IN REFERENCE TO THE DEATH OF
LATE AN ASSOCIATE JUDGE OF THE COURT
WHO DIED AUGUST 18, 1895.
IN COURT OF APPEALS,
ALBANY, N. Y., Nov. 1st, 1895.
The death of Theodore Miller, late one of the associate judges of this court, reminds us once more of the inevitable. end which awaits us all, and imposes the duty of manifesting that respect for his memory which his long service with us deserves.
He died on the 18th day of August last, during our summer recess, and to most of us unexpectedly and without warning, and we are left to that remembrance of him which naturally and surely flows from his constant love for his brethren and his patient and faithful discharge of official duty.
He was elected to a seat in this court November 7th, 1874, and began his service with us at the beginning of the next
He came to his new work with a valuable experience behind him, for he had been a district attorney of his county when the anti-rent troubles tested the nerve and courage of the officers of the law; then for many years a justice of the Supreme Court, and for some time presiding judge of the General Term of the third department. He had filled those positions with an ability and industry and learning which easily led to his election to the court of last resort.
Upon our bench he developed the same vigorous and useful qualities. His chief characteristic, and, indeed, the one to which his success in life was largely due, was an untiring industry.
Few men possessed in greater degree the capacity for patient and laborious study, for deliberate and exhaustive investigation.
His opinions exhibited a familiarity with all that had been decided bearing upon the case before him and a capacity for applying it logically and with discrimination to the problem. awaiting solution. As a consequence, he was firm and courageous in his convictions, adhering to them with some persistence, defending them warmly, and yet open to all just argument and ready to yield when satisfied that duty required it.
Without seeking to recall the important cases in which he framed the judgment of the court and reasoned out its conclusions, it is due to him to say that his brethren, as they look back upon his opinions in the progress of their own duty, have gained an added respect for the sound judgment and careful study which characterized his judicial work.
Near the close of his official career his health somewhat failed and his sight grew dim, but he surmounted all difficulties with his characteristic courage and patience, and with such success that those who read his opinions are little likely to suspect how much of energy and unflinching will went to their preparation.
He retired from the bench at the close of 1886 under the constitutional provision which somewhat abridged his term, but in his home at Hudson, surrounded by his family and many friends, he still followed the action of the court, retained his interest in its labors, and added to the rest and quiet of his retirement a constant thought of the burdens no longer his. The end came peacefully at last and he went to his reward.
With respect for his successful labors, for the unbroken friendship of so many years, for his long and able and honorable judicial career, we order this tribute to his memory to be entered upon the records of the court, and that a copy be sent to his surviving family.
See LANDLORD AND TENANT, 5.
RAILROADS, 14, 15.
See CORPORATIONS, 6, 7.
Ensign v. Jarvis (Mem.). 687.
ACTION (BY STOCKHOLDERS).
ACTION (FOR DECEIT).
See CAUSE OF ACTION, 2.
ANNEXATION (OF POLITICAL
TERRITORY).
See CONSTITUTIONAL LAW, 1.
1. Capital Cases. While the Court
of Appeals has the power in a
capital case to review the facts
and to grant a new trial when
satisfied that the accused has not
had a fair trial, or when injus-
tice has been done, it must ob-
serve the rules and principles
which apply to all tribunals exer-
cising appellate jurisdiction. Peo-
ple v. Kerrigan.
210
2. Capital Cases Province of Jury.
It is the province of the jury to
determine questions of fact, de-
pending upon evidence in any
degree conflicting, and to declare
by their verdict what the truth
is, and when once determined, in
a capital case, upon evidence
which is sufficient, even though
capable of diverse or opposing
inferences, the Court of Appeals
has no more right than the trial
court to substitute its own judg-
ment in the place of that of the
jury, or to usurp its legitimate
functions.
Id.
estimate the loss and damage'
sustained by landowners in the
twenty-third and twenty-fourth
wards of the city of New York
through changes of grades in
streets, does not deprive the courts
of the power to review, by cer-
tiorari, the proceedings of such
commissioners in making an
award of damages, as to whether
they made their estimate upon legal
and authorized evidence, and in-
cluded only authorized elements
of damage, and adopted a proper
rule or basis in estimating the
damage. In re Fitch.
334
5. Certiorari. A writ of certiorari
to review an award of such com-
missioners properly issues under
section 2120, subdivision 2, of
the Code of Civil Procedure. Id.
6. Condemnation Proceedings-Rapid
Transit Act. An order of the
General Term of the Supreme
Court, affirming an order of the
Special Term, confirming the re-
port of commissioners appointed
to appraise lands under the pro-
visions of the Rapid Transit Act
(Laws of 1875, chap. 606), is not
appealable when there is presented
only an error of law or fact, and
no question as to the jurisdiction
of the commissioners is raised. In
re Brooklyn El. R. R. Co. v. Flynn.
344
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9. Mandamus. The Court of Ap-
peals will not review, upon a
proceeding for a mandamus to
direct the comptroller of the city
of New York to pay an award
made by commissioners under
chapter 537, Laws of 1893, and
chapter 567, Laws of 1894, the
alleged improper inclusion, by the
commissioners, of unauthorized
items of damage in their awards.
People ex rel. v. Fitch.
355
10. Harmless Error. The rule that
an error committed upon a trial
may be overlooked when the party
complaining was not prejudiced
thereby, is only applicable where
the error could by no possibility
have produced injury. People v.
11. Remedy at Law-Objection Raised
on Appeal. The defense of an
adequate remedy at law, under
the statute, to remove obstruc-
tions from a public highway,
when not interposed by answer
or raised at the trial, cannot be
made available by an objection
raised for the first time after
judgment, in an action in equity
brought by a private person to
compel the removal of obstruc-
tions and for incidental damages,
and is not a good ground for re-
versing the judgment. Wakeman
v. Wilbur,
7. Error of Law. On appeal to the
Court of Appeals from such an
order of affirmance, the petitioner
sought a reversal, on the ground
that the commissioners had treated
the property in question, which
consisted of one tract on which
there were three separate build-
ings, not as a whole, but as con-
sisting of three distinct parcels —
the claim being that the depreci- APPOINTMENT (POWER OF).
ation of one piece should have
been set off against the advan-
tage to the others. Held, that this
presented an error of law simply,
and, hence, that the appeal could
not be entertained.
'd.
8. Return on Appeal Motion for
New Trial. The pendency of an
appeal in the Court of Appeals is
no bar to a motion in the court
below for a new trial; hence, an
order that the return be transmit-
See LANDLORD AND TENANT, 1.
Covenant to Submit Differences. A
general covenant to submit any
difference that may arise in the
performance of a contract or un-
der an executory agreement, is a
nullity. Sanford v. C. T. M. A.
Association.
326
See CONSTITUTIONAL LAW, 6.
ASSESSMENT LIFE INSUR-
ANCE.
Claims against United States — U. S.
Rer. Stat. 3477. In view of the
decisions of the Supreme Court of
the United States on the subject,
the just construction of the pro-
vision of section 3477 of the Re-
vised Statutes of the United States,
which declares "absolutely null
and void" all transfers and assign-
ments of any claim against the
United States made before the al-
lowance of the claim, is that such
a transfer or assignment made in
the legitimate and usual course
of business, in good faith, to se-
cure an honest debt, while it may
be disregarded by the government,
is good as between the parties so
far as to enable the transferee, af-
ter the government has paid over
the money to the claimant, to
enforce, as against him or those
who take with notice, the interest
or lien given by the assignment.
York v. Conde.
486
ASSIGNMENT (FOR BENEFIT
OF CREDITORS).
1. Purchase of Real Estate from As-
signee. A general assignee for the
benefit of creditors is competent
to deal with the assets of the es-
tate, under an assignment fraudu-
lent and void upon its face; and
a transfer of real estate, made by
him at a public sale to a pur-
chaser for a valuable considera-
tion, will be upheld unless it shall
appear that such purchaser had
previous notice of the fraud of the
assignor. Wilson v. Marion. 589|
2. Purchaser for a Valuable Consider-
ation Without Notice. One who
purchases real estate from an as-
signee for the benefit of creditors,
under an assignment fraudulent
and void upon its face, is "a pur-
chaser for a valuable considera-
tion" within the meaning of 2 Re-
vised Statutes, 137, section 5,
when it appears that at the time
of the purchase and of the pay-
ment of the purchase money by
him, he had no actual knowledge
of any fact relating to any fraud
in the assignment, or of any fraud-
ulent intent on the part of the
assignor; that he did not obtain
actual knowledge of any such fact
or intent until after he had re-
ceived the deed from the assignee;
that he paid a fair price for the
property, and that he had not
read or examined the assignment.
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