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tal of the relator invested in business in the , and the proceedings remitted to the Special state, both parties appeal. Reversed.

Term to bear and determine the amount at John J. Delany, Corp. Counsel (George &

which the relator should be assessed, with

costs in this court to the appellants Wells Coleman and Curtis A. Peters, of counsel),

and others, commissioners. . for appellants. Frederic R. Coudert and Charles A. Conlon, for respondent

CULLEN, C. J., and GRAY, O'BRIEN,

| BARTLETT, HAIGHT, VANN, and WERPER CURIAM. The appellant, a corpo- | NER, JJ., concur. . ration organized under the laws of the republic of France, was assessed on personal Orders reversed, etc. property for the sum of $50,000. A certiorari having been issued to review the assessment, the Special Term reduced this amount to

(183 N. Y. 267) $800, the value of the furniture in an office

TINDLE et al.: V. BIRKETT. in the city of New York where the relator

(Court of Appeals of New York. Dec. 5, 1905.) had imported goods on sale. The action of BANKRUPTCY - DISCHARGE -DEBTS FRAUDUthe Special Term proceeded on the theory I LENTLY CONTRACTED. _ that the relator was not doing business with. Under Bankr. Act July 1, 1898, c. 541, in this state and had no capital invested

$ 17, 30 Stat. 550 [U, S. Comp. St. 1901, p.

3428], a discharge in bankruptcy is a bar to herein, which under the provisions of the

an action against the bankrupt for alleged falso tax law render a nonresident llable to assess representations made by the firm of which the ment on personal property. In support of

bankrupt is the survivor to two mercantilo this ruling the learned counsel for the relator

agencies as to the financial responsibility of

the firm, on the strength of which the mercanrelies on our recent decision in the case of

tile agencies issued reports by which plaintiffs People ex' rel. Tower Company, v. Wells, 182

claimed they were deceived into selling goods N. Y. 553, 75 N. E. 1132, affirmed on opinion

to defendant's firm; the debt being provable in

bankruptcy under section 63a of the act (30 below reported in 98 App. Div. 82, 90 N. Y.

Stat. 562 (U. S. Comp. St. 1901, p. 3447]), but Supp. 313. We think that the present case not having been reduced to judgment before does not fall within the Tower Case, but

his discharge in bankruptcy. within that or People ex rel. Durand-Ruel v. Wells, 180 N. Y. 506, 72 N. E. 1148, where

Appeal from Supreme Court, Appellate we upheld an assessment imposed on a for.

Division, Fourth Department. eign corporation. For a detail of the facts

Action by Thomas Tindle and others in that case, see opinion of the Special Term,

against Clarence T. Birkett. From a judg. 41 Misc. Rep. 144, 83 N. Y. Supp. 936. We

ment of the Appellate Division (87 N. Y. were of opinion in the Tower, Case that

Supp. 1150, 93 App. Div. 606), affirming a the operations of the corporation in the city

judgment for plaintiffs, defendant appeals. of New York were of such a character as to

Reversed. constitute the New York office merely a

John H. Gleason and Thomas Carmody, conduit for the shipment of goods in reality for appellant Frank Gibbons, for respond, sold from the relator's place of business in ents. Boston, or, at most, were so incidental to the business in Boston as not to be deemed a WERNER, J. This action was brought to business carried on in this state, within the recover damages which the plaintiffs claim meaning of the tax law. There is no substan. to have sustained in consequence of specified tial difference, however, between the method false and fraudulent representations, alleged and character of the business carried on in to have been made by the firm of which the the city of New York by the present relator defendant is the survivor to the representa. and that carried on by the Durand-Ruel Com tives of two mercantile agencies concerning pany. There is the same importation of for the assets and financial responsibility of that eign goods and their sale here, the same con firm, upon the strength of which these mere tinuity in the course of business in one case cantile agencies issued reports by which the as in the other, the same maintenance of an plaintiffs say they were deceived into selling office here at which the proceeds of the sales defendant's firm goods which they would not of the relator's goods are received and de otherwise have sold to it. The general ques. posited in bank, and the same bank account tion whether such representations, when propout of which are defrayed all the expenses erly proved, establish a cause of action for of the business in this country; the surplus fraud and deceit, was decided in favor of only being remitted to France at à convenient plaintiffs upon a former appeal to this court, period. It follows that the decisions below 171 N. Y. 520, 64 N. E. 210, 89 Am. St. Rep. were erroneous; but, as the Special Term was 822. Since then the case has been retried, of opinion that the relator was not liable to and a judgment for the plaintiffs, entered at taxation, except on its office furniture, no in- | the Trial Term, has been unanimously afquiry was had as to the value of the other firmed in the Appellate Division. One of the property held by the relator in New York. defenses interposed by the defendant to the

The orders of the Appellate Division and plaintiff's claim was that it had been barred Special Term should therefore be reversed, by a discharge in bankruptcy proceedings which had been instituted against defendant's , the bankrupt from all his provable debts, firm and prosecuted to a final adjudication, except (2) judgments in actions for frauds, resulting in a discharge from all debts save or obtaining money by false pretenses, or such as are by law excepted from the opera false representations, or for willful and mation' of a discharge in bankruptcy. The issue licious injuries to the property or person thus joined by this plea of the defendant of another, (4) or such other debts as were was met by the rejoinder of the plaintiffs to created by his fraud, embezzlement, misapthe effect that their cause of action was not propriation, or defalcation while acting as an one which could be discharged in bankruptcy officer, or in any fiduciary capacity. In conproceedings. As the decision upon this issue struing this language and determining its depends wholly upon the construction of the effect upon just such a situation as is prestatute familiarly known as the "Bankruptcy | sented in the case at bar, the federal SuAct of 1898," a question of law is presented preme Court said: “The fact that the second which survives the unanimous affirmance subdivision of section 17 excepted from the below and is reviewable upon this appeal. discharge 'all judgments in actions for frauds,

The section (17) of that act (Act July 1, or of obtaining property by false pretenses, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. or false representations,' indicates quite clear1901, p. 3428]) which covers the case herely that as to frauds in general it was the presented provides that "a discharge in bank intention of Congress only to except from ruptcy shall release a bankrupt from all his the discharge such as had been reduced to provable debts except such as * * (2) judgment, unless they fall within the fourth are judgments in actions for fraud, or ob subdivision, of those created by the fraud, taining property by false pretenses, or false embezzlement, misappropriation, or defalcarepresentations, or for willful or malicious tion of the bankrupt while acting as an injuries to the person or property of another; officer or in a fiduciary capacity. Unless * * * (4) were created by his fraud, em these words relate back to all the preceding bezzlement, misappropriation or defalcation words of the fourth subdivision, namely, the while acting as an officer or in any fiduciary frauds and embezzlements, as well as miscapacity." Since the debt upon which the appropriations or defalcations, it results claim of the plaintiffs is founded clearly falls that the exception in subdivision 2 of all within the category of provable debts enu judgments for fraud is meaningless, since merated in section 63a of the bankruptcy act such judgments would be based upon & (30 Stat, 562 [U. S. Comp. St. 1901, p. 3447]), fraud excepted from discharge by subdiviIt is quite as clearly covered by the discharge sion 4, whether judgment had been obtained in bankruptcy unless the fact that the debt or not. * * * The contention that 'fraud' originated in fraud excludes it from the should be segregated from the qualifying operation of the discharge. If it were an language 'while acting as an officer or in open question whether debts of this class any fiduciary capacity' is without merit. are included in or excluded from the debtor's Such interpretation would not only destroy discharge in bankruptcy, the very interesting the grammatical construction of the sentenbrief of counsel for the respondents would ces and contravene their plain meaning, furnish much material for discussion. But but it would likewise be inconsistent with the question has been finally and authorita paragraph 2 of the same section—that a tively decided by the Supreme Court of the creditor should have obtained judgment in United States in the case of Crawford v. an action for fraud in order to override Burke, 195 U. S. 176, 25 Sup. Ct. 9, 49 L. Ed. a discharge in bankruptcy. * * * If any 147, and that decision we must follow, re debt created by fraud, embezzlement, or gardless of any differences of opinion that misappropriation is to be excepted from might otherwise have obtained. That was an the application of the statute, then there action in trover, instituted in the state of is no necessity for subdivision 2, making Illinois, to recover damages for the fraud- j a judgment essential to prevent the granting ulent conversion of certain shares of stock. of the discharge under the statute. * * The defendants pleaded their discharge in Why an ordinary claim for fraud should bankruptcy. Notwithstanding this plea the be released by the discharge, while a judgplaintiffs recovered a judgment, which was ment for fraud is not released, is not altoaffirmed by the Supreme Court of Illinois, and gether clear, although this distinction may thereafter reversed by the Supreme Court of have been created to avoid the necessity the United States. The latter court held that of going into conflicting evidence upon the Burke's claim against Crawford and Valen- | subject, while in cases of judgments for tine, although sounding in tort, was one fraud the judgment itself would be evidence "founded upon an open account, or upon a of the fraudulent character of the claim. contract express or implied," and might have If a creditor has a claim against a debtor been proved under section 63, subd. “a," of for goods sold, which would ordinarily be the bankruptcy act, if Burke had chosen covered by a discharge in bankruptcy, he to waive the tort and take his place with the is strongly tempted to allege, and if possible other creditors of the estate.

to prove, that the goods were purchased By the mandate of section 17, above re under a misrepresentation of the assets of ferred to, a discharge in bankruptcy relieves the buyer, and thus to make out a claim

for fraud which would not be discharged , Subsequently an application was made ex in bankruptcy. It was probably this contin- | parte to a judge of the court and the appeal gency which induced Congress to enact that allowed. This motion is to set aside the an alleged fraud of this kind should be re order granting such allowance. duced to judgment before it could be set up | We are of opinion that section 191 of the in bar of a discharge." Much more might Code of Civil Procedure does not contemplate be quoted from the exhaustive opinion in nor authorize a repetition of such an appliCrawford v. Burke to show the reasons for cation, after its denial by one judge of the the conclusion reached, but we have extract court, to the other judges of the court in ed enough therefrom to clearly indicate that succession until the list of judges has been the precise question here involved was there exhausted. An appellant may, in the first decided.

instance, select any judge to whom to make It follows, therefore, that Frey v. Torrey, the application; but, having made his elec70 App. Div. 166, 75 N. Y. Supp. 40, affirmed tion, he is concluded by the decision made 175 N. Y. 501, 67 N. E. 1082, must be con- | by the judge to whom the application is sidered as overruled, the judgment herein made, at least in the absence of leave given of the courts below must be reversed, and by that judge to renew the motion before the complaint dismissed, with costs to the another judge. It may be that section 776 appellant in all courts.

of the Code, requiring that a subsequent

application in reference to the same matter CULLEN, C. J., and GRAY, O'BRIEN, be made only to the same judge who heard BARTLETT, HAIGHT, and VANN, JJ., con the original application, or to the court, is cur.

not applicable to this case; for until the

appeal is allowed the case is not in this Judgment reversed, etc.

court. Nevertheless, the provisions of the section, as well as those of section 529 of the

Code of Criminal Procedure, clearly indicate (183 N. Y. 272)

the legislative policy that the disposition of CARLISLE v. BARNES.

applications made to the discretion of one (Court of Appeals of New York. Dec. 12, 1905.) judge, and denied, should not thereafter be APPEAL-APPLICATION FOR LEAVE-RENEWAL. the subject of review by another judge. A Where the Chief Judge of the Appellate

contrary rule as to allowance of appeals Division denied an application for leave to appeal to the Court of Appeals, and a subse

would create confusion in practice and would quent application was made to another judge impose great and unnecessary labor on the of the same court and the appeal allowed, the members of the court. The rights of an order granting the same will be set aside, as Code Civ. Proc. & 191, authorizing an applica

unsuccessful appellant are sufficiently protion for leave to appeal, does not contemplate a tected by the double privilege given him, repetition of such an application after its first, of an application to the Appellate Di. denial by one judge to the other judges in suc

vision, and, second, a renewal of that applicession until the list has been exhausted.

cation to one of the judges of this court. Appeal from Supreme Court, Appellate

If the permission accorded by the judge who Division, First Department.

in the first instance passed on the application Action by John G. Carlisle against Reon

for leave to appeal in this case could auBarnes. Motion to set aside an order grant

thorize a renewal of the application before ed by a judge of the Court of Appeals allow

another judge (which may well be doubted), ing an appeal to this court from a judgment

the conditions on which that permission was of the Appellate Division (92 N. Y. Supp.

given were not complied with, and hence, 917, 102 App. Div. 573), affirming a judg

the order allowing the appeal was irregular ment in favor of plaintiff entered on a ver

and should be set aside. These views in dict and an order denying a new trial.

no way conflict with our decision in Hannon Granted.

V. Siegel-Cooper Co., 164 N. Y. 566, 58 N. See 90 N. Y. Supp. 810.

E. 1088. There we held that an allowance Austen G. Fox, William Edmond Curtis, of an appeal to this court, regularly granted and Henry M. Ward, for the motion. Charles by a judge thereof, was not reviewable by F. Brown and F. H. Van Vechten, opposed. the court. In the case before us the appeal

was not regularly allowed, and that is the PER CURIAM. In the first instance an ground of the present motion. application for leave to appeal to this court Motion to set aside order allowing appeal was made to the Chief Judge, who denied the granted. same. Thereafter the appellant applied to that judge for leave to renew the application CULLEN, C. J., and GRAY, BARTLETT, to another judge of the court. This was HAIGHT, VANN, and WERNER, JJ., congranted on condition that the appellant give cur. O'BRIEN, J., not voting. notice to the respondent of such application and that he be accorded a hearing thereon. | Motion granted.

(183 N. Y. 274)

election and poll clerks of election in the In re HEARST et al.

Second election district of the Sixth as(Court of Appeals of New York. Dec. 13, 1905.)

sembly district in tbe county of New York, 1. ELECTIONS - CANVASS - RECONVENING

to meet on the 1st day of December, 1905, BOARD-MANDAMUS.

at a time and place specified, and “then Election Law, Laws 1896, p. 893. c. 909, and there recount and canvass the votes does not authorize election officers to reconvene of the ballots cast in said election district on the day after the completion of a canvass

on the 7th day of November, 1905, in the made by them and recount the ballots, and they cannot be compelled so to do by mandamus.

manner provided by law, and make a true 2. SAME-RECOUNT.

return thereof as prescribed by law, and Laws 1896, p. 938, c. 909, $ 84, providing that in so doing they take, consider, and inthat in canvassing the vote on election day the clude in such canvass of votes the ballots, number of ballots shown by the ballot clerks'

if any, now in the envelopes of void and return must equal the sum of the votes appearing on the tally sheet, and if it does not the

protested ballots; that thereupon, they may ballots must be recounted, does not authorize count, as required by law, and make and the court after the election to compel by man

Alle the statements and tallies thereof as damus the opening of the votes and a recount,

required by law.” The county clerk was but was only a guide to the inspectors, and means that in case of discrepancy there must directed to then and there produce the enbe a recount before the declaration of the velopes of void and protested ballots and the result.

ballot clerks' return of ballots voted in said Bartlett and Vann, JJ., dissen ting.

district at said election, and that the board Appeal from Supreme Court, Appellate

of election of the city of New York then and Division, First Department.

there produce the ballot box of said district Application by William R. Hearst and

containing the ballots voted at said election, others for a writ of mandamus against

"together with the necessary blank stateDavid J. Woelper and others, as inspectors

ments of canvass and blank tally sheets of the election in the Second election district

for the use of said inspectors and poll of the Sixth assembly district in the county

clerks, and that thereupon, in the presence of New York, and others. From an order

and full view of the persons aforesaid and of the Appellate Division (96 N. Y. Supp. 341,

counsel for the parties thereto, said box be 110 App. Div. 346), modifying and affirming

opened, in order that said record may be an order of the Special Term granting a

had." This order was afterwards resettled writ to compel a recount of ballots, de

80 as to confine “the recount or canvass to fendants appeal. Reversed.

the votes cast for the offices of mayor,

comptroller, and president of the board of An application was made to a justice of

aldermen," and directed that all yotes in the Supreme Court by William R Hearst,

the ballot box be counted as valid, ' "and John Ford, and James G. Stokes, respective

that no question shall be raised as to the ly, candidates for the offices of mayor, comp

validity of the same, as to whether they troller, and president of the board of alder

were or should have been declared void, or men of the city of New York, upon the Mu

whether they were or should have been nicipal Ownership ticket, at the general

subject to protest." Upon appeal the Appelelection held November 7, 1905, for a peremp

late Division in the First Department modi. tory writ of mandamus directing a recount

fied the order so as to conform it to the of the ballots cast. The application was

order as first entered, except that the di. founded upon affidavits to the effect that

rection to the body of election officers, who the ballot clerks' return and the tally sheet

were respondents to the application, was of the Second election district of the Sixth

confined to a "recount." An appeal is now assembly district "do not, in the sum of

taken to this court by those respondents. the total vote cast for all candidates for the office, together with the number of bal

John J. Delany, Corp. Counsel (Arthur lots not wholly blank, on which no vote

C. Butts, Terence Farley, and Thomas F. was counted for the said offices, the total

Noonan, of counsel), for appellants. Frank number of wholly blank and the total num

S. Black, Austen G. Fox, Edward B. Whitber of void ballots and the votes cast, if any,

ney, William Allaire Shortt, Clarence J. for candidates for such offices whose names

Shearn, Henry De Forest Baldwin, and are not printed upon the ballot, correspond

Henry Yonge, for respondents. Alton B. with the number of votes cast at said elec

Parker, for intervener, Geo. B. McClellan. tion as shown by said ballot clerks' return." The statement is made that the "return" GRAY, J. (after stating the facts). The shows 379 votes to have been cast, while learned justices of the Appellate Division the "tally sheet” exhibits 382 votes for the appeared to have been swayed from their office of mayor, 380 for the office of comp contrary convictions by the decision of the troller, and 381 votes for the office of presi Second Appellate Division in Matter of Stiles, dent of the board of aldermen. On Novem- 69 App. Div. 589, 75 N. Y. Supp. 278, and by ber 28, 1905, an order was granted directing an observation in the prevailing opinion in the issuance of a writ commanding the re this court, later, in People ex rel. Brink v. spondents, as the board of inspectors of Way, 179 N. Y. 174, 71 N. E. 756. In Stiles

Case, errors were alleged in the tally sheet, where it is to be "preserved inviolate for and it was held that they were such as six months after such election," it was said to require the reconvening of all the elec- that the authorization of the court or the tion officials, under the provisions of sec- | judge to open the box did not extend so far tion 84 of the election law (Laws 1896, as to direct a recount-only “to open the box p. 938, c. 909). It was said in the opin- | and to permit its contents to be examined.” ion that "the law required a 'recount. It | It was then pointed out that the best evidoes not appear that this was done, and dence was thus preserved for use in proceedtherefore the court may and should order it | ings in the nature of quo warranto to try to be done. And the recount required by the title to office. "The language of section the mistake on the tally sheets implies that 111,” he says, "considered in connection with there shall be a count, whether merely a re section 114, makes it very clear that the reckoning, or, if necessary, a recanvass pre Legislature does not intend to permit the scribed by law; that the poll clerks as well court to order a recount of the votes in the as the inspectors are necessary officials, box. . . . The power is conferred to the

* and the court may order them to be end that it might be used in judicial proceedbrought in." It was further ordered that the ings pending or about to be commenced. election officials, upon reconvening, should

* The purpose of the Legislature in proceed in conformity "in every respect, so so framing the election law as to continue far as possible, to the procedure prescribed the policy of preventing the judiciary from and required by the statute to be done on sitting in review of the ministerial work of the day of election, in view of the provisions 'the board of canvassers may, without diffiof section 84 thereof," etc. In People ex rel. culty, be conjectured" (pages 180, 181, of 179 Brink v. Way, a writ of peremptory manda. | N. Y., page 758 of 71 N. E.), and that purpose mus had issued, upon the application of a | is explained in the necessity, in the public defeated candidate for the office of super- interests, that the canvass "should be promptvisor of the town of Ulster at the general ly carried on" and not delayed by a proelection of 1903, requiring the town board of cedure in court. Too broad an inference canvassers to reconvene and to recanvass the from the opinion in that case is checked by vote cast. The application was not based up the repudiation of any power in the court or on section 84 of the election law; nor did the judge to review the ministerial work of the facts alleged bring the case within it, the election officers, or to permit aught else as the opinion expressly declared. It was than an examination of the contents of the held, in effect, that no provision of the elec sealed ballot box in judicial proceedings. tion law conferred the authority upon the So that, with reference to these two cases, court to issue such a writ. In the course which have been regarded as controlling the of the discussion, the provisions of section judgment of the learned Appellate Division 84 were referred to as authorizing a recount below, I think we should hold that the Stiles of ballots, where a discrepancy exists be Case erroneously construed the election law tween the ballot clerks' return and the state and that the Brink Case did not sanction the ment of the tally sheet. That recount, how- conclusion of the court, whether in what was erer, as the opinion asserts, was the duty of actually decided or from the opinion read the board to make "on their own motion, as a whole. The Stewart Case, 155 N. Y. upon their attention being called to violations 515, 50 N. E. 51, has no application in what of the statute by some one or more members," was decided there. and it was further said that "in the event This case is important, not so much be of a failure to make such a recount the court cause of the question of which candidate may by mandamus compel it,” referring to is entitled to the particular office, as because "a mistake in the count," as shown by the of the principle to be declared in the construcdiscrepancy between the tally sheet and the tion of our law regulating elections to public ballot clerks' return. That was an unneces office. The Legislature has seen fit to prosary, and a too broad, statement in the opin vide a plan for voting at elections whereby ion. Possibly enough, when taken by it the elector casts a secret ballot. The design self, it would go very far towards indicating was to counteract the vicious influences exertthe belief in the existence of the power to re ed, whether by political leaders or by others, quire a recount; but it is not to be so taken. I to control the elector's will, and to protect It is apparent from the rest of the opinion | him in the free exercise of his right of sufthat the learned judge who delivered the' frage. It was the object of the election law, opinion had in mind what might be done be which was enacted in 1896, to permit a secret fore the canvass and inadvertently expressed ballot, to secure an honest count, and to prehimself upon the subject. When subsequent serve for a reasonable time the best evidence, ly (page 179 of 179 N. Y., page 758 of 71 in the event of judicial or of legislative pro N. E.), discussing the provisions of section ceedings, instituted after the election was 111 tbat, after the completion of the canvass' closed, for the purpose of criminally convictand the proclamation of the result, the bal. ing the unfaithful election officer, or of trying lots should be replaced in the box, to be the title of a person to the office to which securely locked and sealed and deposited he claims to have been elected, or of an with the board or officer furnishing the same, inquiry conducted by the federal or by the

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