but these facts constitute in law no excuse or justification for the killing. So long as there was time and opportunity for reason to assume its sway and the passions to cool the law holds the defendant responsible for his acts. It may be that the language and conduct of the deceased provoked the original quarrel in the saloon, but after that difficulty had terminated the defendant returned to renew it, and, instead of avoiding further trouble, as was his duty, deliberately sought out the deceased and shot him, as the jury found, from motives of revenge. It is not now within the province of the court to disturb the verdict of the jury on the ground that the deceased was the aggressor in the beginning. The courts, in the administration of criminal justice, are bound by settled legal rules. If their effect and operation should be mitigated in a particular case by reason of special facts or circumstances, that power rests with the executive department of the government and not with the judicial tribunals. There are some features of this case that deserve, and doubtless will receive, careful consideration in that department. (People v. Fish, 125 N. Y. 136.)

There are no other questions disclosed by the record that call for further discussion, or that would justify a new trial, and the judgment of conviction must, therefore, be affirmed. All concur.

Judgment affirmed.

DAVID MCCLURE, as Temporary Receiver of THE LIFE UNION,
Respondent, v. LOUIS P. LEVY, Appellant.

1. ASSESSMENT LIFE INSURANCE COMPANY PROMISSORY NOTESCONVERSION OF FUNDS BY OFFICER. On the trial of an action for embezzlement and conversion, brought by the receiver of an insolvent assessment life insurance company against its late president, the evidence was to the effect that the defendant, before he became president and in order to gain control of the company, obtained from his predecessor in office, who testified that the defendant paid therefor more than their face value and interest, certain notes which had been executed by the company to some of its directors to raise money for an ultra vires and illegal scheme for the transfer of membership of another company; that these notes were

on their face not negotiable paper, and were payable out of a fund to be derived from the proposed transfer of membership, which transfer never took place; and that the defendant took the notes with full knowledge of all the circumstances surrounding their issue. The evidence further showed that, shortly before the company went out of business and when it was insolvent, the defendant, by means of a check made by his direction and signed by him as president, obtained all of the company's funds on deposit in a certain bank, which amounted to less than the face value of the notes; and that soon after the check was made out and while it was still in the defendant's possession, the directors of the company passed a resolution which purported to authorize its officers to draw from the reserve fund to pay said notes. Held, that the evidence showed that the withdrawal of the company's funds by the defendant was unauthorized, and justified the direction of a verdict for the plaintiff.

2. RESERVE FUND. It was disputed, on the trial, whether the funds in bank, which were checked out by the defendant, were reserve funds or not; but it did appear that a portion of the moneys in bank were a part of the reserve fund. Held, that the question of the reserve fund was not necessarily controlling; that while there was an unauthorized interference with the reserve fund, payment of the check in question out of the general funds of the company was equally unauthorized under the circumstances. Reported below, 79 Hun, 235.

(Argued June 13, 1895; decided October 8, 1895.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 15, 1894, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court, and also affirmed an order denying defendant's motion for a new trial.

The facts, so far as material, are stated in the opinion.

Edward Browne for appellant. The complaint not only failed to allege, but the plaintiff wholly failed to establish, a cause of action either for moneys received by defendant in a fiduciary capacity and misappropriated by him or for moneys wrongfully withdrawn from said corporation and embezzled by him during the course of his employment as officer of such corporation. (Moffatt v. Fulton, 132 N. Y. 507; Hillis v. Bleckert, 25 N. Y. S. R. 553; Bartlett v. Sutorius, 25 N. Y. S. R. 629; Grosvenor v. Sickle, 13 N. Y. S. R. 566; Taylor

on Corp. 342, 630; P. Bank v. Sharp, 12 Miss. 75; Wilson v. Termman, 6 M. & G. 242; Ancona v. Marks, 7 H. & N. 686; M. Co. v. Schenck, 5 Wall. [U. S.] 772; Kelley v. N. & A. H. R. Co., 141 Mass. 496; Williams v. Thorpe, 8 Cow. 202; White v. 0. D. S. Co., 102 N. Y. 660.) The Life Union not only received cash for the notes, but actually experienced an increase in membership by reason of the agreement and issuance of the notes, and the case is barren of dispute as to this fact. (Kraft v. F. P. & P. Co., 87 N. Y. 629; Earl v. Peck, 64 N. Y. 596; Sawyer v. McLouth, 46 Barb. 350; Lobdell v. Lobdell, 36 N. Y. 327; Worth v. Case, 42 N. Y. 369; 5 Lawson's Rights & Rem. § 2246; 1 Add. on Cont. 31; Benj. on Cont. 23; Gravely v. Bernard, L. R. [18 Eq.] 518; M. N. Bank v. Globe, 101 Mass. 57.) The board of directors had power to make the agreement and issue the promissory notes. (McCullough v. Moss, 5 Den. 567; Moss v. Averill, 10 N. Y. 457; Mott v. Hicks, 1 Den. 513; Curtis v. Leavitt, 15 N. Y. 66; Barker v. M. Ins. Co., 3 Wend. 94; Jackson v. Brown, 5 Wend. 590; Moss v. Oakley, 2 Hill, 265; Atty.Gen. v. L. & F. Ins. Co., 9 Paige, 470; Safford v. Wyckoff, 4 Hill, 442; Barry v. M. Ex. Co., 1 Sandf. Ch. 280; Moss v. R. L. M. Co., 5 Hill, 139; Smith v. Low, 21 N. Y. 299.) If this court should find that the scheme was that of consolidation and contrary to law, still the notes in the hands of bona fide holders for value were good and bore the impress of value. (F. & M. Bank v. B. & D. Bank, 16 N. Y. 128; Wright v. P. L. Co., 101 Penn. St. 204; Ridgway v. F. Bank, 12 S. & R. [Penn.] 256; P. R. R. Co. v. Lewis, 33 Penn. St. 33.) The words that the notes were payable "from such portion of the income of the Life Union as may be properly applicable thereto ” were mere surplusage. (Palmer v. Largent, 5 Neb. 223; Hardley v. Wilkinson, 4 M. & S. 25; Benedict v. Cowden, 49 N. Y. 402.) Defendant had no notice of any defect in the notes which would destroy their validity. (Goodman v. Simonds, 20 How. [U. S.] 343; B. B. Bank v. Hoge, 35 N. Y. 69; Magee v.

Opinion of the Court, per BARTLETT, J.

[Vol. 147.

Badger, 34 N. Y. 247; Parker v. Connor, 93 N. Y. 128; Goodman v. Harvey, 4 Ald. & El. 870; Murray v. Lardner, 2 Wall. 110; Seybel v. N. C. Bank, 51 N. Y. 288; Epfler v. Funk, 8 Penn. St. 468; Stevenson v. O'Neall, 71 Ill. 314.)

Frederick Geller and Herbert B. Turner for respondent. The notes, for the payment of which the defendant took the money of the Life Union, were improperly issued and improperly paid out of the reserve fund. (Laws of 1892, chap. 690, § 205.) The complaint stated a sufficient cause of action to authorize the judgment. (Moffatt v. Fulton, 132 N. Y. 507.)

BARTLETT, J. This is an appeal from a judgment and order of the General Term, first department, affirming judgment on a directed verdict for plaintiff and affirming order denying motion for a new trial.

The plaintiff, as receiver of the Life Union, an insolvent insurance company conducted on the assessment plan, sued to recover of defendant the sum of $10,141.06 of the funds of the company alleged to have been embezzled and converted by him while its president.

At the close of the evidence each party asked for a directed verdict, so that the facts most favorable to the plaintiff must be taken as proved.

It appears that early in 1891 the affairs of the Life Union were in an unsatisfactory condition, the membership was falling off, and it was deemed essential that something should be done to enlarge and extend its business.

A special meeting of the directors was called for April 10, 1891, at which it was resolved, after reciting that an opportunity presented "of securing the Flour City Life Association of Rochester, N. Y., for the sum of $40,000," that such purchase should be made, and to effect it the Life Union should execute its notes for $35,000.00 at six per cent, in amounts not less than $1,000 each, payable on or before twenty-four months after date, in form as follows:

N. Y. Rep.] Opinion of the Court, per Bartlett, J.

"$1,000.00.

"NEW YORK, April 13th, 1891.

"On or before twenty-four months after date the Life Union promises to pay to the order of One Thousand Dollars, at its office in the city of New York, from such portion of the income of said the Life Union as may be properly applicable thereto, with interest. Value received."

Eleven of these notes were subscribed for by directors, the proceeds placed in hands of J. T. Baldwin, then the president of the Life Union, as trustee for the noteholders, who paid same to one Charles F. Underhill, president of the Flour City Life Association, who surrendered to Baldwin a power of attorney and proxies from the members of his board of directors, which transaction was supposed, or pretended would, by reason of resignations of officers and directors and the election of others, give full control of the Flour City Life Association to the Life Union, and transfer to the latter the membership, property and business of the former.

Soon after this attempted transfer, which was neither consolidation nor re-insurance, the insurance department instituted judicial proceedings against the Flour City Life Association, which resulted in its dissolution.

The effect of this transaction by the directors of the Life Union can be best described by quoting from a circular issued by the executive committee of the Life Union, dated February 27, 1892, and read in evidence. The circular states: "The $35,000 notes given by the Life Union were specially printed contract notes payable out of the expense funds derived from the transferred membership of the Flour City. No such transfer took place. Therefore, the consideration having failed, the notes are worthless. The directors have lost $11,000. The company has lost nothing."

It thus appears that there was a complete failure of consideration as to the notes in question, and that they were payable out of a fund to be derived from the transferred membership of the Flour City Life Association, which transfer never took place.