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and 140 New York State Reporter port, maintenance and apparel, and the entire expenses of maintaining the household at No. 737 Madison avenue, including rent, water rates, and all other charges incidental to the maintenance of said household. The order should also provide that the committee of the person at the end of each month shall furnish to the committee of the estate proper vouchers showing the disposition by him of the moneys so received, and, further, if it shall appear at the end of any given year that funds shall remain in the hands of the committee of the person in excess of the sum required for the maintenance of the committee's ward and her estate, that the committee of the person shall turn over such sums as remain so unexpended to the committee of the estate. The order to be entered hereon should also direct the payment out of the income of all unpaid referee's and stenographer's fees, if any, in the references now pending, as well as any costs or allowances to counsel, and also to the special guardian, whose appointment will thereupon cease.

Except as hereinbefore indicated, all orders of reference in all the above proceedings should be vacated and proceedings therein terminated by the entry of the order hereon. Settle order upon notice.

(56 Misc. Rep. 69.)

SCHROTER V. SCHROTER. (Supreme Court, Special Term, New York County. August 28, 1907.) 1. MARRIAGE-ANNULMENT—"PHYSICALLY INCAPABLE"-DEFINITION.

The words “physically incapable,” in Code Civ. Proc. & 1743, authorizing the annulment of a marriage on the ground that one of the parties was “physically incapable” of marriage, mean want of potentia copulandi, and not merely incapacity for procreation, and a husband cannot obtain a

divorce on the ground of the barrenness of the wife. 2. SAME-FRAUD-EVIDENCE.

In a suit to annul a marriage on the ground of fraud because of the wife concealing her inability to bear children, evidence held not to show

that she had knowledge of her barrenness essential to a finding of fraud. Action to annul a marriage by George. A. Schroter against Sofi G. Schroter. Judgment for defendant.

Alexander S. Bacon, for plaintiff.

James W. Osborne (Charles J. Nehbras and Neal D. Becker, of counsel), for defendant.

GIEGERICH, J. The plaintiff, the husband, seeks an annulment of the marriage on two grounds: (1) The physical incapacity of the defendant; and (2) her fraud in inducing the contract. The alleged physical incapacity is not established by the evidence. It is not claimed that sexual intercourse is impossible, but only that it is imperfect and not satisfactory to the plaintiff, owing to the shortness of the defendant's vagina. The great weight of testimony of the medical experts, however, is that the measurements of the defendant, although less than the average, still come within normal lengths. So far as that branch of the case is concerned, I have no hesitation in finding that the plaintiff has not made out a cause of action. Upon the question of fraud I am also of the opinion that the plaintiff should not prevail.

That the defendant is incapable of bearing children is established by the evidence with reasonable certainty. While the medical experts who had examined her would not swear that it was impossible for her to conceive and bear children, they practically agreed it was extremely improbable that she could ever do so. It is unnecessary to attempt to determine this point, however, because the decision of the case, as I find the facts, does not depend upon it. Even if the defendant's barrenness were proven beyond question, that fact alone would not entitle the plaintiff to an annulment. The physical incapacity referred to by our statute (section 1743, Code Civ. Proc.) in declaring as one of the grounds for annulling a marriage "that one of the parties was physically incapable of entering into the marriage state" means, as was said in Payne v. Payne, 46 Minn. 467, 49 N. W. 230, 24 Am. St. Rep. 240, in construing a similar statute, "want of potentia copulandi, and not merely incapacity for procreation." In our own state there is a case precisely in point. In Wendel v. Wendel, 30 App. Div. 447, 52 N. Y. Supp. 72, the defendant had undergone a surgical operation by means of which her ovaries had been removed. This fact was not disclosed to the plaintiff, although he admitted that she did say to him that she had submitted to a serious surgical operation, and that she did not know for certain whether she would be able to bear children or not. Upon these facts the Appellate Division, reversing the trial court, held that the plaintiff was not entitled to an annulment, there being no impediment to the indulgence of the passions incident to the marriage state.

It is insisted that the present case is distinguishable from that, and that the defendant here knew of her inability and concealed or at any rate withheld information of the fact from the plaintiff. In proof of this claim various letters written by relatives of the defendant to her were put in evidence, but these letters were all in the Greek language, and the translations of the witnesses on the one side and the other were in direct conflict on all portions of the letters which are claimed to indicate knowledge on the part of the defendant and her relatives of her alleged incapacity to bear children; the numerous witnesses for the defendant giving to all such passages a translation quite devoid of any such significance. Upon these disputed passages I am satisfied that the testimony of the defendant's witnesses is the more reliable and should prevail. The defendant not only denies any knowledge of her alleged inability to have children, but insists that she has such ability and testifies to occasions, one of them comparatively recent, when she menstruated, and produced witnesses in corroboration; but, when analyzed, their evidence gives no real corroboration, but is based exclusively upon what the defendant told them, or signs which she exhibited to them which might easily have been prepared by her in advance for the purpose. But, notwithstanding some discrepancies in the defendant's testimony, and points in which she is contradicted by other witnesses, or by established facts, I am, nevertheless, of the opinion that there was a failure on the plaintiff's part to prove knowledge of the defendant of her alleged barrenness, and consequently any fraud on her part in failing to disclose that fact to the plaintiff.

There should be judgment for the defendant, with costs. Submit proposed findings, with proof of service.

and 140 New York State Reporter

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Supreme Court, Jefferson County, At Chambers. September 9, 1907.) 1. INTOXICATING LIQUORS-LIQUOB TAX CERTIFICATES-APPLICATION - CON.

SENT OF PROPERTY OWNERS.

Under Liquor Tax Law, Laws 1896, p. 60, C. 112, $ 17, subd. 6, as amended by Laws 1897, p. 220, c. 312, requiring the filing "simultaneously" with the statement, on an application for a liquor tax certificate, a consent by property owners, a consent filed August 8th, with an application filed by one person, cannot be used as the basis of an application by an

other filed 20 days later. 2. SAME-AMENDMENT OF CONSENT.

Under Liquor Tax Law, Laws 1900, p. 857, c. 367, § 17, subd. 11, requiring the filing of the statement of an applicant for a liquor tax certificate in the office of the county treasurer, who shall indorse thereon the date, the amount of tax paid, etc., the original record of the county treasurer consists of the statement, consent of property owners, and the indorsement, and the consent annexed to an application cannot be amend

ed so as to make it apply to an application presented by another. 3. SAME="EXECUTED."

Since the word "executed,” in Liquor Tax Law, Laws 1896, p. 60, C. 112, $ 17, subd. 6, as amended by Laws 1897, p. 220, c. 312, providing that the consent of property owners on an application for a liquor tax certificate shall be in writing, "executed" and acknowledged as deeds entitled to be recorded, is synonymous with the word "subscribed," which means to write one's name at the end of an instrument, names attached to a

consent, but which precede the consenting clause therein, are insufficient. In the matter of the petition of Stella M. Griffin for an order to revoke a liquor tax certificate issued to Walter W. Clayton. Petition granted.

Jas. A. Ward, for petitioner.
Joseph Nellis, for respondent.

1

ROGERS, J. The premises in question, No. 40 Mill street, in the city of Watertown, Jefferson county, N. Y., have never been used for the sale of liquors. On the 8th of August, 1907, William W. Thomas and William Place, having obtained a lease from the owners thereof, specifying that the said premises were to be used for the traffic in liquors, filed with the treasurer of Jefferson county a statement, duly signed and verified by them, whereby they applied for a liquor tax certificate authorizing the carrying on of said business at said street and number. There was attached the consent of the owners of certain dwellings situate within a radius of 200 feet from the place designated for such traffic. The bond required was filed, and the tax paid, whereupon a certificate was issued to said Thomas and Place for the purpose aforesaid. Before entering upon said business, it was discovered by said applicants that the requisite number of signatures of persons required to consent had not been obtained, and they voluntarily surrendered up said certificate, and made an application to the proper authorities for a return of the money paid therefor. Thereafter said lease was duly assigned to the respondent, Walter W. Clayton, who on the 28th day of August made an application to the county treasurer for a like liquor tax certificate, and executed and filed the requisite bond,

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seeking to avail himself of the consents obtained by Messrs. Thomas and Place, and adding thereto others sufficient to make the statutory number. The additional names intended to supply the omission are written on a "rider" affixed to the original statement of Thomas and Place, but above the consenting part, so that, preceding the names attached to amend the paper on file, there is only the statement of Thomas and Place; the consent obtained by them being made to follow the rider. This new piece of paper, with the additional names attached, was filed with the county treasurer August 28, 1907, the money paid, and a liquor tax certificate, running to Clayton, was filled out and signed by the treasurer ready for delivery when called for, which delivery was stayed by this proceeding to cancel.

Whether Clayton can have the benefit of the prior consent would not seem to be doubtful, except for the fact that the application blanks furnished by the excise department pursuant to statute put the question whether the consents had been “obtained and filed heretofore”; but I do not think this controlling. The statute provides that, with the statement constituting an application for a liquor tax certificate, there shall be filed "simultaneously” the necessary "consent” that such traffic in liquors be carried on at the premises mentioned. Liquor Tax Law, § 17, subd. 6 (Laws 1896, p. 60, c. 112, as amended by Laws 1897, p. 220, c. 312). Down to this time the right to traffic in liquors in the premises in question had never been acquired, as was done in Matter of Hawkins, 165 N. Y. 188, 58 N. E. 881. It was an original application. It does not seem to me that the consent filed August 8th can be a fair construction of the language of the statute said to have been filed "simultaneously with a statement which was placed on file in the office of the county treasurer 20 days thereafter. The original consent was filed "simultaneously” with the Thomas and Place statement, and pertained to it, and to it alone. To say that the then filing was simultaneous with the filing of a later paper would be a perversion of the meaning of a well-understood word. If this could be done after 20 days, why not 6 months or 12 months? I can see no safety in such a departure from the express language of the statute.

There are authorities to the effect that a paper in a judicial proceeding constituting a part of the record may not be used again in another proceeding, even where the same statement is required to be made or fact shown (McCoy v. Hyde, 8 Cow. 68; Cutler v. Biggs, 2 Hill, 409), though in the case of a vacated attachment the affidavit on which it was obtained may be used to procure a second warrant (Mojarrieta v. Saenz, 80 N. Y. 547). The last case cited, however, may not be an authority here, as the statute does not require that the warrant be filed at all, but that the affidavit be filed within 10 days. Code Civ. Proc. § 639. It seems to me that the Thomas and Place consent had served its purpose, had spent itself, and could not again be used as the basis of an application for a tax certificate.

Assuming, however, that a consent may be used a second time, can it be done in the manner employed here? The statute (Laws 1900, p. 857, c. 367, § 17, subd. 11) requires that the statement shall be filed in the office of the county treasurer, who shall indorse thereon the

and 140 New York State Reporter date of its receipt, the amount of tax paid, the date of issuing the tax certificate, and the premises where the business is to be carried on, and that "such indorsement shall be received in evidence in all courts in this state, and shall be competent and sufficient prima facie evidence of all the facts stated therein.” The statement, consent, and indorsement constitute one complete record of the particular case. No authority is given for amendment, as in case of judicial proceedings. Therefore it would seem that the original record in the office of the county treasurer, as made, should remain as it was, without erasure or interpolation, and that if, for any reason, the papers be deemed insufficient, new ones should be made and filed, so that the facts would appear as they actually occurred. Any other course would subject a solemn record, filed in an important county office, to manipulation, whereby rights might be improvidently conferred or destroyed. The alteration might not appear on the face of the particular record, and it might be inconvenient, or impossible, to show the fact by evidence outside. Before the change, the papers would be evidence of one thing, after the alteration, of quite another, and thus the intent of the statute giving them verity as "competent and sufficient prima facie evidence of all the facts stated therein," and making them admissible as such in "all courts of this state,” would be frustrated. The purpose of the person who added the rider to the Thomas-Place statement was, no doubt, honest and well intended; but that does not justify a manipulation of a public document lodged in a public office of the dignity of the one in question. I conclude, therefore, that the consent annexed to the Thomas and Place statement could not be amended in the manner attempted.

Beyond this is the fact that the rider containing the two additional names does not, in and of itself, purport to consent to anything. It precedes the consenting clause already executed and filed. The persons whose names appear therein testify that they intended to consent; but that statute provides for “the consent in writing * executed by the owner of the premises

and acknowledged as deeds entitled to be recorded.” Section 17, subd. 6. A rider attached to an otherwise complete and duly executed will has been held not a part of the will. Matter of Fults, 42 App. Div. 593, 59 N. Y. Supp. 756. "Execute" is synonymous with "subscribe." Cheney v. Cook, Wis. 413, 423. To "subscribe” means to write one's name beneath or at the end of an instrument. James v. Patten, 6 N. Y. 9, 12, 55 Am. Dec. 376; Com. v. Barhight, 75 Mass. 113, 114; Stone v. Marvel, 45 N. H. 481; Davis v. Shields, 26 Wend. 356; McGivern v. Fleming, 12 Daly, 289, 290; 7 Words & Phrases, 6729. The statute as to conveyance of lands provides that “a grant in fee, or of a freehold estate, must be subscribed by the person from whom the estate, or interest is intended to pass, or by his lawful agent” (Real Property Law, Laws 1896, p. 593, c. 547, 8 208), “and when duly acknowledged or proved" as therein found the deed may be recorded (section 241). Clearly this rider does not comply in letter or spirit with the liquor tax law or the real property law as to the execution of deeds of real estate so as to entitle them to be recorded.

My conclusion is that the certificate in question ought not to have been issued.

*

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