Volume 162 — New York Reports

Court in the second judicial department, entered October 6, 1899, affirming a decree of the Surrogate’s Court of the county of Kings refusing to admit to probate the will of Isabella Andrews, deceased. The facts, so far as material, are stated in the opinion. The testatrix and witnesses signed at the end of the will within the meaning of the statute.

<p>1. Contributory Negligence—Mistake op Judgment in Imminent Peril. Upon the trial of an action against a railroad company for damages for the death of plaintiff’s intestate occurring at one of its crossings, that deceased was in a position of imminent danger is not sufficiently established where the undisputed evidence shows that he was in good health, entirely familiar with the crossing, was driving a gentle horse at a walk, or slow trot, and saw the train by which he was struck approaching at a speed of from forty to fifty miles an hour when it was still two hundred feet from the crossing, and when the head of his horse was within six feet of the nearest rail, there being nothing in the surroundings to confuse him, and the circumstances indicating that he first intended to j ump from the wagon and then changed his mind and whipped up his horse, intending to cross in front of the train ; and a charge to the 3' ury stating the legal principle applicable to a mistake of judgment, committed by one placed in such a position by the negligence of another, is reversible error, as it permits a finding that the deceased was free from contributory negligence, when the evidence does not.</p> <p>2. Burden of Proof. The burden is upon plaintiffs, in an action to recover for the negligent killing of their intestate, to show that the latter acted with reasonable care under the circumstances.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 13, 1898, upon an order unanimously affirming a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial. The appeal was allowed by the Appellate Division upon the ground that a question of law had arisen in this case which in its opinion ought to be reviewed by the Court of Appeals.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was not liable for the loss of the samples, and the plaintiff should have been nonsuited. (Talcott v. W. R. R. Co., 159 N. Y. 461; Sloman v. G. W. Ry. Co., 67 N. Y. 208; Cahill v. L. & N. Ry. Co., 10 C. B. [N. S.] 154; Becker v. G. E. Ry. Co., L. R. [5 Q. B.] 241; G. N. R. Co. v. Shepherd, 8 Exch. 30; B. & B. M. Ry. Co. v. Keys, 9 H. L. Cas. 555; Lee v. G. T. Ry.

<p>Appeal from a judgment of the Appellate Division/ of the Supreme Court in the fourth judicial department, entered May 16, 1898, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at an Equity Term.</p> <p>This action was brought to obtain a judgment directing the defendant to transfer upon its books to the plaintiff four hundred and fifty' shares of its capital stock. All of these shares stood in the name of Emanuel Levi, who had, some year's previously, pledged the same with, and delivered the certificates thereof to, the plaintiff to secure the payment of his promissory notes for moneys loaned. At the time that he so pledged the shares of stock, he executed and delivered to it an assignment of the same in the usual form; by which he assigned and transferred to it, by name, the shares of defendant’s capital stock standing in his name on the boobs and constituted one of the officers of the plaintiff his attorney to effect the transfer thereof, etc. He, at the same time, executed and delivered to the plaintiff a receipt for the moneys loaned to him, which stated the rate of interest the loan should carry, the assignment of collateral security for its payment and that the plaintiff was authorized, in case of default in payment of the principal and interest of the loan, to sell the securities at public or private sale, etc.</p> <p>Levi having died, a demand was made upon his executors for payment of the notes, with notice that, in the event the same were not paid and the stock redeemed, on or before a certain date, the stock would be sold at public auction and the proceeds applied in liquidation of the indebtedness of their testator. On June 30th, 1896, a public sale was regularly had, at which the stock was purchased by the plaintiff. Thereafter, a demand of the plaintiff upon the defendant to transfer the stock so purchased upon its books was refused.</p> <p>The defendant claims a lien upon the stock by force of a statement printed upon the face of the certificates, in the following language : “ This is to certify that Emanuel Levi is the owner of--shares of one hundred dollars each of the capital stock of the Third National Bank of Buffalo, subject to the lien referred to in section 15 of the by-laws of said bank in the following words : " No transfer of the stock of this association shall be made without the consent of the Board of Directors by any stockholder who shall be liable to the association, either as principal debtor or otherwise, which liability shall be a lien upon the said stock and all profits thereof and dividends.’ And that the said stock is transferable only upon the books of the bank by him or his attorney on the surrender and cancellation of this certificate and compliance with said by-law.”</p> <p>Levi had been a director of the defendant and, at the time he pledged his stock to the plaintiff, he was under an indebtedness to the defendant. The trial judge made this finding with respect to it: “ That at the time of the sale of the stock in question to, and its purchase by, the plaintiff, the estate of Emanuel Levi was largely indebted to the defendant, and the defendant then had and now has a right to a lien upon said certificates and stock as security for the payment thereof; that Levi’s indebtedness to the defendant accrued, prior to the pledge of any of said certificates to the plaintiff; that no tender or offer to pay said indebtedness by the plaintiff, or by any other person or party has ever been made. That the plaintiff was notified of the defendant’s claim before the sale of June 30, 1896, and the defendant forbade such sale except subject to the defendant’s claims, demands and liens.”</p> <p>The defendant at no time had possession of Levi’s certificates of stock, and its claim is of an equitable lien upon the same for all the indebtedness owing by him as its stockholder, by reason of the statement upon the certificates; It is, also, claimed that lie orally stated to the defendant’s president that “he had a large amount of stock in the bank and that was security for his loans ” and that, though “ it was in the safe deposit vault,” the bank “ could consider it there as delivered as collateral to its loan.” The trial court made no finding as to these facts ; nor otherwise upon the subject than the finding above given. The conclusion reached by the trial court upon the facts was, in substance, that the defendant had a lien upon the stock, for the amount of the indebtedness existing against the estate of Levi, when the certificates were purchased by the plaintiff, and that the latter’s right to a transfer to itself of the stock was subject to the lien of the former.</p> <p>Judgment was entered dismissing the complaint upon the merits, upon the sole ground that the plaintiff is entitled to a transfer of the stock in question by the defendant and to have new certificates issued to it in place of those to be surrendered and canceled, when, but not until, it should pay to the defendant an amount sufficient to satisfy its lien for the indebtedness to it owing by Levi’s estate. This judgment was affirmed in the Appellate Division by a divided court and the plaintiff has appealed to this court.</p> <p>Defendant had no lien, actual or constructive, on stock of Levi held by plaintiff. Defendant had no authority to make a by-law such as purports to be set out in its stock certificates. Said by-law was unauthorized and void, and created no lien on the stock. (13 U. S. Stat. at Large, 118 ; Bank v. Lanier, 11 Wall. 369 ; Bullard v. E Nat. Bank, 18 Wall. 589 ; S. Nat. Bank v. Bank of N. Y., 10 Bush, 367 ; Conklin v. S. Nat. Bank, 45 N. Y. 655; Driscoll v. W. B. & C. M. Co., 59 N. Y. 96; Feckheimer v. N. E. Bank, 79 Va. 80.) The defendant had no actual pledge of the stock in suit as collateral for any indebtedness which Levi might have owed it. It never had possession of the stock in question. (Cortelyu v. Lansing, 2 Caines’ Cas. 200, 202 ; Garlick v. James, 12 Johns. 146 ; Wilson v. Little, 2 N. Y. 443; 18 Am. & Eng. Ency. of Law, 595, 598 ; Black v. Bogart, 65 N. Y. 601; McComber v. Parker, 14 Pick. 497; F. Nat. Bank v. N. E. Bank, 92 U. S. 122.) If the defendant ever had any lien upon the stock in question, either actual or constructive, it waived that lien by a failure to enforce it. (Barrett v. Goddard, 3 Mason, 107; Gilmam v. Brown, 1 Mason, 191; 4 Wheat. 255.) The defendant has failed to show that there was any indebtedness due from Levi to it for which it could claim a lien. (Austin v. Munro, 47 N. Y. 360.)</p> <p>As the defendant secured an equitable lien upon the stock in question before the plaintiff secured a lien thereon, the lien of the defendant is prior in time and prior in right, and the plaintiff having taken the stock of the defendant with notice of the defendant’s rights therein, it follows that the plaintiff acquired its lien subject to the lien of the defendant, and the plaintiff cannot compel the defendant to transfer the stock upon its books until the plaintiff has redeemed the stock from the lien of the defendant thereon. (Crocker v. Whitney, 71 N. Y. 161; Nat. Bank v. Whitney, 103 U. S. 99; Thompson v. St. Nicholas Bank, 146 U. S. 240; Nat. Bank v. Matthews, 98 U. S. 621; Nat. Bank of Xenia v. Stewart, 107 U. S. 676; Conklin v. S. Nat. Bank, 45 N. Y. 655 ; Driscoll v. W. B. & C. M. Co., 59 N. Y. 96.)' This case does not turn upon the question of whether the defendant has a perfect legal lien upon the stock as a bailee, but it is enough that the defendant has an equitable lien thereon, which the court can require the plaintiff to satisfy as a condition of requiring the defendant to transfer the stock to the plaintiff, and the by-law recited in the stock and assented to by Levi by acceptance of the stock, and Sweet’s testimony as to talks had with Levi when the loans were made, prove this equitable lien on the stock. (1 Greenl. on Ev. [14th ed.] § 23.) The by-law of the defendant, made a part of its stock certificate, is not void and is not repugnant to the statute, but it is part of the very stock and contract with Levi, of which • plaintiff claims the benefit as the privy and assignee of Levi, hence the plaintiff is a party thereto and is stopped from claiming it does not bind plaintiff as a part of such contract and collateral. (3 Pom. Eq. Juris. §§ 1233, 1234; 1 Pom. Eq. Juris. §§ 165, 172; U. S. R. S. § 5201 ; 1 Greenl. on Ev. [14th ed.] § 23.) No judgment can be rendered against the defendant in this action, because the Levi estate is interested as the principal debtor, and the failure to make it a party defendant herein is fatal to any judgment the plaintiff can recover in this action. (Code Civ. Pro. § 452 ; Osterhoudt v. Bd. Suprs., 98 N. Y. 239.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 23, 1899, affirming a judgment in favor of plaintiff entered upon a decision of the court after trial without a jUI7- •</p> <p>This action was brought by the plaintiff, as receiver of an insolvent bank in the state of Washington, to recover the equal and ratable proportion of an alleged deficiency claimed to be due from the defendant on account of his ownership of sixty-five shares of the capital stock of said bank. Upon the trial the following facts, among others, were found by the court:</p> <p>Tfye bank in question, incorporated under the laws of the territory (now state) of Washington, became insolvent in-May, 1894, and, on'the 19th of that month, the plaintiff was duly appointed receiver thereof, “and of all its property and assets, real and personal, of whatsoever nature,” by a court of general jurisdiction in that state, but the defendant was not a party to. the action. The bank had a capital of $500,000, divided into 5,000 shares of the par value of $100 each, and prior to the appointment of the plaintiff as receiver, as well as ever since, the defendant owned sixty-five shares. From the organization of said bank the statutes of Washington have provided that the stockholders of every bank incorporated thereunder “should be held individually responsible, equally and ratably, and not one for the other, for all the contracts, debts and engagements of the bank accruing while they remain such stockholders, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares.” They further provide for the appointment of a receiver by the Superior Court whenever a corporation becomes insolvent, with “ power, under control of the court, to bring and defend actions, take and keep possession of property, receive rents, collect notes and generally .to do such acts, respecting the property in his hands, as the court should authorize.”</p> <p>Said statutes have received judicial construction in the highest court of said state, which established the law “ that a receiver of an insolvent corporation, appointed under and in accordance with said laws, and under circumstances similar to those under which plaintiff was appointed receiver, as aforesaid, became and was a receiver for all of the creditors of the respective corporation or association of which he was so appointed receiver, and a quasi assignee, and invested with the title to all rights of action possessed by his principals, and was entitled to bring and defend, in his own name, as such receiver, any and all actions involving the property, funds and effects in his hands as receiver or concerning the persons represented by him, including the creditors of such corporations. * * * That the liability of the stockholders of a banking corporation, organized under the provisions of the laws of the said state as above quoted, was a contingent and secondary liability to be enforced after all other assets of said bank had been exhausted and was provided for the benefit of all creditors of said bank and became a part of, and added to, the funds and property of such bank in the possession of the receiver thereof, and the title to which was in said receiver as a trust fund for the -purpose of satisfying the claims of such creditors; and that such trust funds, including said contingent and secondary liability of the stockholders of such bank, were all assets in the hands of such receiver and should be adjusted in receivership proceedings, and that such receiver had the right, under the direction of the court, to enforce the said contingent and secondary liabilities and every liability of whatsoever nature which the court might find necessary in order to pay the amount owing to the creditors, and that the receiver of such corporation, and not the individual creditors themselves, was and is the proper person to sue upon and enforce the said liabilities against the stockholders of such iusolvent banking corporation.”</p> <p>The trial court further found as follows:</p> <p>“ Tenth. That at the time the defendant became the owner and holder of sixty-five shares of stock in the said bank, as aforesaid, the provisions of the laws of the State of Washington as stated above, as interpreted by the courts of that State, were in full force and became a part of the said defendant’s contract of purchase and ownership of said shares of stock, and said defendant in and by his purchase and ownership and holding of said sixty-five shares of stock of said bank as aforesaid, contracted and agreed for a valuable consideration, that he would be, and remain, individually responsible, equally and ratably with the other stockholders of said hank, for all contracts, debts and engagements of said bank accruing while he remained such stockholder to the extent of the amount of his stock therein at the par value thereof, to wit, to the amount of $6,500 in addition to the amount invested in said, shares; and that it is provided by the laws of the said State of Washington that an action to enforce said liability or any liability under the said contract and obligation is transitory and may be brought by a receiver as aforesaid in any court of general jurisdiction in any State where personal service can be made upon said stockholder.</p> <p>“ Eleventh. That while the said defendant remained a stockholder of said Traders’ Bank of Tacoma and the owner of sixty-five shares of its stock of the par value of $100 each as aforesaid, certain contracts, debts, engagements and obligations duly accrued against said Traders’ Bank of Tacoma, upon which, after exhausting and applying the proceeds of all property and assets of said bank of whatsoever nature, there still remains due and owing the sum of $131,670.40, and that the equal and ratable proportion of the said deficiency due from said defendant on account of the sixty-five shares of the capital stock of said bank owned by him as aforesaid, and on account of the contract and agreement entered into by him at the time of his purchase and ownership as aforesaid, and in accordance with the provisions of the statutes and laws of the State of Washington, is the sum of $1,712.10..</p> <p>“ Twelfth. That prior to the commencement of this action and prior to the making of the assessment hereinafter referred to, plaintiff as receiver of the Traders’ Bank of Tacoma, as aforesaid, and acting under orders of the said Superior Court of the State of Washington for the county of Pierce, had duly and regularly collected in and sold and disposed of all property and assets of said Traders’ Bank of Tacoma, real, personal and mixed, and of whatsoever kind and nature, except the said contingent or secondary liability against the stockholders of said bank, and had distributed the money so collected and the proceeds so realized to the several creditors of the said Traders’ Bank of Tacoma entitled thereto, as was duly found and ordered by the said Superior Court last above named; and that after so selling and disposing of all of the assets of said bank, and on or about the 17th day of March, 1897, upon a full report and showing to said Superior Court last above named, and upon full proof of the facts above stated and of the condition of said bank, an order and judgment of said Superior Court was duly made and entered in said cause number 11,673 by said Superior Court of the State of Washington for the county of Pierce, adjusting all the affairs of said receivership and the liabilities of the stockholders of said bank and finding and adjudging the aggregate amount of the several deficiencies upon the several contracts, debts and engagements which had accrued against said bank prior thereto to be the sum of $131,670.40, and further ordering, directing and adjudging that plaintiff, as receiver as aforesaid, at once levy an assessment upon the several stockholders of said bank equal to twenty-six and T3^, per cent of the par value of the stock of said bank, which was by said judgment found to be an assessment sufficient and necessary to make up the full amount of said deficiency and which said judgment directed that said assessment be paid forthwith to said plaintiff as such receiver at Tacoma, Pierce county, Washington, in cash, on or before the 24th day of April, 1897, and • which said judgment further ordered and directed said plaintiff, as such receiver, to forthwith give notice to and make demand upon the several stockholders of said bank for the amount of the respective assessments upon them on account of their several proportions of the capital stock of said bank, and authorized and directed him, said plaintiff, as such receiver, to proceed forthwith by suit brought in his own name as such receiver against all stockholders, if any, who refused to pay fclieir respective portions of such assessment, or any portion thereof, according to the said terms and demands. * * * ”</p> <p>The receiver thereupon levied an assessment on the several stockholders of the bank, in accordance with said judgment, of twenty-six and Ty„- per cent upon the par value of said stock. Before the commencement of this action he gave notice of such assessment to the defendant as one of said stockholders, and demanded payment of his proportionate amount of the assessment and deficiency, amounting to $1,712.10.</p> <p>Upon the refusal of the defendant to pay said sum, this action was brought for the recovery thereof, and the trial judge directed a judgment in favor of the plaintiff for the amount, with interest and costs. That judgment was unanimously affirmed by the Appellate Division and the defendant now comes here.</p> <p>Under the rule of interstate comity the plaintiff should not be permitted to collect this assessment or enforce this liability against a citizen of this state in this action or upon the facts alleged in his complaint. (Marshall v. Sherman, 148 N. Y. 8; Drinkwater v. P. M. R. Co., 18 Me. 35; Leucke v. Tredway, 45 Mo. App. 507; F. Nat. Bank v. G. M. C. M. Co., 42 Minn. 327; Lowry v. Inman, 46 N. Y. 119 ; Farnsworth v. Wood, 91 N. Y. 308; Hirshfeld v. Fitzgerald, 157 N. Y. 185 ; Hirshfeld v. Bopp, 145 N. Y. 84; Nat. Bank v. Dillingham, 147 N. Y. 603; Tucker v. Gilman, 45 Hun, 193; 121 N. Y. 189.)</p> <p>The plaintiff, who is a statutory receiver appointed by the Superior Court of Pierce county, in the state of Washington, can maintain this action, and it is- properly brought in his name. (Wilson v. Book, 13 Wash. 676 ; Watterson v. Masterson, 15 Wash. 511; Hardin v. Sweeney, 14 Wash. 129; Booth v. Clark, 17 How. [U. S.] 322; Schultz v. P. Ins. Co., 77 Fed. Rep. 375 ; Avery v. B. L. & T. Co., 72 Fed. Rep. 700; Farley v. Talbee, 55 Fed. Rep. 892; Sheafe v. Larimer, 79 Fed. Rep. 921: Howarth v. Ellwanger, 86 Fed. Rep. 54; H. Nat. Bank v. Ellis, 166 Mass. 414; Cushing v. Perot, 175 Penn. St. 66; Patterson v. Stewart, 41 Minn. 84; M. Mfg. Co. v. Langdon, 44 Minn. 37.) The liability imposed upon the defendant as a stockholder of the Tacoma Bank by the Constitution and statutes of Washington is contractual; therefore, transitory, and can be maintained in any jurisdiction where defendant can be found. (Beach on Priv. Corp. § 148; Morawetz on Priv. Corp. [2d ed.] § 875 ; Cook on Stock & Stockholders [2d ed.], § 223; Cole v. S. R. R. Co., 9 Wash. 487; Hardin, v. Sweeney, 14 Wash. 129 ; Wilson v. Book, 13 Wash. 676.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The Mileage Book Act is unconstitutional and void because it deprives the defendants of their property and liberty of contract without due process of law, and also deprives them of the equal protection of the laws, in violation of article 14, section 1, of the Federal Constitution and of article 1, section 6,' of the State Constitution. [L. S. & M. S. Ry.

The nature of the proceeding and the facts, so' far as material, are stated in the opinion. The assessments are. void and petitioner is entitled to have the tax erroneously paid refunded. (Trowbridge v. Horan, 78 N. Y. 439; Cromwell v. MacLean, 123 N. Y. 474; Matter of Adams, 154 N. Y. 619; L. 1892, ch. 686, § 16; Tripler v. Mayor, etc., 139 N. Y. 1; Matter of Kenny, 23 Misc.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The act, chapter 125 of the Laws of 1898, purporting to authorize and direct the payment to the appellant of the entire sum of said liquor tax moneys received by the county treasurer on account of the liquor tax certificates issued in the town of Plattsburgh, is null and void.

<p>Appeal from a judgment of the appellate division of the supreme court in the third judicial department, affirming a judgment of the Otsego county court convicting the defendant of the crime of rape in the first degree, and an order denying a motion for a new trial</p>

This action was brought to recover on an alleged oral contract to insure a certain building in the village of Penn Tan, entered into between George C. Hicks, the plaintiff’s assignor, and Melmoth Hobart, the agent-of the defendant. The facts, so far as material, are stated in the opinion. Hobart, the agent of the defendant, had no power to make a parol contract of insurance binding upon defendant.

Ceoss-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 11, 1897, modifying, and affirming as modified, a judgment in favor of plaintiff entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion. The learned Appellate Division erred in disallowing that portion of the amount recovered by the plaintiff, which was awarded as interest.

<p>1. Constitutional law—Jury.</p> <p>On trial for homicide in the city of New York, the fact that the jury was drawn from a panel which did not include the names of the jurors selected by the special commissioner of jurors under chapter 378 of the Laws of 1896, was not an invasion of defendant’s constitutional rights. 8; Criminal law—Confessions.</p> <p>It is the right and duty of the court to admit evidence of confessions when it clearly appears that it was purely voluntary and entirely free from vices which furnish the ground for exclusion. It is, manifestly, the better rule to resolve in favor of a defendant all doubts as to the character of confessions attributed to him by the submission to the jury of all disputed questions relating to the competency of such statements.</p> <p>3. Same—Technical error.</p> <p>Where there is abundant evidence, outside of the confessions, to establish the defendant’s guilt, the rulings of the court upon these confessions were not material, and did not prejudice the defendant’s substantial rights, and it is the duty of the court of appeals, therefore, in the promotion of justice, to disregard the same.</p> <p>4. Indictment—Statute.</p> <p>A common law indictment “stating the facts constituting the crime, and charging the killing to have been willfully, feloniously and with malice aforethought, is sufficient to sustain a conviction of murder in the first degree, if the proof as to the manner of the commission of the crime brings its within one of the statutory definitions.”</p>

Cross-appeals from' a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 16, 1899, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

<p>1. Constitutional Law — Corporations, When Chabitable. A charitable institution, within the meaning of sections 11 to 14 of article 8 of the Constitution, chapter 771 of the Laws of 1895, and chapter 546 of the Laws of 1896, giving to the state board of charities the right of visitation with respect to all charitable institutions, is one that in some form or to some extent receives public money for the support and maintenance of indigent persons, and by public money is meant money raised by taxation not only in the state at large, but in any city, county or town.</p> <p>2. Private Charitable Institution not Subject to State Inspection. A purely private institution, which, without any compensation from the public, cares for or maintains indigent adults or children who voluntarily seek it as a home, or who remain there voluntarily, is not subject to state inspection or regulation.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. If from the by-law or any circumstance shown there was conferred a power to employ, then in making the contract in question the president and actuary were within their authority.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 25, 1899, reversing an interlocutory-judgment of the Special Term sustaining a demurrer to the complaint. . The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion. An Indian tribe has no legal capacity to sue in ejectment for tribal lands unless authorized to do so by statute.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The leave granted by the Court of Appeals to make this application was given without any condition whatever. (149 N. Y. 531.) The defendant’s necessities require the appropriation of a portion of the income of the trust fund to his support.

The nature of the action and the facts, so far as material, are stated in the opinion. Both notes were barred by the Statute of Limitations. (Code Civ. Pro. § 390; Civil Code of La. art. 3459, 3505, 3528, 3540, 3541; Hawes v. Welch, 2 How. [U. S.] 507; 3 How. [U. S.] 465; 3 N. Y. S. R. 576; A. & T. Co. v. Syme, 51 U. S. App. 48; 168 U. S. 709; Norton v Sterling, 15 La. Ann. 399; N. O. C. Bankmg Co. v. Beard, 16 La.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 11, 1899, affirming a judgment of the Monroe County Court convicting 'the defendant of the crime of arson in the first degree, and an order denying a motion for a new trial.</p> <p>The defendant was jointly indicted with his father, James Smith. The indictment contained two counts. The first count charged arson in the first degree, in that the defendant and James Smith did on the 6th day' of December, 1894, in the town of Greece, Monroe county, unlawfully set on fire and burn in the night time the building and hotel commonly known as the Half Way House of Frances M. Smith, the same being a dwelling house where at the time there was no human being, and six other buildings of the said Frances M. Smith, the first adjoining the Half Way House and the second adjoining the first, and the third the second, and so on, also four other adjoining buildings belonging to other persons. Only one act of arson was charged. The second count charged arson in the third degree by charging the defendant and James Smith with unlawfully and feloniously, setting on fire and burning the same buildings of Frances M. Smith at the place and on the date above named, except the charge that it was in the night time was omitted, and the charge added that the buildings were insured, the intent being to prejudice the insurers thereof.</p>

<p>1. Trial—Jurors—Code crim. prog. § 376.</p> <p>Where a juror stated on examination that he had formed his opinion as to the guilt or innocence of defendant from the fact that he had been removed from his church by the bishop, and that he would naturally be influenced by that action, the omission to' have him declare on oath that he believed that such opinion or impression would not influence his verdict, makes it error for the court to overrule defendant’s challenge.</p> <p>2. Same.</p> <p>The statute, Code Crim. Proc. § 376, requires the inquiry of the juror, in terms as to whether he believes that the opinion or impression that he had would not influence his verdict, and its omission leaves the prima facie disqualification incident to an existing opinion, in full effect.</p> <p>'3. Rape—Proving several distinct offenses.</p> <p>Where the court, under objection, allows the People to prove seven different acts of intercourse, under an indictment charging defendant with the crime of sexual intercourse with a femile not his wife, under sixteen years of age, upon a date named, and then offered to entertain a motion to compel the People to elect upon which transaction it would stand, it constitutes an error in distinct violation of the rights of the defendant.</p> <p>4. Same—Charge to jury.</p> <p>Where the only evidence as to alteration of baptismal records was given by P., H., and IC., and its tendency was not only to establish that defendant did not do the deed but further that he did not have the opportunity, a charge permitting the jury seriously to weigh the speculations of the prosecution based upon defendant’s being in the presence of the record with H. and P. as against the testimony of the last named, and that a copy then made by P. showed no change, was reversible error.</p> <p>5. Same.</p> <p>Declarations made months after the first act of sexual intercourse, by a female under sixteen years of age, for the purpose of excusing the consent to the act are not admissible, nor is there any excuse for suggesting that they were made so by the fact that the hearsay declarations of the comp.ainant as to the name of the person responsible for her condition was perhaps drawn out by the defendant instead of the People.</p>

Motion by the Corporation Counsel, in behalf of the Comptroller of the City of New York, to amend an order made by the Court of Appeals on February 26, 1900. The facts, so far as material, are stated in the opinion.

<p>1. Liquor Tax Certificate not a Chattel—Assignment thereof need not be Filed as a Chattel Mortgage. A liquor tax certificate issued under the Liquor Tax Law (L. 1896, ch. 113) is personal property, but it is not a chattel within the purview of the Chattel Mortgage Act (1 B. S. [9th ed.] 3018), and a transfer thereof as security for a loan is valid as against a subsequent judgment creditor of the assignor, although not filed as a chattel mortgage.</p> <p>3. Estoppel. An assignee of a liquor tax certificate, who allows it to remain in the hands of the assignor, is not thereby estopped from setting up title thereto as against a subsequent judgment creditor of the assignor; and, although such creditor is entitled to reach, through a receiver in suppiementary proceedings, the assignor’s interest in such certificate, subject to the provisions of the Liquor Tax Law, he stands in no different or better position than if he were a subsequent assignee of the certificate as security for his debt.</p>

The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The statute having authorized the construction of the sewer and the discharge of its contents into the tide waters, no liability could attach to the town of Flat-bush without proof of fault either in the method of construction or maintenance of the sewer built under such legislative sanction.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 29, 1897, reversing a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial, and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, made December 30, 1896, reversing a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term and granting a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, , entered March 3, 1897, affirming a judgment in favor of defendant entered upon a decision of the Albany County Court on trial without a jury.</p>

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 23, 1899, reversing an order in favor of defendant entered upon a decision of the court on trial at Special Term. The motion was made on the ground that the Court of Appeals has no jurisdiction to hear the appeal, and that the appeal was not taken within the time prescribed by the Code of Civil Procedure.

Appeal, by permission, from so much of a judgment of the Appellate Division of the Supreme Court in the fourth judicial department as affirms that part of a judgment dismissing the complaint as to the defendant Frederick A. Sherwood, entered upon a decision of the court on trial at an Equity Term.

Appéal from a judgment and order of the Appellate Division of the Supreme Court in the second judicial department, entered, respectively, August 2 and July 9, 1897, affirming a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial.

■ Appeal from a judgment and order of the Appellate Division of the Supreme Court in the first judicial department, etitered, respectively, July 1 and June 29, 189Y, affirming a judgment in favor of plaintiffs, entered upon a verdict, and an order denying a motion for a new trial.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 22, 1897, reversing a judgment in favor of defendants entered upon the report of a referee, and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 8, 1897, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term, añd granting a new trial.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, made November 21, 1899, reversing an interlocutory judgment of Special Term sustaining a demurrer to the. complaint. The question certified was as follows: “ Does the complaint state facts sufficient to constitute a cause of action ? ”