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tal of the relator invested in business in the state, both parties appeal. Reversed.

John J. Delany, Corp. Counsel (George S. Coleman and Curtis A. Peters, of counsel), for appellants. Frederic R. Coudert and Charles A. Conlon, for respondent.

PER CURIAM. The appellant, a corporation organized under the laws of the republic of France, was assessed on personal property for the sum of $50,000. A certiorari having been issued to review the assessment, the Special Term reduced this amount to $800, the value of the furniture in an office in the city of New York where the relator had imported goods on sale. The action of the Special Term proceeded on the theory that the relator was not doing business within this state and had no capital invested herein, which under the provisions of the tax law render a nonresident liable to assessment on personal property. In support of this ruling the learned counsel for the relator relies on our recent decision in the case of People ex rel. Tower Company v. Wells, 182 N. Y. 553, 75 N. E. 1132, affirmed on opinion below reported in 98 App. Div. 82, 90 N. Y. Supp. 313. We think that the present case does not fall within the Tower Case, but within that of People ex rel. Durand-Ruel v. Wells, 180 N. Y. 506, 72 N. E. 1148, where we upheld an assessment imposed on a foreign corporation. For a detail of the facts in that case, see opinion of the Special Term, 41 Misc. Rep. 144, 83 N. Y. Supp. 936. We were of opinion in the Tower Case that the operations of the corporation in the city of New York were of such a character as to constitute the New York office merely a conduit for the shipment of goods in reality sold from the relator's place of business in Boston, or, at most, were so incidental to the business in Boston as not to be deemed a business carried on in this state, within the meaning of the tax law. There is no substantial difference, however, between the method and character of the business carried on in the city of New York by the present relator and that carried on by the Durand-Ruel Company. There is the same importation of foreign goods and their sale here, the same continuity in the course of business in one case as in the other, the same maintenance of an office here at which the proceeds of the sales of the relator's goods are received and deposited in bank, and the same bank account out of which are defrayed all the expenses of the business in this country; the surplus only being remitted to France at a convenient period. It follows that the decisions below were erroneous; but, as the Special Term was of opinion that the relator was not liable to taxation, except on its office furniture, no inquiry was had as to the value of the other property held by the relator in New York.

The orders of the Appellate Division and Special Term should therefore be reversed,

and the proceedings remitted to the Special Term to hear and determine the amount at which the relator should be assessed, with costs in this court to the appellants Wells and others, commissioners.

CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur.

Orders reversed, etc.

(183 N. Y. 267)

TINDLE et al., v. BIRKETT. (Court of Appeals of New York. Dec. 5, 1905.) BANKRUPTCY - DISCHARGE-DEBTS FRAUDULENTLY CONTRACTED.

Under Bankr. Act July 1, 1898, c. 541, 17, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], a discharge in bankruptcy is a bar to an action against the bankrupt for alleged false representations made by the firm of which the bankrupt is the survivor to two mercantile agencies as to the financial responsibility of the firm, on the strength of which the mercantile agencies issued reports by which plaintiffs claimed they were deceived into selling goods to defendant's firm; the debt being provable in bankruptcy under section 63a of the act (30 Stat. 562 [U. S. Comp. St. 1901, p. 3447]), but not having been reduced to judgment before his discharge in bankruptcy.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Thomas Tindle and others against Clarence T. Birkett. From a judgment of the Appellate Division (87 N. Y. Supp. 1150, 93 App. Div. 606), affirming a judgment for plaintiffs, defendant appeals.

Reversed.

John H. Gleason and Thomas Carmody, for appellant. Frank Gibbons, for respondents.

WERNER, J. This action was brought to recover damages which the plaintiffs claim to have sustained in consequence of specified false and fraudulent representations, alleged to have been made by the firm of which the defendant is the survivor to the representatives of two mercantile agencies concerning the assets and financial responsibility of that firm, upon the strength of which these mercantile agencies issued reports by which the plaintiffs say they were deceived into selling defendant's firm goods which they would not otherwise have sold to it. The general question whether such representations, when properly proved, establish a cause of action for fraud and deceit, was decided in favor of plaintiffs upon a former appeal to this court. 171 N. Y. 520, 64 N. E. 210, 89 Am. St. Rep. 822. Since then the case has been retried, and a judgment for the plaintiffs, entered at the Trial Term, has been unanimously affirmed in the Appellate Division. One of the defenses interposed by the defendant to the plaintiff's claim was that it had been barred by a discharge in bankruptcy proceedings

76 NORTHEASTERN REPORTER.

which had been instituted against defendant's firm and prosecuted to a final adjudication, resulting in a discharge from all debts save such as are by law excepted from the operation of a discharge in bankruptcy. The issue thus joined by this plea of the defendant was met by the rejoinder of the plaintiffs to the effect that their cause of action was not one which could be discharged in bankruptcy proceedings. As the decision upon this issue depends wholly upon the construction of the statute familiarly known as the "Bankruptcy Act of 1898," a question of law is presented which survives the unanimous affirmance below and is reviewable upon this appeal.

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The section (17) of that act (Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]) which covers the case here presented provides that "a discharge in bankruptcy shall release a bankrupt from all his provable debts except such as are judgments in actions for fraud, or ob(2) taining property by false pretenses, or false representations, or for willful or malicious injuries to the person or property of another; (4) were created by his fraud, embezzlement, misappropriation or defalcation while acting as an officer or in any fiduciary capacity." Since the debt upon which the claim of the plaintiffs is founded clearly falls within the category of provable debts enumerated in section 63a of the bankruptcy act (30 Stat. 562 [U. S. Comp. St. 1901, p. 3447]), It is quite as clearly covered by the discharge in bankruptcy unless the fact that the debt originated in fraud excludes it from the operation of the discharge. If it were an open question whether debts of this class are included in or excluded from the debtor's discharge in bankruptcy, the very interesting brief of counsel for the respondents would furnish much material for discussion. But the question has been finally and authoritatively decided by the Supreme Court of the United States in the case of Crawford v. Burke, 195 U. S. 176, 25 Sup. Ct. 9, 49 L. Ed. 147, and that decision we must follow, regardless of any differences of opinion that might otherwise have obtained. That was an action in trover, instituted in the state of Illinois, to recover damages for the fraudulent conversion of certain shares of stock. The defendants pleaded their discharge in bankruptcy. Notwithstanding this plea the plaintiffs recovered a judgment, which was affirmed by the Supreme Court of Illinois, and thereafter reversed by the Supreme Court of the United States.

The latter court held that

Burke's claim against Crawford and Valentine, although sounding in tort, was one "founded upon an open account, or upon a contract express or implied," and might have been proved under section 63, subd. "a," of the bankruptcy act, if Burke had chosen to waive the tort and take his place with the other creditors of the estate.

By the mandate of section 17, above referred to, a discharge in bankruptcy relieves

(N. Y.

the bankrupt from all his provable debts, except (2) judgments in actions for frauds, or obtaining money by false pretenses, or false representations, or for willful and malicious injuries to the property or person of another, (4) or such other debts as were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer, or in any fiduciary capacity. In construing this language and determining its effect upon just such a situation as is presented in the case at bar, the federal Supreme Court said: "The fact that the second subdivision of section 17 excepted from the discharge 'all judgments in actions for frauds, or of obtaining property by false pretenses, or false representations,' indicates quite clearly that as to frauds in general it was the intention of Congress only to except from the discharge such as had been reduced to judgment, unless they fall within the fourth subdivision, of those created by the fraud, embezzlement, misappropriation, or defalcation of the bankrupt while acting as an officer or in a fiduciary capacity. Unless these words relate back to all the preceding words of the fourth subdivision, namely, the frauds and embezzlements, as well as misappropriations or defalcations, it results that the exception in subdivision 2 of all judgments for fraud is meaningless, since such judgments would be based upon fraud excepted from discharge by subdivision 4, whether judgment had been obtained or not. The contention that 'fraud' should be segregated from the qualifying language 'while acting as an officer or in any fiduciary capacity' is without merit. the grammatical construction of the sentenSuch interpretation would not only destroy ces and contravene their plain meaning, but it would likewise be inconsistent with paragraph 2 of the same section-that a creditor should have obtained judgment in an action for fraud in order to override a discharge in bankruptcy. debt created by fraud, embezzlement, If any misappropriation is to be excepted from the application of the statute, then there is no necessity for subdivision 2, making a judgment essential to prevent the granting of the discharge under the statute.

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or

Why an ordinary claim for fraud should be released by the discharge, while a judgment for fraud is not released, is not altogether clear, although this distinction may have been created to avoid the necessity of going into conflicting evidence upon the subject, while in cases of judgments for fraud the judgment itself would be evidence of the fraudulent character of the claim. If a creditor has a claim against a debtor for goods sold, which would ordinarily be covered by a discharge in bankruptcy, he is strongly tempted to allege, and if possible to prove, that the goods were purchased under a misrepresentation of the assets of the buyer, and thus to make out a claim

parte to a judge of the court and the appeal allowed. This motion is to set aside the order granting such allowance.

for fraud which would not be discharged | Subsequently an application was made ex in bankruptcy. It was probably this contingency which induced Congress to enact that an alleged fraud of this kind should be reduced to judgment before it could be set up in bar of a discharge." Much more might be quoted from the exhaustive opinion in Crawford v. Burke to show the reasons for the conclusion reached, but we have extracted enough therefrom to clearly indicate that the precise question here involved was there decided.

It follows, therefore, that Frey v. Torrey, 70 App. Div. 166, 75 N. Y. Supp. 40, affirmed 175 N. Y. 501, 67 N. E. 1082, must be considered as overruled, the judgment herein of the courts below must be reversed, and the complaint dismissed, with costs to the appellant in all courts.

CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, and VANN, JJ., con

cur.

Judgment reversed, etc.

(183 N. Y. 272)

CARLISLE v. BARNES. (Court of Appeals of New York. Dec. 12, 1905.) APPEAL-APPLICATION FOR LEAVE-RENEWAL.

Where the Chief Judge of the Appellate Division denied an application for leave to appeal to the Court of Appeals, and a subsequent application was made to another judge of the same court and the appeal allowed, the order granting the same will be set aside, as Code Čiv. Proc. § 191, authorizing an application for leave to appeal, does not contemplate a repetition of such an application after its denial by one judge to the other judges in succession until the list has been exhausted.

Appeal from Supreme Court, Appellate Division, First Department.

Action by John G. Carlisle against Reon Barnes. Motion to set aside an order granted by a judge of the Court of Appeals allowing an appeal to this court from a judgment of the Appellate Division (92 N. Y. Supp. 917, 102 App. Div. 573), affirming a judgment in favor of plaintiff entered on a verdict and an order denying a new trial. Granted.

See 90 N. Y. Supp. 810.

Austen G. Fox, William Edmond Curtis, and Henry M. Ward, for the motion. Charles F. Brown and F. H. Van Vechten, opposed.

PER CURIAM. In the first instance an application for leave to appeal to this court was made to the Chief Judge, who denied the same. Thereafter the appellant applied to that judge for leave to renew the application to another judge of the court. This was granted on condition that the appellant give notice to the respondent of such application and that he be accorded a hearing thereon.

We are of opinion that section 191 of the Code of Civil Procedure does not contemplate nor authorize a repetition of such an application, after its denial by one judge of the court, to the other judges of the court in succession until the list of judges has been exhausted. An appellant may, in the first instance, select any judge to whom to make the application; but, having made his election, he is concluded by the decision made by the judge to whom the application is made, at least in the absence of leave given by that judge to renew the motion before another judge. It may be that section 776 of the Code, requiring that a subsequent application in reference to the same matter be made only to the same judge who heard the original application, or to the court, is not applicable to this case; for until the appeal is allowed the case is not in this court. Nevertheless, the provisions of the section, as well as those of section 529 of the Code of Criminal Procedure, clearly indicate the legislative policy that the disposition of applications made to the discretion of one judge, and denied, should not thereafter be the subject of review by another judge. A contrary rule as to allowance of appeals would create confusion in practice and would impose great and unnecessary labor on the members of the court. The rights of an unsuccessful appellant are sufficiently protected by the double privilege given him, first, of an application to the Appellate Division, and, second, a renewal of that application to one of the judges of this court. If the permission accorded by the judge who in the first instance passed on the application for leave to appeal in this case could authorize a renewal of the application before another judge (which may well be doubted), the conditions on which that permission was given were not complied with, and hence, the order allowing the appeal was irregular and should be set aside. These views in no way conflict with our decision in Hannon v. Siegel-Cooper Co., 164 N. Y. 566, 58 N. E. 1088. There we held that an allowance of an appeal to this court, regularly granted by a judge thereof, was not reviewable by the court. In the case before us the appeal was not regularly allowed, and that is the ground of the present motion.

Motion to set aside order allowing appeal granted.

CULLEN, C. J., and GRAY, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur. O'BRIEN, J., not voting.

Motion granted.

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Election Law, Laws 1896, p. 893, c. 909, does not authorize election officers to reconvene on the day after the completion of a canvass made by them and recount the ballots, and they cannot be compelled so to do by mandamus. 2. SAME RECOUNT.

Laws 1896, p. 938, c. 909, § 84, providing that in canvassing the vote on election day the number of ballots shown by the ballot clerks' return must equal the sum of the votes appearing on the tally sheet, and if it does not the ballots must be recounted, does not authorize the court after the election to compel by mandamus the opening of the votes and a recount, but was only a guide to the inspectors, and means that in case of discrepancy there must be a recount before the declaration of the result.

Bartlett and Vann, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Application by William R. Hearst and others for a writ of mandamus against David J. Woelper and others, as inspectors of the election in the Second election district of the Sixth assembly district in the county of New York, and others. From an order of the Appellate Division (96 N. Y. Supp. 341, 110 App. Div. 346), modifying and affirming an order of the Special Term granting a writ to compel a recount of ballots, defendants appeal. Reversed.

An application was made to a justice of the Supreme Court by William R Hearst, John Ford, and James G. Stokes, respectively, candidates for the offices of mayor, comptroller, and president of the board of aldermen of the city of New York, upon the Municipal Ownership ticket, at the general election held November 7, 1905, for a peremptory writ of mandamus directing a recount of the ballots cast. The application was founded upon affidavits to the effect that the ballot clerks' return and the tally sheet of the Second election district of the Sixth assembly district "do not, in the sum of the total vote cast for all candidates for the office, together with the number of ballots not wholly blank, on which no vote was counted for the said offices, the total number of wholly blank and the total number of void ballots and the votes cast, if any, for candidates for such offices whose names are not printed upon the ballot, correspond with the number of votes cast at said election as shown by said ballot clerks' return." The statement is made that the "return" shows 379 votes to have been cast, while the "tally sheet" exhibits 382 votes for the office of mayor, 380 for the office of comptroller, and 381 votes for the office of president of the board of aldermen. On November 28, 1905, an order was granted directing the issuance of a writ commanding the respondents, as the board of inspectors of

election and poll clerks of election in the Second election district of the Sixth assembly district in the county of New York, to meet on the 1st day of December, 1905, at a time and place specified, and "then and there recount and canvass the votes of the ballots cast in said election district on the 7th day of November, 1905, in the manner provided by law, and make a true return thereof as prescribed by law, and that in so doing they take, consider, and include in such canvass of votes the ballots, if any, now in the envelopes of void and protested ballots; that thereupon, they may count, as required by law, and make and file the statements and tallies thereof as required by law." The county clerk was directed to then and there produce the envelopes of void and protested ballots and the ballot clerks' return of ballots voted in said district at said election, and that the board of election of the city of New York then and there produce the ballot box of said district containing the ballots voted at said election, "together with the necessary blank statements of canvass and blank tally sheets for the use of said inspectors and poll clerks, and that thereupon, in the presence and full view of the persons aforesaid and counsel for the parties thereto, said box be opened, in order that said record may be

had." This order was afterwards resettled so as to confine "the recount or canvass to the votes cast for the offices of mayor, comptroller, and president of the board of aldermen," and directed that all votes in the ballot box be counted as valid, “and that no question shall be raised as to the validity of the same, as to whether they were or should have been declared void, or whether they were or should have been subject to protest." Upon appeal the Appellate Division in the First Department modi. fied the order so as to conform it to the order as first entered, except that the direction to the body of election officers, who were respondents to the application, was confined to a "recount." An appeal is now taken to this court by those respondents.

John J. Delany, Corp. Counsel (Arthur C. Butts, Terence Farley, and Thomas F. Noonan, of counsel), for appellants. Frank S. Black, Austen G. Fox, Edward B. Whitney, William Allaire Shortt, Clarence J. Shearn, Henry De Forest Baldwin, and Henry Yonge, for respondents. Alton B. Parker, for intervener, Geo. B. McClellan.

GRAY, J. (after stating the facts). The learned justices of the Appellate Division appeared to have been swayed from their contrary convictions by the decision of the Second Appellate Division in Matter of Stiles, 69 App. Div. 589, 75 N. Y. Supp. 278, and by an observation in the prevailing opinion in this court, later, in People ex rel. Brink v. Way, 179 N. Y. 174, 71 N. E. 756. In Stiles

Case, errors were alleged in the tally sheet, and it was held that they were such as to require the reconvening of all the election officials, under the provisions of section 84 of the election law (Laws 1896, p. 938, c. 909). It was said in the opinion that "the law required a 'recount.' It does not appear that this was done, and therefore the court may and should order it to be done. And the recount required by the mistake on the tally sheets implies that there shall be a count, whether merely a rereckoning, or, if necessary, a recanvass prescribed by law; that the poll clerks as well as the inspectors are necessary officials,

* and the court may order them to be brought in." It was further ordered that the election officials, upon reconvening, should proceed in conformity "in every respect, so far as possible, to the procedure prescribed and required by the statute to be done on the day of election, in view of the provisions of section 84 thereof," etc. In People ex rel. Brink v. Way, a writ of peremptory mandamus had issued, upon the application of a defeated candidate, for the office of supervisor of the town of Ulster at the general election of 1903, requiring the town board of canvassers to reconvene and to recanvass the vote cast. The application was not based upon section 84 of the election law; nor did the facts alleged bring the case within it, as the opinion expressly declared. It was held, in effect, that no provision of the election law conferred the authority upon the court to issue such a writ. In the course of the discussion, the provisions of section 84 were referred to as authorizing a recount of ballots, where a discrepancy exists between the ballot clerks' return and the statement of the tally sheet. That recount, however, as the opinion asserts, was the duty of the board to make "on their own motion, upon their attention being called to violations of the statute by some one or more members," and it was further said that "in the event of a failure to make such a recount the court may by mandamus compel it," referring to "a mistake in the count," as shown by the discrepancy between the tally sheet and the ballot clerks' return. That was an unnecessary, and a too broad, statement in the opinion. Possibly enough, when taken by itself, it would go very far towards indicating the belief in the existence of the power to require a recount; but it is not to be so taken. It is apparent from the rest of the opinion that the learned judge who delivered the opinion had in mind what might be done before the canvass and inadvertently expressed himself upon the subject. When subsequently (page 179 of 179 N. Y., page 758 of 71 N. E.), discussing the provisions of section 111 that, after the completion of the canvass and the proclamation of the result, the ballots should be replaced in the box, to be securely locked and sealed and deposited with the board or officer furnishing the same,

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where it is to be "preserved inviolate for six months after such election," it was said that the authorization of the court or the judge to open the box did not extend so far as to direct a recount-only "to open the box and to permit its contents to be examined." It was then pointed out that the best evidence was thus preserved for use in proceedings in the nature of quo warranto to try the title to office. "The language of section 111," he says, "considered in connection with section 114, makes it very clear that the Legislature does not intend to permit the court to order a recount of the votes in the box. * * The power is conferred to the end that it might be used in judicial proceedings pending or about to be commenced. The purpose of the Legislature in so framing the election law as to continue the policy of preventing the judiciary from sitting in review of the ministerial work of the board of canvassers may, without difficulty, be conjectured" (pages 180, 181, of 179 N. Y., page 758 of 71 N. E.), and that purpose is explained in the necessity, in the public interests, that the canvass "should be promptly carried on" and not delayed by a procedure in court. Too broad an inference from the opinion in that case is checked by the repudiation of any power in the court or the judge to review the ministerial work of the election officers, or to permit aught else than an examination of the contents of the sealed ballot box in judicial proceedings. So that, with reference to these two cases, which have been regarded as controlling the judgment of the learned Appellate Division below, I think we should hold that the Stiles Case erroneously construed the election law and that the Brink Case did not sanction the conclusion of the court, whether in what was actually decided or from the opinion read as a whole. The Stewart Case, 155 N. Y. 545, 50 N. E. 51, has no application in what was decided there.

This case is important, not so much because of the question of which candidate is entitled to the particular office, as because of the principle to be declared in the construction of our law regulating elections to public office. The Legislature has seen fit to provide a plan for voting at elections whereby the elector casts a secret ballot. The design was to counteract the vicious influences exerted, whether by political leaders or by others, to control the elector's will, and to protect him in the free exercise of his right of suffrage. It was the object of the election law, which was enacted in 1896, to permit a secret ballot, to secure an honest count, and to preserve for a reasonable time the best evidence, in the event of judicial or of legislative proceedings, instituted after the election was closed, for the purpose of criminally convicting the unfaithful election officer, or of trying the title of a person to the office to which he claims to have been elected, or of an inquiry conducted by the federal or by the

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