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But it was held that on the second trial an erroneous rule as to the burden of proof had been applied, and that as the mortgage was, at the election of the lunatic's personal representatives, voidable only, the latter could have, in the first instance, rested upon proof of the lunacy, and that thereupon it would have become incumbent on the mortgagee or his assigns to show the facts in equity necessary to sustain the judgment. "The defendant clearly had a right to prove notice of the insanity, but we did not hold that he was bound to do so. If his testimony sufficiently established Mrs. Merritt's insanity within the definition formulated in Aldrich v. Bailey, 132 N. Y. 85, 30 N. E. 264, he was, in our judgment, then and now entitled to rest; and, if his testimony on that head was not balanced by testimony subsequently adduced by the plaintiffs, he was entitled to a finding to that effect. If, upon all the testimony adduced by both sides, the court had found itself unable to make such a finding, all other grounds of equity would have disappeared, and the plaintiffs would have been entitled to judgment." At page 73, 43 App. Div., and page 361, 59 N. Y. Supp.

On this, the third trial, the plaintiffs again rested after putting in evidence the power of attorney, the bond and mortgage, the assignment thereof to them, and proving the default. The defendant then sought to prove by various witnesses, lay and expert, Hannah B. Merritt's mental condition at the time of the execution of the bond and mortgage; and the plaintiffs then offered proof tending to rebut the defendant's evidence in this regard. No attempt was made by either side to show Post's knowledge or ignorance of Mrs. Meritt's alleged mental condition, and therefore, following the last opinion of the appellate division, the question to be determined from the evidence adduced on this trial is simply this: Has the defendant succeeded in establishing Mrs. Merritt's lunacy, within the rule of Aldrich v. Bailey, 132 N. Y. 85, 30 N. E. 264? If he has, then, as he was entitled to rest on the proof of lunacy, he is entitled to judgment dismissing the complaint. If, on the other hand, the plaintiff succeeded in balancing that testimony, or if, upon all the evidence, such a finding cannot be made, then there must be judgment for the plaintiffs. Before adverting to the testimony, it is essential that the rule in Aldrich v. Bailey be understood. It is founded on the case of Van Deusen v. Sweet, 51 N. Y. 378. In that case the court of appeals adopted the language of the court below, that if the defendant "was, at the time of the alleged execution of the instrument, totally and positively incompetent, which is expressed by the technical and significant phrase, 'non compos mentis," the instrument never had any existence as an instrument, and was legally inoperative and ineffectual to pass title to the premises. In Aldrich v. Bailey, construing the rule in Van Deusen v. Sweet, and applying it to the facts then before the court, it is said:

"Assuming, for the purposes of this case, that the rule is there correctly stated, and that a deed would be not merely voidable, but absolutely void, when executed by an insane person, yet under the rule in that case a deed is absolutely void only when it appears that the person executing it was at the time so deprived of his mental faculties as to be wholly, absolutely, and completely unable to understand or comprehend the nature of the transac

To establish Mrs. Merritt's lunacy, then, within the rule of Aldrich v. Bailey, followed by the appellate division, the defendant must show that on the 26th day of May, 1891, Hannah B. Merritt was so deprived of her mental faculties as to be wholly, absolutely, and completely unable to understand or comprehend the nature of the transaction consummated on her behalf by her attorney in fact. A mere partial deprivation or impairment of her mental faculties would be insufficient. The rule plainly recognizes that there may be deprivation of mental faculty without invalidating the transaction in respect to which the impaired mind is supposed to have acted. The important words of the rule are "wholly, absolutely, and completely." If the impairment was only partial, if the incapacity was not absolute, and less than complete, so that the nature of the transaction might be understood, even though all the details could not be grasped or appreciated, then the instrument would still have validity. There must be a total deprivation of sense, an entire, not a partial, loss of understanding. Jackson v. King, 4 Cow. 207; Riggs v. Society, 84 N. Y. 335. Bearing this rule in mind, I am not satisfied on all the evidence that there was either complete obliteration of mentality on the part of Mrs. Merritt, or that she was totally unable to understand the nature of the transaction in question. There is no doubt that Mrs. Merritt's mental and physical condition, after she suffered the stroke of apoplexy in the early part of the year 1890, was enfeebled, and that her mental faculties were materially impaired. The testimony of disinterested witnesses, especially that of the Misses Vidaud, of Mrs. Hunter, and of Miss Edgerton, has satisfactorily established that. It is unquestionably true that her reason, will, memory, and understanding were weakened to a serious degree. But, although her mind and her intelligence were at that time of a low order, I cannot conclude, on all the evidence before me, that there was that total deficiency of sense necessary to the defendant's success in the action. As our law does not distinguish between different degrees of intelligence, her mere imbecility of mind, even though great, would not avoid the mortgage. Osterhout v. Shoemaker, 3 Denio, 37, note.

The

Certain considerations must not be lost sight of. The defendant, in his brief, seeks to apply a test to the validity of the transaction which could not be sustained even in the case of a person in full possession of all faculties. Mrs. Merritt, just prior to her stroke of apoplexy in 1890, was of very advanced years, being at that time about 82 years of age. No question is made but that she was legally competent to enter into any contractual relation at that time. defendant's testimony is that before her affliction she had a mind bright and active for lady of her years; that "she was in the ordinary mental and physical condition of a lady of her age." In the absence of fraud or undue influence, it is clear that the transaction would have been upheld if had before January, 1890, although it must be evident that if such an understanding of the complicated conditions that eventuated in the mortgage in suit, as the defendant would exact from Mrs. Merritt, is the correct test of legal capacity, it is very questionable whether she could have met it then, or even

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in the days of fuller mental vigor. Were the test an actual comprehension of all the details of a transaction, like here under review, many a sane woman in the prime of life, simply because she was unfamiliar wih real-estate matters, would be able to avoid her solemn agreements. But the test is not an actual understanding or comprehension of the transaction and its details, but a capacity for understanding and comprehending the nature of the transaction. In this case the defendant loses sight of the limitation implied in the word "nature" in the statement of the rule in Aldrich v. Bailey. It does not require an appreciation in circumstantial detail of all the facts surrounding the mortgage. The question is, did Mrs. Merritt have sufficient mentality to have understood the general nature of the transaction? Was the condition of her mind such that she could have grasped that she was borrowing money to pay off a loan, and that her property would be resorted to in the event that she did not repay it? The evidence does not satisfy me that her mind was not. There was disinterested, credible testimony, as that of Miss Hudson and Mrs. Smith, not to mention relatives who contradicted relatives on the other side, to balance that of the defendant, and tending to show that the speech and actions of Mrs. Merritt immediately prior to May 26, 1891, were something more than automatic, reflex, or the mere survivals of organized habit.

Finally, the only testimony concerning Mrs. Merritt's acquaintance with the particular transaction here in suit is given by the witness Wemmell, Mrs. Merritt's managing clerk during the last 10 or 12 years of her life. It was he who collected the rents for her, and who communicated to her about a month before the execution of the mortgage the fact that Mr. Post would lend the money to pay off the mortgage then on her William street property. Wemmell's testimony is to the effect that she understood him, and that she expressed her acquiescence and assent. There is also in his account of that interview corroboration of the plaintiffs' version of her mental condition. Her responses to his statements, especially where she threatens to scold him for his long absence, and where she corrects his manner of address, indicate the possession of memory, understanding, and reason. On the whole case I do not think the proof would warrant my finding that on May 26, 1891, Mrs. Merritt was so deprived of her mental faculties as to be wholly, absolutely, and completely unable to comprehend the nature of the transaction executed in her behalf by her attorney in fact. There should be judgment for the plaintiffs.

Judgment for plaintiffs.

(31 Misc. Rep. 668.)

PEOPLE v. CONNOR.

(Oneida County Court. June, 1900.)

INDICTMENT-MOTION TO QUASH-GROUNDS.

Code Cr. Proc. § 313, as amended by Laws 1897, c. 427, provides that indictments must be set aside, on defendant's motion, "in either of the following cases, but in no other:" First, when not found, indorsed, and presented as elsewhere prescribed; and, second, when some unauthorized

person has been present at the session of the grand jury, or while the charge in the indictment was under consideration. Defendant was indicted in January, and again in March, for causing a break in a canal, and moved to set aside the second indictment because no order of court was obtained to present the matter to the grand jury a second time. Held, that the motion should be denied, since it was not authorized by the statute above cited, which, as amended, specified the only grounds, except constitutional ones, on which such motion could be made.

Action by the people of the state of New York against Charles O. Connor. Motion to set aside indictment. Denied.

T. S. Jones, for the motion.

T. Curtin, Dist. Atty., opposed.

DUNMORE, J. The defendant, with others, was indicted in January, 1900, and again in March, 1900, for violating section 479 of the Penal Code, in causing a break in the feeder or canal at Forestport, N. Y. When defendant was arraigned upon the second indictment in this court, his counsel moved to set the second indictment aside on the ground that no order or permission was obtained from the court by the district attorney to present the matter a second time to the grand jury, and for that reason the grand jury had no jurisdiction, and its action was irregular and void. The district attorney contends that section 313 of the Code of Criminal Procedure does not authorize this motion upon the ground stated. Defendant's counsel contends, however, that the motion is not made under section 313 of the Code of Criminal Procedure, but under section 42, art. 2, tit. 4, c. 2, pt. 4, of the Revised Statutes (original paging 726). Defendant's counsel contends that, in moving to quash or set aside an indictment, a defendant is not confined to the grounds specified in section 313 of the Code of Criminal Procedure. The defendant's contention seems to be sustained by the following cases: People v. Clements, 5 N. Y. Cr. R. 288; People v. Price (Sess.) 2 N. Y. Supp. 414; People v. Sellick, 4 N. Y. Cr. R. 329. In People v. Petrea, 92 N. Y. 128, the defendant's counsel moved to set aside the indictment by reason of defects in the proceedings in selecting or drawing the grand jury which found the indictment. The district attorney in that case raised the question that the ground upon which it was sought to set aside the indictment was not one of those specified in section 313 of the Code of Criminal Procedure, and therefore the motion was unauthorized under the present practice. The court, in deciding that case, said:

"If the defect in the constitution of the tribunal deprived it of the character of a grand jury, in a constitutional sense, there can be no doubt that the court would have been bound to take notice of it, although no statute authorized it, or even if the statute assumed to preclude the raising of the objection. But when the defect is not of that character, and the defendant may be held to answer the indictment without invading any constitutional right, then the question is one of procedure merely, and the right of the defendant to avail himself of the objection is subject to the regulation and control of the legislature. * The Code, by defining the causes for which the indictment may be ⚫ set aside, must, by the general rule of construction, be held to exclude the entertaining of the motion for other causes than those specified. The intention of the

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Code was to discourage technical defenses to indictments, not affecting the merits, as is apparent from the sections cited, as well as the provisions relating to amendments and the proceedings on the trial."

That case, which is the only case upon the question, so far as I can discover, which has been decided by the court of appeals, seems to hold that the Revised Statutes relied upon by defendant, so far as they bear upon the question involved here, are in conflict with section 313 of the Code of Criminal Procedure, and have been repealed by implication, and that that section specifies all the grounds upon which a defendant may now move to set aside an indictment, excepting only grounds by which his constitutional rights were invaded. All of those cases were decided prior to the amendment to said section 313 in 1897. It is evident that the legislature regarded the construction of the section as left in doubt by the conflicting decisions. Prior to the amendment the section read as follows:

"Sec. 313. Indictment, When Set Aside on Motion. The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases: (1) When it is not found, indorsed and presented as prescribed in sections two hundred and sixty-eight and two hundred and seventy-two; (2) when a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections two hundred and sixty-two, two hundred and sixty-three and two hundred and sixty-four."

By that amendment (Laws 1897, c. 427) the section was amended by adding to the phrase, "in either of the following cases," the words, "but in no other," thus leaving the sentence as amended to read as follows: "The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases, but in no other." It is evident that this amendment was intended to, and in fact does, restrict a defendant, in his motion to set aside or quash an indictment, to the grounds specified in section 313, above cited, excepting in cases where the defects complained of are such as deprive defendant of his constitutional rights. This view was sustained by Judge Van Wyck in People v. Willis, 23 Misc. Rep. 568, 52 N. Y. Supp. 808, which is the only case that has been decided since the amend ment of 1897 to which my attention has been called, or which I have been able to discover. The defect complained of here is not one by which defendant's constitutional rights were invaded (such, for instance, as compelling him to appear before the grand jury and give evidence against himself); nor is it one of those specified as a ground of a motion in section 313, referred to. The motion is therefore denied.

Motion denied.