8. Criminal law 1001-Failure to declare sentence that is suspended cannot avoid judgment.

Failure of court to declare a sentence that it suspends, and thus prognosticate the judgment it may, but need not, finally pronounce, cannot avoid judgment, in view of Code Cr. Proc. § 470-a.

Habeas corpus by the People of the State of New York, on the relation of Leclair Decker against W. Bertram Page, Sheriff of Steuben County. Prayer of petition denied, and prisoner remanded.

Thomas F. Rogers, of Corning, for relator.

Guy W. Cheney, of Corning, for respondent.

THOMPSON, J. The relator pleaded guilty to the crime of operating a motor vehicle while intoxicated; whereupon the court ordered him to pay a fine of $300, suspended the imposition of a prison sentence, and placed him on probation. Thereafter the probation was vacated, and the court sentenced him to confinement in a state prison for two years. Relator claims this judgment is void, on the ground that the first order of the court in the premises was a final judgment; the court being without authority to impose the payment of a fine, and at the same time suspend a prison sentence, thus sentencing in part and suspending sentence in part.

[1] There can, I think, be no doubt that at the common law power to suspend sentence after conviction was inherent in all courts possessing superior criminal jurisdiction and common-law powers. "The power to suspend sentence at common law is asserted by writers of acknowledged authority on criminal jurisprudence, by the uniform practice of the courts and numerous adjudged cases. The statute (Penal Law, § 2188 [as amended by Laws 1918, c. 457, § 1, and Laws 1920, c. 568]) must not be understood as conferring any new powers. The court may suspend sentence as before, but it can do nothing to preclude itself or its successor from passing the proper sentence whenever such a course appears to be proper." People ex rel. Forsyth v. Court of Sessions of Monroe County, 141 N. Y. 288, 36 N. E. 386, 23 L. R. A. 856.

[2] The power to suspend sentence as an incident to judicial procedure is a power to postpone the imposition of the sentence, and not to suspend execution after sentence has been pronounced, for it is only the executive power which can relieve from a sentence pronounced by the court, unless there is a specific statute allowing it.. People ex rel. Hirschberg v. Seeger, 179 App. Div. 793, 166 N. Y. S. 913 (appeal dismissed 223 N. Y. 659, 119 N. E. 1069); People v. Boehm, 176 App. Div. 401, 163 N. Y. S. 22, affirmed 226 N. Y. 705, 123 N. E. 881.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(211 N.Y.S.)

[3] The punishment prescribed in cases of this sort is fine and imprisonment; both, either, or neither. In its very nature the statute (Highway Law, § 290, subd. 3, as amended by Laws 1924, c. 360) makes these various forms of penalty divisible, so, therefore, the whole or any part thereof can be imposed. It follows as a consequence that the court is inherently vested with corresponding power to suspend sentence of the whole or any part of it. Thus we see that the court did not need the authority of the statute to make its order or judgment in this case, nor does the statute attempt to withhold or withdraw such power; and it could not, if it would. When the Constitution was adopted, the inherent power of courts of criminal jurisdiction to suspend sentence was understood to be an ordinary judicial function, and it has been exercised by the courts ever since. The Legislature cannot authorize the courts to abdicate their own powers and duties, or to tie their own hands in such a way that, after sentence has been suspended, they cannot, when deemed proper and in the interest of justice, inflict the proper punishment in the exercise of a sound discretion. People ex rel. Forsyth v. Court of Sessions of Monroe County, supra.

In passing, let us observe that section 470-a of the Code of Criminal Procedure provides that in cases of revocation of probation the court may modify its original order and impose any punishment it might have pronounced at the time of the conviction. It follows that no substantial right of relator was invaded or denied by the court's refraining from fixing the term of his imprisonment at the time it imposed the fine against him. At the most this would have been but tentative, and a vain thing in case the court should have thereafter desired to change it; and the law does not contemplate or require the doing of a useless or unnecessary thing. It plainly appears here that the design. of the court was to suspend the prison sentence upon relator's paying his fine and keeping the conditions of his parole. The case does not differ from the usual one found in other jurisdictions where the prayer for judgment is held upon payment of the costs. State v. Bennett, 20 N. C. 170.

[4] And the payment of a fine, imposed at the time a defendant is placed on probation, in whole or by installments, is expressly made a proper condition to be required of a person on probation in this state. Code Cr. Proc. § 11-a, subd. 4(j).

[5] But the rule of the court in the first instance was not a judgment. A suspended sentence is not a judgment. People v. Markham, 114 App. Div. 387, 99 N. Y. S. 1092; People v. Fabian, 126 App. Div. 89, 111 N. Y. S. 140; People v. Bork, 78 N. Y. 346, 350. A judgment must be final, complete, and entire, and must settle the rights of the parties. It is the end of the law; its last word. 33 C. J. 1196. The term "interlocutory judgment" is a misnomer; such a mandate is but an interlocutory order. Webb v. Buckelew, 82 N. Y. 555.

[6] If the court erred in prescribing an improper condition, this did not operate to make the suspension of sentence equivalent to a pardon. It was proper at any time to revoke such order, and to impose a proper sentence. So relator is detained solely by force of the final judgment herein. People ex rel. Pasco v. Trombly, 173 App. Div. 497, 160 N. Y. S. 67.

[7] Even the failure of the court to fix the period of probation, as required by the statute, does not render invalid a sentence, since, in the absence of other limitation, it would be assumed that the probationary period would not continue more than two years, the period fixed by law. Moreover, the omission "would be subject to correction in this respect." People ex rel. Valiant v. Patton, 221 N. Y. 409, 117 N. E. 614.

[8] For like reasons the failure of the court to declare the sentence that it suspends, and thus prognosticate the punishment it may, but need not, finally pronounce (Code of Criminal Procedure, § 470-a, supra), can in no case avoid a judgment. By its second sentence the court "expunged" the first sentence, if there was one. People ex rel. Friedman v. Hayes, 172 App. Div. 442, 158 N. Y. S. 949.

There was a conviction here, and a proper final judgment had to follow. The first order by its terms was not a final judgment; but the court, having power over its own orders and judgments, was authorized, and it was its duty, to amend its mandate, or to supersede it with a sufficient judgment. Having done so, it must be held that the relator is amenable thereto. Cropsey v. Tiernan, 172 App. Div. 435, 158 N. Y. S. 948; People ex rel. Pasco v. Trombley, supra.

The prayer of the petition is therefore denied, and the prisoner is remanded. Let a final order be entered.

(Supreme Court, Trial Term, Steuben County. August 14, 1925.)

1. Bankruptcy 145(2)-Trustee in bankruptcy held invested with right to prosecute actions against stockholders on their subscriptions.

Trustee in bankruptcy, having been authorized by federal court to institute actions against stockholders to recover amount unpaid on their subscriptions for shares of capital stock of bankrupt corporation, was invested with the right to prosecute them in the state Supreme Court.

2. Corporations 228-Double recovery not allowed for unpaid amounts on stockholder's subscription contract.

There cannot be a double recovery by judgment creditors and trustee in bankruptcy for amount unpaid on stockholder's subscriptions for shares of capital stock of a corporation.

3. Judgment 725 (5)-Judgment in creditor's action to enforce stockholder's statutory liability held res judicata of bankruptcy trustee's action on subscription contracts.

Judgment in action by judgment creditors of corporation, to enforce statutory liability of alleged stockholders pursuant to Stock Corporation Law 1923, § 70. or its predecessor, in which it was found that certain defendant never became a stockholder, held res judicata of suit by bankruptcy trustee to recover from such defendant amount unpaid on his stock subscription.

4. Bankruptcy 145 (2)-Bankruptcy trustee of corporation held not entitled to recover unpaid amount on subscription contract, where neither . trustee nor corporation could perform contract.

Bankruptcy trustee of corporation held not entitled to recover amounts unpaid on subscription contract, where corporation agreed to issue certificates of stock upon final payment, though stipulated payments would pay for a share each month, and neither trustee nor corporation could perform the contract.

5. Corporations 77-Corporation's agreement that no certificates were to be issued until final payment under stock subscription contract held entire and indivisible.

Corporation's agreement under stock subscription contract to issue certificates upon final payment of amount due, though stipulated payments would pay for a share each month, was entire and indivisible, though corporation might have chosen to issue certificates before full payment under Stock Corporation Law 1923, § 74.

6. Corporations 242-One may be liable on stock subscription, when no certificate has been issued to him.

One may be liable on a stock subscription when no certificate of ownership has been issued to him, if there were something more than the agreement and a partial payment thereon, and intention to become a shareholder was unmistakably manifested by exercising the rights of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

such relationship and participating in the management of the corporation.

7. Corporations 171-Corporate books held not available to establish defendant's relation as a stockholder.

In suit by bankruptcy trustee of corporation to recover unpaid amounts on stock subscription contract, corporate books claimed to have been kept pursuant to Stock Corporation Law 1923, § 10, held not available to establish defendant's relation as a stockholder by reason of their variance.

8. Corporations 171-Assumed that defendant who did nothing except sign subscription contract and pay two installments not intended to be bound if corporation incapable of performing.

Where stockholder purchasing stock on partial payments participated in no degree in management of corporation, and did nothing except to sign a subscription and pay two installments, it might be assumed that it was the mutual intention that he should not exercise any of the privileges of a shareholder until certificates were issued to him, nor be obligated to make further payments if before doing so it should become apparent that company was not in a position to perform.

Action by Harry L. Allen, as trustee in bankruptcy of the American Railway Brotherhood Association, Incorporated, a bankrupt, against D. M. Ryan. Complaint dismissed.

John Griffin, of Hornell, for plaintiff.

James O. Sebring, of Corning, for defendant.

STEPHENS, J. The corporation named in the title of the action was incorporated in March, 1916, and became a voluntary bankrupt in August of the following year; the plaintiff, Allen, was appointed trustee in bankruptcy, and he duly qualified for the execution of his

trust.

[1] This is one of several actions brought against individuals to recover the amount unpaid upon their respective subscriptions for shares of the capital stock of the said corporation. The trustee has been authorized by the federal court to institute the actions, and he is therefore invested with the right, unquestioned here, to prosecute them. Mills, as Trustee, v. Friedman, 111 Misc. Rep. 253, 181 N. Y. S. 285, affirmed 194 App. Div. 942, 184 N. Y. S. 937; Jeffery v. Selwyn, 220 N. Y. 77, 115 N. E. 275, 6 A. L. R. 1111.

The material portion of the contract which was executed by the defendant, and upon which the action is brought, is as follows:

"I hereby subscribe for 20 shares of the capital stock of the American Railway Brotherhood Association, Incorporated (par value $5 per share), to myself for the sum of $100. I agree to pay for this stock as follows: $5 on this date, or within 4 days, and the balance in monthly payments For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes