People v. Kolb.

performances therein, and assented to the said building being used for exhibiting therein; that the defendant Kolb has been, since November 1, 1860, and was, at the time such theatrical performances were so exhibited, and now is, the lessee from Bechtel of said building, and the manager and proprietor of the business of exhibiting theatrical performances therein; that the defendants, and each of them, have neglected to take ont any license for exhibiting theatrical performances in said building, and have each of them consented and allowed such theatrical performances to be exhibited without first taking out such license, in violation and disregard of the act, &c. Wherefore the defendants have become subjected to a penalty of five hundred dollars for such neglect and omission as aforesaid, and for which penalty judgment is demanded.

The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

The superior court, at general term, overruled the demurrer, which had been sustained at special term; and from judgment for plaintiffs, defendants appealed.

Waring & Sidell, attorneys for defendants, appellants.

Henry A. Cram, attorney for plaintiffs, respondents;-Cited Rodgers v. Rodgers, 11 Barb. 595; Warren v. Doolittle, 5 Cow. 678; Palmer v. Conly, 4 Den. 374; affirmed in 2 N. Y. (2 Comst.) 182; Eldridge v. Bell, 12 How. Pr. 547; People v. Mayor, &c. of N. Y., 28 Barb. 248; Woodbury v. Sackrider, 2 Abb. Pr. 402; N. Y. & N. H. R. R. Co. v. Schuyler, 17 N. Y. 604; Hess v. Buffalo & N. Y. R. R. Co., 29 Barb. 391; Code, §§ 172, 173.

BY THE COURT.-WRIGHT, J. [After stating the facts.]There is clearly no substance in the demurrer. The complaint shows a good cause of action against both defendants. This is so, even if there be any point (which there is not) in the position assumed at special term, that under the statute the manager of a theater, and the owner of the building in which theatrical representations are had, are guilty of different

People v. Kolb.

offenses and liable to separate penalties. The allegations that the defendant Bechtel was owner, and the defendant Kolb lessee, and that they assented to the giving of theatrical performances in the building; that Bechtel owned the building, and that Kolb was manager of the performances, and that they both assented and consented to the performances, are sufficient to make out one cause of action against both defendants. If it even conceded that the additional averments in the complaint that Kolb was lessee, or that Bechtel let to Kolb for the purpose of giving theatrical representations, tend to show that the defendants are liable to separate penalties, these averments are not to be regarded on this demurrer. It is enough that without them a cause of action is shown against both defendants, and the prayer for judgment determines the character of the action.

But it is unnecessary to reject any allegations of the complaint; as a whole, it shows a good cause of action against both defendants. It is not true that by a proper construction of the act upon which the action is founded, that the manager of the enumerated exhibitions, and the owner of the place of exhibition, are liable to separate penalties. The act contemplates only one offense, the opening of a theater, circus, &c., for theatrical or equestrian exhibitions, without a license therefor being first obtained; but two classes of offenders, viz., managers and owners, uniting to commit it. In such case it is well settled that the offense, being in its nature one and entire, the penalty is one, and several penalties cannot be imposed on the several offenders.

In any view that may be taken of the case the demurrer was properly overruled.

The judgment should be affirmed.

All the judges concurred.

Judgment affirmed, with costs and ten per cent. damages.

People v. Lansing.

PEOPLE v. LANSING.

March, 1868.

If, pending an action to reach real property, a third person, being judg ment creditor of one of the parties, with notice, sells the property on execution and becomes the purchaser, and his execution is returned unsatisfied, and the plaintiff in the pending action subsequently obtains a decree and sells the property again thereunder, and the proceeds are distributed, the judgment creditor cannot maintain an action, founded on his equity, to reach the proceeds of the second sale, until the satisfaction of his judgment has been vacated.*

The People of the State sued Henry R. Lansing and Mary R. Richmond, executrix, &c., of Dean Richmond, in the supreme court, in an action substantially for money received. The facts proved were as follows:

Upon the failure of the bank of Oliver Lee & Co., James M. Smith was appointed receiver of its property and effects, about September, 1857. Afterward, as such receiver, he commenced an action in the Buffalo superior court against Henry L. Lansing, president of the bank, to compel him to convey real estate belonging to it, which he had procured to be conveyed to himself, and which he claimed to hold to secure himself, Dean Richmond, and others, against liabilities which he and they had incurred as sureties for the bank; and in August, 1859, the receiver obtained judgment in that action, directing Lansing to make the conveyance to the receiver. This judgment was, upon appeal, reversed by the general term; but, on appeal to the court of appeals, the judgment of the general term was reversed, and that of the special term affirmed.

A notice of lis pendens in this action was filed in the office of the clerk of Erie county on April 8, 1858.

While appeal in the receiver's action was pending, and after the notice of pendency was filed, the People of the State, who had recovered judgment against Lansing and others, on January 14, 1860, for over twenty thousand dollars, issued

*Compare Mayor of N. Y. v. Erben, p. 250 of this vol.; Mathews v. Duryee, p. 220.

People v. Lansing.

execution thereon; and on this execution the sheriff sold the land which the superior court had adjudged should be conveyed to the receiver, and the people bid it off; and their execution was returned satisfied.

At the time the plaintiffs bid off the premises at the sheriff's sale, under the execution in the action which they had brought, they had actual notice of the pendency of the action brought by the receiver, and of the judgment which had been rendered thereon, and of the appeal then pending in the court of appeals.

Subsequently to the decision of the court of appeals in the receiver's action, the same land was sold by a referee on July 2, 1862, under direction of the superior court, for the sum of thirteen thousand one hundred and eighty-seven dollars, over and above the expenses of the sale. After the sale, and on September 18, 1862, the defendants in this action presented a petition to the superior court, asking for a distribution of the proceeds of the sale, and the court granted an order requiring the receiver, the State treasurer, and others, to show cause why the distribution should not be made. Upon proof of service of the order, the court, on September 26, 1862, directed the distribution, and Richmond received ten thousand four hundred and ninety-three dollars and nine cents, Lansing one thousand and forty-nine dollars and forty-eight cents, and the plaintiff's treasurer one thousand six hundred and forty-four dollars and forty-three cents. For the recovery of this money paid to Richmond and Lansing, the present action was brought.

J. H. Reynolds and the Attorney-General, for the People, appellants; Insisted that the proceeding for distribution was, in substance, ex parte; and the present plaintiffs ought to be permitted to go behind the order, and show that they were entitled to a larger share. The State was not bound by the decree in the receiver's suit, so far as it attempted to settle rights of the State in respect of claims for which Lansing and Richmond were sureties.

John Ganson, for defendants, respondents;-Insisted that a satisfied judgment must be deemed satisfied until satisfaction

People v. Lewis.

was vacated. In this case no court would vacate the satisfaction, for the State sold with notice, and bid, to take their chances. The State were not entitled to notice.

BY THE COURT.-CLERKE, J. [After stating the above facts.]-On these facts, the decision of the referee was correct.

The execution issued upon the judgment in favor of the plaintiffs against Lansing and others, was returned satisfied, and remains on record in full force. It cannot be vacated or impeached in any proceeding or action of this kind. No attempt has been made by the plaintiffs either to vacate the return to the execution which was returned satisfied, or to appeal from the superior court, or to set aside the proceedings therein as fraudulent or irregular; and they have received, without protest, the money awarded to them under these proceedings. The judgment should be affirmed, with costs.

All the judges present concurred.

Judgment affirmed, with costs.

PEOPLE v. LEWIS.

September, 1867.

Upon an indictment for homicide, although if there be, upon the evi dence, no doubt as to the intention of the prisoner to effect the death of the deceased, the crime cannot be mitigated from murder to manslaughter by anything the prisoner may have heard from a third per son; yet where the intent to effect the death remains to be proved, and the inquiry is whether such was his design, it is competent to prove that the prisoner acted from recent provocation likely to induce him to chastise the deceased.

Richard Lewis was convicted of murder, and obtained, on error in the supreme court, an order for a new trial. The People brought error to this court.

A. Anthony, for the plaintiffs in error.

H. A. Nelson, for the defendant.