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is the act of the master. In the Cortland case, fendant was given property by the prosecuting the engine had become unsafe, and it required witness to deliver at the latter's house, and to be repaired and a mechanic was employed to defendant sold it, he might be convicted of repair it; and his negligence is held there to be larceny. the negligence of the master because it was in

“ The defendant was convicted of petit larthe performance of a duty which the masters ceny. The evidence tended to show that the owed, and that duty was to furnish safe machin-defendant was employed by one Wigginton to ery and a safe place to work.

carry him from his home by conveyance to the It has become settled, however, now, that if depot, where he intended to board a train. a master has furnished competent servants and Arriving at the depot, Wigginton left with the safe machinery, that the use of that machinery, defendant a quilt, to be returned to his home, however negligent, and by whomsoever used, which the defendant agreed to do. The deis not attributable to the master. I think the

fendant carried the quilt to a store and traded case practically establishes that. But

it off for an amount much less than its value. whether it does or not, there are cases, and

The defendant requested the court to charge many cases, which hold that very conclusively. the jury that: “If the jury believe from the In this case the master had furnished two cars

evidence that the witness Wigginton delivered — two different kinds of cars or trucks; the the quilt to the defendant, to be conveyed high truck and the low truck. It does not back to Wigginton's home, and that the quilt appear why one was used in preference to the

was received by the defendant for that purpose, other. He had also furnished the proper and, after so receiving the quilt, the defendant stakes or side-bars to those trucks, but they

conceived the intent and purpose to wrongwere not used.

It is impossible that a master fully dispose of it, he is not guilty as charged.' himself can control the detail work of any

One of the difficulties in distinguishing becorporation or any private business of any

tween larceny and embezzlement consists in the size. This injury arose from negligence which

fact that in larceny there must be a trespass, was connected with the detail work, and I am

and a trespass is a wrong to the possession. frank to say that while this morning I was in some doubt, from the examination I have A bare charge of or custody of goods which bemade, my mind has been removed, and I long to another does not divest the possession

of the owner. It has, therefore, been held that think there is no possible question, and that

a servant or other person, having the mere custhis case cannot be sustained even if Mr. Hemmingway was negligent, which we will assume tody of goods, may commit larceny of them (2 for the argument, for these cases hold that his Bish. Cr. Law, $8 82 3, 824, note; 2 East P. C., negligence is not the negligence of the master, 565; 1 Brick. Dig., p. 482, 8 487; 12 Am. &

Eng. Enc. Law. 768). In Oxford v. State (33 but is purely the negligence of a co-servant.

This is one of those unfortunate accidents Ala. 416, 418) it is said: “It is a clear rule of which no one can be made to pay for, at least law that, where a party has only the bare charge no employer. Whatever liability there may be and custody of the goods of another, the legal on the part of Mr. Hemmingway to this man I possession remains in the owner; and the party do not discuss, but so far as the liability of this in custody may be guilty of trespass and larceny defendant to this plaintiff, I can find no such in fraudulently converting the same to his own liability in the facts here proven.

I assume

use.' In Rosc. Cr. Ev., $ 646, it is said: 'In that there is no proof in this case whatever to order to render the offense larceny, where there go to the jury upon the question of the com is an appropriation by a servant, who is already petency of Mr. Hemmingway. I cannot see in possession, it must appear that the goods any proof that will make an issuable fact, and

were at the time in the constructive possession the motion for non-suit must, therefore, be of the master. They will be considered in the granted.

constructive possession of the master if they

have been once in the possession of the master, The Supreme Court of Alabama in Holbrook and have been delivered by the master to the v. State, 18 S. R. 109, held that where the de- , servant. But if the goods or money have come to the possession of the servant from a third of 1880, for the purpose of reviewing the action of person, and have never been in the hands of the the above defendants in assessing the relator for all mister, they will not be considered to have been

sums invested in its business in this State in the in the constructive possession of the master, for years 1893 and 1894, a separate writ having issued

for each assessment. The defendants were commisthe purposes of larceny.

The ruile

sioners of taxes and composed the Board of Taxes has never been doubled,' &c. In the case of and Assessments of the city and county of New Siate v. Washington (17 South. 546) we held | York, and they made an assessment in cach of the that the statute (Code, $ 3795) creating and de- above years against the relator, which is a foreign fining embezzlement, did not, and was not in corporation having money invested in this state, tended to, convert that which was larceny at such assessment being based upon the provisions of common law into statutory embezzlement. The the act, chapter 37 of the Laws of 185:7, one section general rule, that to constitute larceny the of which reads as follows: “All persons and assofelonious intent must exist at the time of the ciations cloing business in the State of New York 'taking and carrying away,' does not militate as merchants, bankers or otherwise, either as prinagainst the rule of constructive possession by and not residents of this state, shall be assessed

cipals or partners, whether special or otherwise, the owner, the defendant having but the bare and taxed on all sums invested in any manner in custody, received from the owner, and, having said business the same as if they were residents of such bare custody, fraudulently converts the this State, and said taxes shall be collected from the money or goods. We are of opinion, under property of the firms, persons or associations to the facts of the case, that the court did not err which they severally belong." The relator disputes in refusing the charge requested."

the validity of each assessment. The defendants,

in 1893, assessed the relator at a certain sum, after The People OF THE STATE OF New York ex rel. dcducting that portion of its indebtedness which

The HECKER-JONES-JEWELL Milling Con- they decided had been incurred in this State in the PANY relator and appellant v. EDWARD P. purchase of property herein, and in 1994 they made BARKER, John WHALEN and JOSEPI BLUMEN

an assessment without deducting any of the indebtTHAJ,, as Commissioners of Taxes and Assess

edness of the relator whatever. The relator claims ments of the City of New York, respondents that the defendants, in 1893, did not deduct all its

indebtedness which had been incurred in the purAppeal from orders entered at General Term, affirming the action of the Commissioners of Taxes

chase of property within this State, and that if they and Assessments in assessing the personal property made against it here.

had done so, there would have been no assessment

It also claims that the assessof the relator for the years 1893 and 1894.

ment of 1894, was void because of the refusal of Where there is some evidence to support the conclusion the defendants to make any deduction whatever for reached by the Commissioners of Taxes and Assess

any indebtedness. The reason for the difference in ments, this court will not interfere. It was made to appear by the record in the proceeding the two assessments is based by the defendants upon brougbt for 1893 that the company had assets at its

the decision of this court in People ex rel. Thurberhome office enough to permit a deduction of all in- Whyland Co. v. Barker et al., reported in 141 V. Y. debtedness asserted, and no indebtedness was claimed 118. for the purchase of property in this State. The mean- That case was decided here subsequent to the ing of the words in chapter 37 of the Laws of 18.55,

assessment of 1893 and prior to that of 1894. The “in any manner invested in business in this State,"

defendants were of opinion that the decision in refers to property paid for and in the posses sion of the persons or associations doing business in question covered this case and obliged them to this State or to such increase beyond any indebtedness assess the relator without making any deduction for incurred as may be established by competent proof any indebtedness whatever even though such inupon the application to the Tax Commissioners.

debtedness or some portion thereof were incurred The People es rel. The Thurber-Whyland Company against in the purchase of the assets in this State for which

the Tax Commissioners (page 11 N. Y. Reports, page 118) explained and distinguished.

the assessment of 1894 was made.

Prior to the time for finally making the assessBowers & Sands (John M. Bowers of counsel) for

ment for each of the two years 1893 and 1894 rethe relator and appellant; Francis M. Scott (David spectively, the relator rendered to the defendants a J. Dean and James M. Ward of counsel) for the re

verified written statement of the condition of the spondents.

company as of the second Monday of January in PECKHAM, J.-. The above relator obtained two each of such years. The statement of 1893 shows writs of certiorari under chapter 269 of the Laws that the total gross assets in all parts of the world

then belonging to the relator then amounted to $4,615,326.07. No explanation is vouchsafed for $4,6.5,326.07, and from that sum it was claimed these seemingly most unfortunate investments. It should be deducted the amount assessed against it might, perhaps, be thought there was a mistake in for its real estate, being $451,300, and the sum of the record from which I have quoted, and that the $2,500,000 for bonds issued by it, and also $2,567,- stock had, in fact, never been issued to any such 000 for further indebtedness incurred by it in the amount. The statement for 1894 would seem to course of its business, thus claiming a total of de show there was no mistake of that nature, for it is duction for indebtedness (including the assessment there stated that the entire share capital, except for real estate, of $5,518,300,) or almost a million the twenty shares already spoken of, and the entire of dollars of debts over assets, and reducing the issue of bonds, except the 820 sold for cash, were assessment, of course, to nothing.

exchanged for property. Ten millions of investIt does not appear that any receiver of the com

ments in five months, and at the end thereof less pany has been appointed or applied for, or that any five millions left. In January, 1895, its relative proceedings have been taken or were contemplated condition was about the same; its gross assets had for the winding up of what, by these statements, shrunk from $4,615,326.07 to $3,466,919, being conwould appear to be a hopelessly insolvent concern. siderably over a million of dollars, but its indebtedThe president of the company was examined in

ness was less by $1,046,500. regard to the assessment of 1893, before the com

And yet this (seemingly) insolvent corporation is missioners, and he testified that the company was

paying interest on its bonded indebtedness and organized August 27, 1892, less than seven months dividends upon its stock. These facts call for exprior to the making of this statement.

The president further testified that the nominal capital was

planation. There is no doubt that the astute and

able counsel for the city would have made the effort $5,000,000, $2,000,000 of preferred and $3,000,000

to obtain it had not the defendants proceeded upon of common stock; that $2,000 in cash were paid into the treasury for twenty shares of its capital the theory as to the tax of 1894 that the amount of stock at par, and that sum was paid out for corpora

indebtedness was in any aspect immaterial, and the

amount of assets in this State was sufficient for an tion expenses. He was unable to state whether in

assessinent for 1894, which would be fair if no deissuing the stock at the time the company was organ- duction for indebtedness were allowed. As to the ized it acquired anything beyond the tangible assets

assessment for 1893, in which there was some allowof the firm or parties whose property was pur

ance for indebtedness, the relator claims that the chased. The first meeting of the directors was

entire face value of three of the items entering into held August 27, 1892, and at that meeting its bonds secured by mortgage were issued, and 820 of them,

that assessment, viz., for machinery and tools, office of $1,000 each, were sold for cash at par, and the

furniture and horses and trucks, making total of

over $800,000, should have been deducted in addimoney brought into New York and deposited in the bank with which the company did business, and tion to the amount already allowed by the defendwas subsequently used for the purchase of merchan-apts for indebtedness incurred for the purchase of dise used by the company. The question was then

assets in this State. The decision of the defendasked of bim: “And the rest of the capital stock ants in this regard as to what amount of indebtedand the balance of the bonds were issued in ex- ness was actually incurred in the purchase of the change for real and personal property ?” and he assets in this State in 1893 was made upon a quesanswered “Yes."

tion of fact, in regard to which the evidence on the From this statement of 1893, and from the exami- part of the relator was by no means of that clear pation of the president of the company, it appears and convincing character which could leave no that all but $2,000 of its capital stock of $5,000,000, i doubt as to the fact. The assessment itself deand the $2,500,000 of its bonds, liad been issued in pended also upon the different kinds of property exchange for property, real and personal, between making up the assets of the relator in this State, 27th day of August, 1893, and the second Monday and it was not made at all plain as to what the real of January, 1894, the cash for the $820,000 of and true value of such assets was. We do not feel bonds issued having been used for the purchase of called upon to review and reverse the determination merchandise. Further than this, it appears that of the defendants as to the true amount for which $2,567,000 of further indebtedness had been in the relator should be assessed for the year 1893. curred upon its notes for borrowed money, loans to There was some evidence to support their determiit on collateral and on bills for merchandise. This nation, and that is sufficient for ns. It is not plain would make about $10,000,000 invested by the rula- that any erroneous theory of assessment tor within this short period, and yet it makes a adopted. statement that its total gross assets existing on the The orders of the Special and General Terms second Monday of January, 1893, amounted to but I will, therefore, as to that assessment, be affirmed.


We are now brought to the consideration of the portion of it, and promises to pay the balance at assessment for 1894, founded upon the Thurber- some future day? This relator is engaged in the Whyland Company case above referred to.

business of milling in this State. We think an erroneous use has been made of the

Suppose it brought $100,000 into this State and decision of this court in that case, and that the as- bought $200,000 worth of wheat to be manufacsessment now before us for 1894 must be set aside. tured into flour, and paid for it with the $100,000 Upon another examination of the question, carried in cash, and gave its notes for the balance, the on by the defendants, commissioners, a more thor

ownership of the wheat passes to the relator by the ough investigation may be made, so far as it shall

purchase, and in that sense it can be said it owns appear necessary, for an accurate assessment against wheat to the amount or value of $200,000. Has it, the relator for all sums invested by it in this State.

however, under this statute, invested in this State The question is as to the true construction to be

any sum beyond the $100,000 which it paid in cash given those words of the statute which provide that for the wheat? Is its promise or liability to pay the all persons non-residents of the State and doing

other $100,000, a sum invested in this State by it, business herein “shall be assessed and taxed on all

and is it the same as cash for the purpose of taxasums invested in any manner in said business the tion? Is the fact that the company has in its possame as if they were residents of this State," etc.

session as ostensible owner the $200,000 in value of The case of the Thurber-Whyland Company held

wheat conclusive evidence that the company has inthat a foreign company having assets in a foreign vested that sum in its business in this State, when State could not invest some of its capital here and in truth it has paid a sum amounting to but half its rightfully claim a deduction from such sum invested value, and has promised to pay the balance at some of all its indebtedness. That company

admitted an future time? It seems to us there can be but one investment here of at least $750,000, and its total

answer to these questions. The sum invested is the indebtedness was over $1,200,000, consisting of sum paid, and not the sum which is promised to be open accounts and of bills payable. There was no paid on a future occasion. It is true the purchaser claim set up as to the right specially to deduct the has in its possession wheat to the value of $200,000, specific indebtedness arising upon the purchase of but it cannot be said to have invested $200,000 in the very assets in New York in regard to which the the purchase of the wheat as long as it has in fact assessment had been made. Very possibly lan-paid but one-half that sum and has simply promised guage was used in that case in the course of the

to pay the other half at a future day. opinion which might be capable of a construction

No part of the value of the wheat is lost to taxabroader than was called for by the facts appearing tion by this holding; neither is the sum which was in that record. it would be but another illus- brought into the State by the relator and invested tration of the truth and importance of the principle in the wheat. The vendor of the wheat is taxed which makes it necessary to construe the language for the $100,000 he has received as part payment used in judicial opinions strictly with reference to for the same, and he is also taxed for the $100,000 the facts which exist in the case which is decided. of notes he has received from the purchaser of the It was stated in that case that the Court was of wheat on account of the balance due for the puropinion that the act did not contemplate the de- chase money, and the relator is taxed the $100,000 duction of debts from the sum invested in this cash it has brought into the State and invested in State by non-residents. As then applied, the lan- this wheat, and there is thus an assessment of guage was appropriate, although it might well have $300,000 made between these two, the vender and been more definite and precise.

the vendee of the wheat, and that is all the propThat company had assets at its home office enough erty that is then subject to taxation. To tax the to permit a reduction of all indebtedness asserted, full value of the wheat in the hands of the purand there was no claim that was argued that any of chaser is, in reality, to tax the purchaser on its own it had been incurred in the purchase of property indebtedness. Its promise to pay in the future the in this State, which formed the basis of the assess- other $100,000 is not a sum invested by it here ment. Under such circumstances we held, and, as until it has redeemed its promise and paid its notes. we think, properly held, that the place for the de- The transaction is, in truth, substantially the same, duction of general indebtedness was the residence whether the payment has been secured by a chattel of the person or corporation, and that the sum in- mortgage on the wheat or not, hough, if the payvested here should not be diminished by a deduc- ment have been thus secured, the purchaser has not tion of any part of such general indebtedness. even obtained an unincumbered title to the wheat

The question we are now to decide is, what is the until the payment is made. And so long as the sum invested in this State by a foreign corporation property purchased has not been paid for in full, which purchases property here and pays cash for a then the amount still due upon it ought to be de.

If so,



ducted as not representing any sum invested by the enough outside of such investment to render it inpurchaser in this State. Otherwise it is to say that solvent. The indebtedness it has incurred in the the relator has invested a sum in this State by transaction from which the purchase of the propmerely promising to do so at some future day. Iferty is the result is no part of the sum it has inafter the purchase the wheat should appreciate, the vested in such purchase, and no assessment can be whole of such appreciation would of course go made which includes the amount of that indebtedtoward swelling the amount invested by the relator But the stock which a corporation issues in in this state, and the contrary would be the case if payment for property is not a deb: incurred by it. it should depreciate; the indebtedness being a The scrip for the stock is merely a certificate to the fixed quantity in both cases, it would not be altered holder to certify as to his interest in the property or affected by either event.

of the corporation, which interest is his share of The same thing would happen in case the relator the property that remains to it after the payment of purchased the wheat and paid nothing for it, but all its debts. gave its potes even without a mortgage for the Construing the statute as we do, it follows that whole amount. In such case the relator could not the assessment of 1894 cannot stand. Upon a be said to have invested any sum in its business, as- hearing of the case by the assessors it will be most suming, of course, that the wheat was worth no appropriate to endeavor to learn what kind of more than its purchase price. Instead of paying, it property was obtained in exchange for the stock, had simply promised to pay for it. The vendor in bonds and notes of the company amounting to ten such case would be assessed on the notes he took millions of dollars; where it is situated, how much for the price of the wheat instead of for the wheat it is in fact worth or what has become of it and itself and the relator would not be assessed at all. how it has to the extent claimed disappeared or This would be right, because no more property had shrunk in value. It is a case which indeed calls been created by the sale than existed before its con- for rigid examination and investigation to learn, if summation, and there would be an assessment levied | possible, how & corporatiou seemingly by its prefor the full amount that had been levied before or pared statements insolvent, can go on and pay which would have been levied if no sale had been interest on its mortgage debt, dividends on its made. The relator would not have invested any stock and keep clear of all hostile steps from its sum in its business until it paid something on its other creditors. notes or until the property purchased had apprecia- Our conclusion is that the orders of the General ted beyond the purchase price thereof. A gift of and Special Terms in relation to the assessment of the property would be different. In that case while 1893 must be affirmed, with costs, and those in rethe relator would not have actually taken money or gard to the assessment of 1894 must be reversed, brought it into the State for investment and inves- and the defendants directed to make a new assessted it in the property, yet it would have received ment in conformity to the facts and to the views the property as absolute owner with no outstanding set forth in this opinion. liabilities to pay for it, and being in such case the All concur. owner of the property, it would answer the description of a sum invested in its business and thus be liable to assessment under the act.

INTEMPERANCE OF SPEECH BEFORE This treatment of the question is not in fact to

JURIES. be regarded in the light of a strict deduction of debts from assets; it is construing the meaning The case of Holden v. Pennsylvania R. R. Co. in of the statute determining what in reality is the the Supreme Court of Pennsylvania (32 Atl. Rep., sum invested by a non-resident individual or cor- 103) once more calls attention to the use of violent poration under these circumstances, in the business and irrelevant language in summing up a case, as a in which he or it is engaged in this State. It is not ground for reversal of a judgment. The action was adjusting the equities as spoken of in the Thurber- for damages for personal injuries sustained through Whyland case, which we then held should be done at a railroad crossing accident. Plaintiff's counsel in the place where the corporation was a resident. It is addressing the jury employed such expressions as a different thing from ascertaining the general and “corruption,' death trap put there for the purgross assets of a non-resident to be found within pose of taking lives," "a fellow (one of defendant's the State, and from that sum deducting all its witnesses) bumming around town," "a ghoul with debts whenever and upon whatever cause incurred. a human face, ”? “terrorizing witnesses who swear The non-resident corporation investing a sum of against them,” “ lying with the hope of being paid," money in this State is to be assessed for the full

“perjured, the tools of a company," "scoundrels." sum it invests here, although it may owe debts The Supreme Court assigns, as one of the errors for

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