aberth, Philip Erbes, members of the committee on almshouse and county hospital of said board of supervisors ; George W. Briggs,…

<p>1. Homicide — Corpus delicti.</p> <p>The corpus delicti, in the case of murder or manslaughter, means the body of a crime, and is divided into two components parts; the first of which is the .death of the person, and the second is that the death is produced through criminal agency. The first must be established by direct evidence, and the latter by direct or circumstantial evidence, to the satisfaction of the jury, beyond a reasonable doubt.</p> <p>3. Same — Opening oe district attorney.</p> <p>It is the right and duty of the counsel representing the people, upon the commencement of a criminal trial, to make a statement to the jury of the evidence that he expects to present, and the claim that he wil make with reference thereto, to the end that the jury, upon listening to the evidence, may better understand and appreciate its connection and bearing upon the case.</p> <p>3. Same.</p> <p>The fact that, in making a statement of the evidence, the counsel in some instances stated what the evidence would show, is not error where he called the attention of the jury to the fact that it would not be proper to anticipate in detail the testimony of witnesses, and that he might misquote or give a forced construction to it, whereby he indicated that he was proceeding to state his understanding of what the evidence would be. (In case the jury was not misled thereby.)</p> <p>4. Same — Summing up.</p> <p>Where, in summing up in a prosecution for murder of defendant’s wife, the district attorney exceeds the bonds by characterizing the defendant as a seducer, he sufficiently retracts the statement by asking the jury to disregard and forget what he has said, and to only consider the evidence upon the subject.</p> <p>5. Same — Order of trial.</p> <p>The Code expressly gives to the court the power, in its discretion, in furtherance of justice, to permit evidence to be received out of its order, and upon the original case, even after a party has rested,' if it is before the case is finally submitted.</p> <p>6. Same—Evidence — Bad character.</p> <p>Evidence which is taken merely to show previous bad or vicious character is inadmissible; but if it tends to prove or establish any fact at issue upon the trial, it is competent, even though it tends to degrade the party.</p> <p>1. Same — Motive.</p> <p>Where the defendant is charged with the murder of his wife, motive becomes an important consideration, in determining the question whether he is guilty.</p> <p>8. Same — Loss of affection.</p> <p>Though a man may privately consort with a prostitute without the loss of affection for his wife, but where the transaction commences in a village where the defendant and his wife reside and are well acquainted and is continued at a hotel where they both are well known, openly and notoriously, and under such circumstances that it can hardly fail to come to the attention of his wife and neighbors, thus exposing his conduct and infidelity, the jury may fairly and reasonably infer from the transaction that the relations between the defendant and his wife are not agreeable, and that there is, upon his part, a lack of affection and respect for her,</p> <p>9. Same — Quarrels.</p> <p>The admission of testimony as to quarrels between the defendant and his wife two years before her death, taken in connection with the whole history of the case, and with the treatment of the deceased by the defendant, continuing down to the time of her death, is properly received.</p> <p>10. Same.</p> <p>Among the circumstances from which malice in the killing by a husband of his wife may be inferred is that of long continued ill treatment. '</p> <p>11. Same — Expert testimony.</p> <p>Evidence of physicians who were present and took part in the last autopsy held upon the body of the deceased, that they did not see any evidences of disease other than the conditions described by them, and that they did not discover any natural cause of death, is competent where they frankly stated to the jurors the extent of their examinations and what they saw.</p> <p>12. Same.</p> <p>A physician may be permitted to testify that there were pathological conditions found in the body of the decedent which, to the best of his belief, indicated the effect of prussic acid, where he is a graduate of a medical college, and has read the authorities upon the subject of the effect of prussic acid.</p> <p>13. Same — Evidence.</p> <p>The admission in evidence of the names of the jurors who sat upon the inquest, was harmless to the defendant, where the verdict of the coroner’s jury was not received in evidence.</p> <p>14. Same — Charge.</p> <p>The court, having once charged a proposition of law, can retract it and correct the charge made, before the jury has determined any of the issues of the case.</p> <p>15. Same — Requests.</p> <p>Requests, which require facts to be established by evidence equivalent to “ absolute and positive proof,” are properly refused.</p> <p>16. Same.</p> <p>So, requests, which are to the effect that if there be “any doubt,” whether it amounted to a reasonable doubt or not, the jury should acquit, are properly refused.</p> <p>17. Same.</p> <p>So, requests, which are merely argumentative, calling upon the judge to instruct the jurors that such circumstances were entitled to great weight in their minds, are improper.</p> <p>18. Same.</p> <p>A request that the chemical tests of an expert are valueless for the determination of the finding of prussic acid in the body of the deceased, or his truthfulness he doubted, then no inference can be drawn from his testimony, and proof of death by prussic acid is wanting, and the defendant should be acquitted is improper where the latter part of the request entirely ignores the testimony of another expert, who was present, assisted in, and witnessed one of such tests.</p> <p>19. Same.</p> <p>Where the opMon of experts is based upon a group of pathological symptoms evidencing to them death by prussic acid poisoning, and a request instructs the jury that the testimony of these physicians must be considered valueless and disregarded, if one of the symptoms enumerated should be disproved, the disproof of one symptom may not totally destroy it, so that their testimony should be wholly disregarded by the jury.</p> <p>80. Same.</p> <p>Where matter, embraced in a request, has been fully and sufficiently submitted to the jury, there is no need of further instruction upon this branch of the case.</p> <p>21. Same.</p> <p>Where requests might properly have been charged, but the substance was so nearly covered in the body of the charge that it cannot be held that harm has been done, or that all the rights of the defendant have not been protected, they constitute technical errors or defects, which are of such a character that they should be disregarded, under § 548 of the Code of Criminal Procedure.</p> <p>22. Same — Motion in arrest.</p> <p>A motion in arrest of judgment and for a new trial, made upon the grounds that there was misconduct on the part of a juror-, is properly denied where a number of witnesses made affidavit to conversations had with him prior to his selection as a juror, in which he is said to have made statements which, if true, would have disqualified him from sitting as a juror, but which the defendant strongly denied, and a question of fact is thus presented which has been disposed of by the trial judge, who appears to have believed the statement made by the juror.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial depart-merit, entered April 18, 1899, affirming so much of a decree of the Surrogate’s Court of Kings county as denied an application by a special guardian for an award to him out of the estate of the decedent of compensation for his services in addition to statutory costs.

<p>1. Voluntary Dissolution op Corporation — Jurisdiction Dependent upon Petition op- Majority op Directors. To empower the Supreme Court to entertain a proceeding for the voluntary dissolution of a corporation, the petition presented must have been verified by a majority of the directors, in strict pursuance of the statute (Code Civ. Pro. §§ 2419, 2422).</p> <p>2. Stock Corporation — Change in Number of Directors. It is essential to the legal increase or reduction of the number of directors of a stock corporation, that a transcript of the minutes of the stockholders’ meeting at which the change was determined upon shall have been filed in the offices where the original certificates of incorporation were filed, as provided by section 21 of the Stock Corporation Law (L. 1892, ch. 688).</p>

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 6,1898, and from the judgment entered thereon January 10, 1898, reversing a- judgment in favor of defendant entered upon a dismissal of the complaint at a Trial Term and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The question certified was as follows :■</p> <p>“ Did the cause of action set forth in the complaint survive after the death of Edward M. Mundt, the father and next of kin of Martin M. Mundt, deceased, so that the said cause of action could be continued by the substituted administrator of the said Martin M. Mundt, deceased ? ”</p> <p>The cause of action for negligently causing the death of another, being founded in tort and not involving an injury to property rights, abates on the death of the person or persons beneficially interested in a recovery. (Code Civ. Pro. §§ 1736, 1870, 1902-1905; Hollenbeck v. B. R. R. Co., 9 Cush. 478; Hegerich v. Keddie, 99 N. Y. 258; Smith v. M. S. Ry. Co., 15 Misc. Rep. 158; Wooden v. W. N. Y. & P. R. R. Co., 126 N. Y. 10; Whitford v. P. R. R. Co., 23 N. Y. 465 ; Safford v. Drew, 3 Duer, 627 ; Thomas on Neg. 487; Wiltse v. Town of Tilden, 77 Wis. 152; Taylor v. W. P. R. R. Co., 45 Cal. 323 ; Stuber v. McEntee, 142 N. Y. 200.) The weight of authority in other jurisdictions supports the view that this cause of action does not survive the death of the sole person beneficially interested. (Woodward v. C. & N. Ry. Co., 23 Wis. 400 ; Westcott v. C. V. R. R. Co., 61 Vt. 438 ; Harvey v. B. & O. R. R. Co., 70 Md. 319; Taylor v. W. P. R. R. Co., 45 Cal. 323; Loague v. R. R. Co., 91 Term. 458.) In case of reversal, the question of plaintiff’s personal liability for costs should be remitted to the Appellate Division. (Fox v. Matthiessen, 155 N. Y. 177.)</p> <p>The death of the personal representative in an action of this character does not abate the action. (Code Civ. Pro. §§ 757, 1902; Stuber v. McEntee, 142 N. Y. 203 ; Lang v. H., etc., Ry. Co., 75 Hun, 151.) The death of the father, Edward M. hlundt, did not abate this action. (Code Civ. Pro. §§ 1902, 1905, 2732; S. & R. on Neg. § 135 ; Lang v. H., etc., Ry. Co., 75 Hun, 151; Oldfield v. N. Y. & H. R. R. R. Co., 14 N. Y. 310 ; Hegerich v. Keddie, 99 N. Y. 258 ; Cox v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 414; Whitford v. P. R. R. Co., 23 N. Y. 479; Wooden v. W. N. Y & P. R. R. Co., 126 N. Y. 10; Waldo v. Goodsell, 33 Conn. 432 ; Pineo v. N. Y. C. & H. R. R. R. Co., 34 Hun, 80.) The cause of action does not abate by the death of the beneficiary. ( Waldo v. Goodsell, 33 Conn. 432 ; Muhl v. S. M. R. R. Co., 10 Ohio St. 272; Clare v. McIntyre, 120 Ind. 262; Webber v. Underhill, 19 Wend. 451; Penhollow v. Doane, 3 Dall. 54; The James A. Wright, 10 Blatch. 160; Mosely v. Mosely, 11 Abb. Pr. 105 ; Kissam v. Hamilton, 20 How. Pr. 372 ; Frier v. Jackson, 8 Johns. 507; Doe v. Butler, 3 Wend. 149.) This court is without power on this appeal to reverse the order and judgment appealed from. (Blaschko v. Wurster, 156 N. Y. 444; Rosenstein v. Fox, 150 N. Y. 354; Kaplan v. N. Y. B. Co., 151 N. Y. 171.)</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 18,1898, reversing a judgment of the County Court of Onondaga county and the Municipal Court of the city of Syracuse in favor of the defendant, dismissing the plaintiff’s complaint upon the merits. The nature of the action and the facts, so far as material, are stated in the opinion. The questions certified were as follows: First.

The nature of the action and the facts, so far as material, are stated in the opinions. Immediate notice of loss to the company by the assured was a condition precedent to a recovery under the policy. (Quinlan v. P. W. Ins. Co., 133 N. Y. 356; Weed v. H. B. F. Ins. Co., 133 N. Y. 394; Brown v. L. A. Co., 40 Hun, 101; Sherwood v. A. Ins. Co., 10 Hun, 593; Inman v. W. F. Ins. Co., 12 Wend. 452; MeEvers v. Lawrence, 1 Hoff.