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same way & private owner might, it is liable to the he is not a partner. This question was distinctly presame extent as he would be for the negligent manage- sented in Richardson v. Hughitt, 76 N. Y. 55, and it ment thereof to the injury of others. Oliver v. Ior- was there held that a person who has no interest in the cester, 102 Mass. 489, and cases cited.

business of a firm or in the capital invested, save that In Bailey v. Mayor, etc., of the City of New York, he is to receive a share of the profits as a compensasupru, the court in speaking of the grant for the erec- tion for services or for money loaned for the benefit of tion of the water works, say: “The State, in its sove- the business, is not a partner aud cannot be held as reign character, has no interest in it. It owns no part such hy a creditor of the firm. In that case advances of the work. The whole investment under the law, were to be made upon personal property, to be manuand revenue and profits to be derived therefrom, are a factured and delivered, for which, when sold, the depart of the private property of the city, as much so as fendant was to receive one-fourth of the profits and the lands and bouses belonging to it situate within its his advances with interest at five and a half per cent. corporate limits.” This language is not inappropriate | The case cited is directly in point, the same principle to the case at bar. It is suggestive of facts of a kind- is involved and there is a striking analogy in the facts red nature, wbich contribute toward fixing upon the which renders it applicable to the question now conplaintiff in error, ihvugh a municipal corporation, the sidered. We are unable to perceive any distinction same liability which private corporations or natural | existing between the two cases which authorize a persous would incur for the neglect of their agents holding that is not in point. The case cited was apor servants in the care and management of their prop- proved and upheld in Curry v. Fowler, 87 N. Y. 33, and erty.

the principle decided is fully sustained in Eager v. Upon the facts disclosed by the record, we are of Crawford, 76 id. 97, and Burnett v. Snyder, id. 344. opinion that there was a cause of action in favor of These cases are conclusive upon the question considthe plaintiff below, and that the judgment entered ered, and none of the decisions in this State are adon the verdict for the plaintiff should not be re- verse to the doctrine which is therein laid down. We versed.

do not deem it necessary, in view of the fact that the Judgment of the Court of Common Pleas affirmed. law upon the question discussed is well settled in this

court, to examine the English authorities bearing upon

the subject. Cassedy v. Hall. Opinion by Miller, NEW YORK COURT OF APPEALS ABSTRACT. J.



CREDITOR NOT HAVING NOTICE-ADMISSIONS ment against a person keeping a bawdy house was not

OTHER PARTNERS DO NOT BIND.-A partner who abolished or superseded by the provision of the Code

retires from a firm may be held liable to all persojis of Crim. Proc. as to disorderly persons ($ 889). It is

who had previously dealt with it, and who continued not essential to the validity of a sentence to imprison

to deal therewith until they have notice or knowledge ment in a county penitentiary, under the statute au

of his retiremeut. In Parsons on Partn. (2d ed.) 427, thorizing such imprisonment (Laws of 1874, ch. 209, as

it is said: “The reason of the rule is perfectly obamended by Laws of 1876, ch. 108, that it shall state

vious. They whom he authorizes to think him a part. that the prisoner is “to be received, kept and em

ner may hold him as such; and being a partner, and ployed in the manner prescribed by law and the rules

being known as a partner, he authorizes all to think of the penitentiary." That provision of the statute is

him so who do not know that he has ceased to be one. 10 part of the sentence, but is simply directory to the

If we suppose no fraud on his part, there is negligence keeper of the penitentiary. People v. Sadler, as Super

on his part, and of two innocent persons he should intendent, etc. Opinion by Earl, J.

suffer whose negligence caused the error.” In Story [Decided Oct. 21, 1884.)

on Part. (7th ed.), $ 160, it is said: “Where an os. PARTNERSHIP-SHARE OF PROFITS DOES NOT MAKE. tensible or known partner retires from the firm, he -Defendants, Hall, Nicoll and Granbery, as parties of

will still remain liable for all the debts and contracts the first part, entered into a contract with defendant, of the firm, as to all persons who had previously dealt The U. S. R. Co., which recited that the parties of the with the firm, and have no notice of his retirement. first part contemplated assuming control of said com- This is a just result of the principle that where one of pang, when if ever they shall be satisfied that its busi- two innocent persons must suffer from giving credit, Dess was a profitable one, and that it was expedient

ho who has misled the confidence of the other, and that some arrangement should be made whereby that has been the cause of the credit, either by his reprequestion might be determined; in consideration sentations, or his negligence, or his fraud, ought to sufwhereof and of the mutual covenants and agreements

fer instead of the other.” But the reason for holding it was agreed that the parties of the tirst part, to en- the retired partner goes so far only as to make him able the company to fill its order, should make advan-responsible to innocent persons who continue to deal ces upon assignment of such orders for goods manu

with the firm, presumptively on the faith of his presfactured by the company, as they should approve. ence as a member thereof; and all obligations to such Said parties of the first part to collect each of such persons created in such dealings bind the retired partorders, and out of the proceeds to retain the sum ad- ner just as fully and thoroughly as if he continued to ranced thereon with interest and a proportion of the be a member of the firm. The rule thus defined goes profits made by the company, the same to be not less far enough to protect the former dealers with the than ten per cent of the face of the order. The com- firm. After a dissolution of a firm by the retirement pany also executed to II., N. and G. a chattel mort- of one of the members thereof, it is well settled that page upon its property to secure such advance. In an the surviving members cannot bind him by their adaction to recover for goods sold to the company, held, missions (Brisban v. Boyd, 4 Paige, 17; Walden v. that the contract did not constituie a copartnersbip be- Sherburne, 15 Johns. 409); and it matters not whether tween the parties either inter sese or as to third per- the dealer to whom the admissions were made kuew song. It is well settled that when a party is only in- of the dissolution or not. It is sufficient that at the terested in the profits of a business as a means of com

time the admissions were made the parties making pensation for services rendered, as was the fact under them had no right to bind, represent or act for the the contract in the case at bar, or for money advanced, partner who had retired. In Whitman v. Leonard, 3

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Pick. 177, the following language was used by Parker, lette v. Wendt, 75 N. Y. 580; Juillard v. Chaffee, 92 id. C. J.: “ It is said however that as to a person accus- 535; Ellis y. Willard, 9 id. 531; McMaster v. President, tomed to deal with the the partnership, it continued


55 id. 228; Stanton v. Miller, 58 id. 203; Smith v. until he had notice of the dissolution; but that must Holland, 61 id. 635. But inasmuch as the questiou apply to their usual dealings.” Pring'e v. Leverich. here presented relates to the uncertainty and ambiguOpinion by Earl, J.

ity of the indorsement on the envelope, it is unneces[Decided Oct. 31, 1881.]

sary to invoke the application of this rule in order to

sustain the decision of the court allowing the introCONTRACT PAROL EVIDENCE TO EXPLAIN

duction of parol evidence. Defendant proved that the DORSEMENT ON ENVELOPE-PROOF OF CUSTOM.-In an loan was made for the benefit of ope K. and upon seaction to recover the amount of an alleged loan from curities belonging to him; that plaintiff was advised plaintiff to defendant, the defense was that the loan

for whom the loan was made; and its secretary asked was negotiated by defendant for and upon collaterals to whose order the checks should be drawn; also that belonging to a discharged principal. Plaintiff proved defendant wrote his name upon the envelope at the the delivery of a check to defendant, payable to his

request of the secretary after the loan had been made. order, for the amount of the loan, and produced an Held, that the evidence justified a finding that deenvelope in which were the securities upon which the fendant was not the borrower and did not contract to loan was made; upon this was indorsed the date of

pay the loan. Plaintiff introducing evidence to the the transaction, defendant's name and place of busi. effect that its custom was not to take notes for loans, ness, written by him, the time of the loan, from whom,

but envelopes similar to the one in question, and that the amount of the rate of interest, and then a list of

the use of such envelopes was common at the time. the securities. Held, that the indorsement was not a Held, that this did not affect the character of the incontract, as there was no promise to pay, nor was it

dorsement; that the language employed and the ciran acknowledgment of an indebtedness, or that de

cumstances connected with its use could not be altered fendant was the borrower, and that parol evidence was

or changed by proof of such a custom. Union Trust proper to show that fact. Where the language of an Co. v. Whiton. Opinion by Miller, J. instrument is ambiguous, evidence of the surround

[Decided Oct. 31, 1884.) ing circumstances may be resorted to for the purpose of determining what the real intention is. Brill v. Tuttle, 81 N. Y. 454. Parol evidence may also be in

UNITED STATES SUPREME COURT ABtroduced to show that even when a writing purports to be a contract it may not be such. Grierson v.

STRACT. Mason, 60 N. Y. 397. In the case last cited the defendant has proved a contract and the plaintiff proved au

MORTGAGE-FORECLOSURE-WHEN RIGHT NOT CUT instrument which altered the contract. The defend

OFF.-The conditional surrender of notes secured by & ant introduced evidence to show that the instrument mortgage does not cut off the right to foreclose the was not intended as an alteration of the contract, but

mortgage for their satisfaction in a case where the was executed with the view of accomplishing a par

conditiou is not fulfilled. Howe v. Lewis, 14 Pick. ticular purpose. It was then laid down that such evi- 329; Davis v. Maynard, 9 Mass. 242; Stover v. Wood, dence was not given to change the written contract

26 N. J. Eq. 417. It has been held by many courts by parol, but to establish that such contract had no that a mortgagee cannot, upon a judgment recovered force, efficacy or effect. That it was not intended to

for a debt secured by his mortgage, levy the execution be a contract, and that such evidence did not come upon the mortgaged property. Atkins v. Sawyer, 1 within the ordinary rule of introducing parol evidence

Pick. 351; Wa hburn v. Goodwin, 17 id. 137; Tice v. to contradict written testimony, but tends to explain

Annin, 2 Johns. Ch. 125; Camp v. Coxe, 1 Dev. & B. 52; the circumstances under which such an instrument

Waller v. Tate, 4 B. Mon. 529; Powell v. Williams, 14 was executed and delivered. It is also stated that the Ala. 476; Carpenter 1. Bowen, 42 Miss. 28; Linville v. purpose for which a writing was executed may be

Bell, 47 Ind. 547. But whether this be the established proved by parol when not inconsistent with its terms.

rule or not, it requires no authority to show that a If the rules stated are applicable where there is a com

sale of the mortgaged premises upon a judgment replete contract, much stronger reasons exist for invok

covered on a part of the notes secured by the morting them where the terms of the contract are uncer

gage does not preclude the holder of other notes se tain and ambiguous, as is the fact in the case at bar. cured by the same mortgage from proceeding to foreThe rule appears to be well established, that even

close it. A sale on such a judgment could only affect although a contract is made out, if any ambiguity

the equity of redemption, and would leave the rights arises in reference to any portion of it, the question

of the holder of other notes secured by the mortgage presented is one of fact for the consideration of the

unaffected. Pugh v. Fairmount Gold and Silver Minjury, upou such testimony, either in writing or oral,

ing Co. Opinion by Woods, J. as the parties are able to present. See Brill v. Tuttle,

[Decided Nov. 10, 1884.] 81 N. Y. 460; Field v. Munson, 47 id. 223, and Fabbri CONSTITUTIONAL LAW-STATUTE TO BE CONSTRUED v. Ins. Co., 55 id. 133. The cases are numerous which

IN HARMONY WITH CONSTITUTION-MUNICIPAL CORsanctiou the introduction of evidence which will cast

PORATION-SUBSCRIPTION TO RAILROAD INVALID — light upou those terms in the contract which are not SUBSEQUENT ACT LEGALIZING.-(1) That construction clear and explicit, and serve to explain what the real of a statute should be adopted, which without doing intention of the parties was. This rule has been heid violence to the fair meaning of the words used, brings to apply particularly to insurance cases of an analogous it into harmony with the Constitution. Cooley Coust. character where the language is uncertain and ambig- Law, 184, 185; Newland v. Marsh, 19.111. 384; People v. uous as to the interest intended to be insured, and it Supervisors, 17 N. Y. 241; Colwell v. May, 4 C. E. is held that parol evidence is admissible to place the Green, 249. And such is the rule recognized by the court in a position to be able to ascertain what inter- Supreme Court of Mississippi in Marshall v. Grimes, 41 est the insured has, and what was intended to be cor- Miss. 31, in which it was said: “General words in the ered by the policy. Pitney v. Glens Falls Ins. Co., 63 act should not be so construed as to give an effect to it N. Y. 13. Numerous cases sustain the rule that ad- beyond the legislative power, and thereby render the missions, whether oral or written, may be explained aot unconstitutional. But it possible, a construction or contradicted by parol or other evidence. DeLaval- should be given to it that will render it free from con

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stitutional objection; and the presumption must be deed to H. of land of B., in trust, for the use of $. durthat the Legislature intended to grant such rights as ing her life, and at any time, on the written request of are legitimately within its power.” Again in Sykes S., and the written consent of B. to convey it to

. Mayor, 55 Miss. 143: “It ought never to be assumed such person as S. might request or direct in writ-
that the law.making department of the government ing with the written consent of B. Afterward B. made
intended to uşurp or assume power prohibited to it. a deed of the land to W., in which H. did not join,
And such construction (if the words will admit of it) and in which B. was the only grantor, and S. was not
ought to be put on its legislation as will make it con- described as a party, but which was sigued by S. and
sistent with the supreme law.” (2) A municipal sub- bore her seal, and was ackuowledged by her in the
scription to the stock of a railroad company, or in aid proper manner. Held, that the latter deed did not
of the construction of a railroad made without author- convey the legal title to the land, and was vot made in
ity previously conferred, may be confirmed and legal- execution of the power reserved to S. It needs not
ized by subsequeut legislative enactment, when legis- much argument or authority to support the conclusion
latiou of that character is not prohibited by the Con- at which we have arrived. In Agricultural Bauk v.
stitution, and when that which was done would have Rice, 4 How. 225, 241, it was held that in order to con-
beeu legal had it been done under legislative sanction vey by grant, the party possessing the right must be
previously given. In Sykes y. Mayor, 55 Miss. 137, it the grantor, and use apt and proper words to convey
was held that after the Constitution of 1869 took ef- to the grantee, and that merely signing, sealing, and
fect, the Legislature could not, by retrospective enact- acknowledging an instrument, in which another per-
meut, make valid an issue of municipal bouds executed son is grantor, is not sufficient. In the present case, if
prior to the adoption of that instrument, without leg. S. possessed the right, she was not the grantor, and
islative authority; because, said the court, “the meas- used no words to convey her right. No intention on
ure of its power was the Constitution of December, ber part to execute the power she possessed appears in
1869, and it could not ratify an act previously done, if the deed. Warner v. Connecticut Mut. Life Ins. Co.,
at the date it professed to do so, it could not confer 109 U. S. 357, and cases there cited; Story Eq. Jur., $
power to do it in the first instance. It could author- 1062a. Moreover H. possessed the right, and was not
ize a municipal loan conditionally. In order to ratify the grantor, and was not requested or directed by S.
and legalize a loan previously made, it was bound by to convey. 2 Perry Trusts, $ 778. Batchelor v. Brere-
the coustitutional limitation of its power.” Further ton. Opinion by Blatchford, J.
in the same case: “The idea implied in the ratifica- [Decided Dec. 1, 1884. ]
tion of a municipal act performed without previous
legislatire authority is that the ratifying communicates
authority which relates back to and retrospectively

rivities and legalizes the act, as if the power had been
previously given. Such statute is of the same import

as origival authority. * * * If the Constitution

Editor of the Albany Law Journal:
had altogether denied to the Legislature the delega-
tion of such power to counties, cities, and towns, it is

I have been somewhat surprised to observe that the manifest that it could not vitalize and legalize a sub

very interesting discussion on the subject of relief to

the Court of Appeals, which was carried on in your scription made before its adoption, and without authority of law. If that be so, it follows that in deal.

columis a year ago, has not this year been renewed. ing with the subject at all, it is bound by the limita

It is not because the danger then dreaded has passed tion of section 14 of article 12 of the Constitution.” In

away. On the contrary, what was then only a safe Cutler v. Board of Supervisors, 56 Miss. 115, the ques

prediction has now become a disastrous reality. The tion was as to the power of the Legislature to ratify present calendar of the court bas 782 causes already and legalize certain municipal bonds issued to a rail

upon it, which will be added to during the year by road corporation by a county board of supervisors in

appeals from orders and from certain preferred causes; pursuance of a vote of the people, with interest cou

and the court, with all possible diligence, does not anpous attached, payable semi-annually. The statute

mually dispose of more than about half of the number under which the board proceeded authorized bonds

of cases that will thus be brought before it. If it diswith interest payable annually. The people however

poses of the first 400 cases on its printed caleudar, it roted for bonds with interest payable semi-annually.

will get by next December to cases where the return The court sustained the constitutionality of the cura

was filed in December, 1883. Of the appeals from tive act. It was said: “This is far from being an ef

judgments not preferred the first that will be reached fort to impose a debt on the county without its con

in the regular order are cases where returns were filed sent. The agreement of the people of the county to

in the latter part of 1882. In other words, the court is incur the debt, in the precise shape wbich it assumed,

now more than two years behind on its ordinary work, bas been expressed. Their representatives, the county

and is rapidly and steadily falling still further behind authorities, in execution of that will, have delivered

band. the bonds, and the Legislature afterward affirmed.

What is to be done? The evil grows by what it feeds

If there has been any departure from the letter of the

on, for delay always tempts debtors defeated in the original authority, it acquiesces in such deviation,

courts below to take frivolous appeals for the sake of cures the irregularity, and makes valid the bonds. The

that delay alone. If any relief is to be afforded to the principles announced in Supervisors v. Schenck, 5

court, and to the suitors who have business before it, Wall. 776, 789, fully support these views.”

that relief should be afforded at once.

These doctrines are in accord with the views of this court as in

Two kinds of remedies have been proposed: one by Ritchie v. Franklin, 22 Wall.

increasing the number of judges; the other by limit. 67; Thomson v. Lee Co., 3 id. 327 ; City of Lamson, 9

ing the number of appeals. id . 485; St. Joseph v. Rogers, 16 id. 663; Campbell v.

As to increasing the number of judges, it is quite City of Kenosha, 5 id. 194.' Board of 'Supervisors of apparent that that remedy not only involves an amendGrenada Co. v. Brown. Opinion by Harlan, J.

ment to the Coustitution, but that to be really efficacious there must be a division of the court into two or

more branches of equal powers. The evils of such a DEED-VON-EXECUTED BY ONE NOT DESCRIBED AS

division seem to me too obvious for extended comGRANTOR.-S., the wife of B., joined with him iu a

ment. Possibly an increase of two judges to the

dicated in several cases.

(Decided Nov. 17, 1884.)

force of the court might enable it to do a little more General Term ought not to be taken as so conclusive an work than at present.

adjudication that a debtor should be compelled to part The other remedy, of discouraging appeals, seems to with his property at an inconvenient season. The prome to be in the right direction. That the Court of portion of cases reversed after affirmance at General Appeals should not be called on to decide any but sub- Term cannot be exactly stated, because the reports do stantial and serious controversies, involving import- pot in all cases state the action of the General Term. ant or novel principles of law, every one will admit; With cases where the appeal is from a judgment of rebut how to rid it of frivolous appeals is a matter upon versal, I have nothing to do. which it will be difficult to secure an agreement. The But taking the last four volumes of New York Remethods thus far suggested are either by a limitation ports I find 357 cases affirmed, 135 reversed, 10 modi. the amount involved, which is entirely wrong in priu-fied, and 51 appeals dismissed. Of the judgments either ciple, or by putting it in the power of the courts below affirmed or reversed absolutely the proportion would to refuse leave to appeal, which is open to the same be about 73 per cent affirmed to 27 per cent reversed. objection, and would probably prove iueffectual in Now wise legislators seek to attain, not flawless perpractice.

fection, but such a state of things as shall on the whole Now the chief inducement to making frivolous ap- work out the best results. Are we then to legislate peals is undoubtedly the fact that the appellant is ev. for the 135 reversals or for the 357 affirmances ? Surely abled to remain in possession of the subject of the liti. for the latter. It may no doubt be hard on a party, gation during the whole period of the pendency of the unjustly defeated below, to part with his property appeal. He may have the verdict of a jury against while he is seeking redress; but it is just as hard, and him, and the well-considered judgment of a General three times more common, for the party justly successTerm, but if he can get a couple of easy friends who ful below to be deprived of his property while his will swear through their qualifications, he files his bond wealthy adversary in vokes "the law's delay." and gets the delay of years as a matter of course. At Of course the figures bere given do not accurately the end of some indefinite period, if the case is af- measure the proportions of cases to be affected. Of firmed, the respondent has a judgment wbich may or the 135 cases reversed, some are cases where the Genmay not be collectible against the judgment debtor, eral Term has reversed the judgment or order below. and he has the materials for a law suit against the In other words, out of the 492 cases in question, the gureties. No lawyer needs to be told how this fataj rule I suggest would have done good, or no harm, in facility for postponing the evil day of payment multi- more than 357; while it could only have worked hardplies appeals, and how frequently the threat of “hang- ship in less than 135. Besides where the judgment being up" a case for years is used by debtors to force low was only for costs, the hardship would be infinneedy creditors into settlements of just debts. And itesimal in most cases. there are few lawyers who do not know of cases that The statistics above referred to show another rehave gone to the Court of Appeals only to end in vain markable feature. The decisions in the last four vol. attempts to collect judgments against a principal and umes of the Court of Appeals may be thus classi. gureties. All become alike insolvent during the pend.fied: ency of the appeal. No one can doubt that if defeated 93 N. Y., 33 cases reversed, 73 affirmed. debtors were compelled to pay np after the decision of 94 N. Y., 36

88 a General Term against them, they would not be so 95 N. Y., 31

87 ready to appeal.


109 I would not of course deprive defeated debtors of It will be observed that while the number of revers. their right to appeal. I would only restrict their als reported remains nearly constant, the number of power to oblain a stay of proceedings by abolishing en- affirmances has of late greatly increased. This would tirely undertakings to stay execution, pending an ap- seem to indicate just what is to be expected in the peal to the Court of Appeals, where the judgment of present condition of affairs, to wit: a marked increase the General Term was a judgment of affirmance. It in the number of frivolous appeals, which the court the appellant preferred not to trust the ability of the usually disposes of by affirmance, without opinrespondent to make restitution in case of reversal, he ion. could pay the amount with interest, etc., iuto court On going back to 83 N. Y., the present increase in (as under $ 1306 of the Code), and so get a stay: but I affirmances is very clearly shown for the numbers would in such cases allow the respondent to withdraw there are 35 cases reversed to ouly 63 affirmed. the fund on giving an undertaking for restitution, with I do not think that the adoption of my suggestions sufficient sureties. Similar principles might be ex- would prove a panacea for all the ills of which the tended to appeals from the affirmance of judgments court is suffering. It is merely one of several reme. directing the delivery of property, or the recovery of a dies which might all be administered together, and chattel or of real property. The respondent, not the which, though not separately very important, would appellant, should have possession during the pendency together work a considerable change for the better. I of an appeal to the Court of Appeals on giving a bond would, for instance, increase largely the present costs against waste or the like.

of appeal. I would limit the right of appeal from orThe result of some such provisions would probably ders which “decide av interlocutory application or : be not only to discourage many frivolous appeals, but question of practice”-perhaps by allowing such apto induce greater care in the argument and decision of

peals only when leave was given by the court below. cases at General Term, and also to remove some of the It might be well also to refuse costs below to the plaininducements to defending cases solely for purposes of tiff where his recovery was such that the action might delay. The debtor now takes all the chances of success have been brought in the County Court or other simiin the Court of Appeals, and meanwhile borrows lar tribunal. Such a rule would work no hardship at money of his successful creditor at the absurdly low this end of the State, as the excellent record of our rate of six per cent interest and costs. A judgment City Court shows. How it would do in other parts of debtor who can obtain a loan for two or three years on the State I do not know, but it would seem to be reasuch terms must be foolish indeed if he does not ap- sonable, and would certainly be effective in relieving peal.

both the Court of Appeals and the Trial Terms of The argument against the plan I suggest will of the Supreme Court and Superior City Courts. course be that inasmuch as many cases are reversed in Whatever plan is adopted, it must be one that is selfthe Court of Appeals, the mere fact of an affirmance at executing. We can leave nothing to the discretion of

96 N. Y.,

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judges in this matter. It has long been the rule that spirit of the proposed bill by devices wbich honest men judges must cut down and limit the verbosity of cases would not resort to. There is some force in the objecon appeal, but the rule is continually and persistently tion, but I think there are sanctions in the measure disregarded. The Court of Appeals has power to wbich would stop such practices. For example, award damages for delay, and it is understood that in the unscrupulous candidate will be exposed to many fifteen years they have not once exercised that davgers; the grand jury, the press, and the zeal of the power.

party managers of the unsuccessful party. Moreover Before any plan of relief is submitted to the Legisla- the unsuccesful candidate will be prone to suspect his ture the judges of the Court of Appeals must be pre- successful rival. Que conviction wider tbe proposed pared to express their opinion. A plan, carefully con- law would be likely to make the unscrupulous man sidered and worked out in all its details, would doubt- hesitate. less command the immediate approval of the Legisla- I inclose a copy of the proposed bill in the form in ture and the governor, if assented to by the judges of which I think it should be adopted. the court, aud till their assent is secured no relief is

Very truly yours, possible.

NEW YORK, Feb. 10, 1885. ARTEMAS H. ADAMS. Meanwbile, discussion is not without its value.

A Bill to Prohibit and Punish Soliciting from Judic

NEW YORK, Feb. 5, 1885.

ial Officers or Candidates for Judicial Offices, and the

Payment by such Candidates of Assessments, SubPOLITICAJ, CONTRIBUTIONS FROM CANDIDATES FOR

scriptions or Coutributions for Political Purposes. JUDGESHIP

The People of the State of New York, represented in

Senate and Assembly, do enact as follows:
Editor of the Albany Law Journal :

SECTION 1. No person shall, directly or indirectly,
The proposed bill, to prohibit the soliciting of politi-

solicit or be in any manner concerned in soliciting any cal assessments from judges or candidates for judicial offices and the payments of such assessments by such

assessment, subscription, or contribution in money or candidates, has been received with so much favor by

property, of any kind or value whatsoever, for any po

litical purpose from any person holding the office of gentlemen whose judgment is entitled to great respect, that I am encouraged to press it and to urge

judge or justice of any of the courts named in Artiothers to promote it.

cle First of Title 1 of Chapter 1 of the ('ode of Civil The evils sought to be corrected may not exist else

Procedure; or from any person who is a nominee or

candidate for election to the office of judge or justice where, but in the First Department they have grown until they have become glaring and disgraceful. I

of any of said courts. will instance examples of these evils. It is the com

Sec. 2. Any person who shall violate the provisions

of the next preceding section of this act shall be guilty mon report, and my information leads me to believe

of a misdemeanor, and shall, on conviction thereof, be the report to be true, that it is the practice here for

punished by a fine, not less than one thousand dollars, party managers to request a political contribution, of a fixed amount, from such of the judges in office as

or by imprisonment for a term not less than one year, were elected by the party to which the party managers

or both. belong

SEC. 3. Any person, being a nominee or candidate

for election to the office of judge or justice of any of The request is made annually and it is more than a request, because there is an implied threat that if the

the courts referred to in section one, who shall within

three months prior to his election or appointment to request is not complied with the judge will forfeit the support of the party managers.

any such office, directly or indirectly subscribe or pay,

I have also heard it said that in some cases there bas been an understand

or promise to pay, or who shall cause or induce any ing, that an annual coutribution should be made as a

other person to subscribe or pay, or promise to pay, condition of receiving the nomination.

any assessment, subscription or contribution, in money Within six years a bid of $25,000 was made, to my

or property of any kind or value whatsoever, for any knowledge, for a nomination for a judgeship. The bid

political purpose, shall be guilty of a misdemeanor,

and shall, on conviction thereof, be punished by a fine, was declined, but the gentleman who received the

not less than one thousand dollars, and by imprisonnomination was compelled to apply to his friends for

ment for not less than one year, and shall also forfeit loans of money to enable him to pay the required as

his office.
sessment. The bidder referred to was not discouraged
by the first failure and has renewed the offer on
more than one occasion since, happily without suc-


AND BELIEF. In a conversation last summer with one of our Editor of the Albany Law Journal : judges, whom I have heard described, and justly, I

In the case of Pratt Manufacturing Co. v. Jordan think, as the best all-round judge in this department,

Iron and Chemical Co., 33 Hun, 143, the General Term he remarked that if his term of office was about expir- of the First Department, Daniels, Davis, and Brady, ing be could not hope for a renomiyation, because he JJ., are reported as holding that an answer denying could not pay the assessment of $25,000, which would the allegations of the complaiut on information and be required.

beliel, is bad, and should be stricken out. The nominations for judicial offices at the election

lu the 21st of Hum, in the case of Brotherton v. Douin November last occasioned much discussion and gos- ney, p. 436, the General Term of the same department, sip among the bar. It is said that of the unsuccessful Davis, Barrett, and Ingall8, JJ., held that such a decandidates one was assessed and paid $30,000, another nial was not only proper, but that a party had no right

to interpose an unqualified devial in a verified answer, I have referred to some of the most glaring of the

unless it be founded upon personal knowledge, and that evils, and I have no doubt that other examples could

where he has no positive knowledge, but has knowlbe given and substantiated.

edge or information sufficient to form a belief, he is It is to correct such evils that the measure was de- not only permitted, but “bound at his peril

to deny signed.

upon iuformation and belief. It has been suggested that one effect of the measure

In the case first cited, reported 33 Hun, 143, no would be to restrict the candidates to unscrupulous

allusion is made to the prior decision in Brotherton v. men who would not hesitate to defeat the letter and


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