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I WEEKLY RECORD OF THE LAW AND THE LAWYERS.
not consent to, the unanimous opinion being The Albany Law Journal.
that his place could not well be filled. Justice Patterson was keenly appreciative of the
honor conferred in the governor's designaWeekly Record of the Law and the Lawyers. Published by tion and insistence, but finally deferred to the ontributions, items of news about courts, judges and learners' wishes of his colleagues and came to Albany resses on legal topics, or discussions on questions pots timely for the purpose of personally declining the ad in legal proceedings.
honor sought to be conferred. Regarding
his tender of the judgeship to Justice PatterAll communications intended for the Editor should be ad. mesed simply to the Editor of THE ALBANY LAW JOURNAL. son, Gov. Roosevelt said: “I took the great
letters relating to advertisements, subscriptions, or other siness matters, should be addressed to THE ALBANY LAW est pleasure in offering the appointment to VURNAL COMPANY.)
Judge Patterson, because, like other citizens abscription price, Five Dollars per aanam in advance. Single of New York, I had been able to watch his iber Twenty-Five Conts.
course at close range, and I felt honored my
self at the privilege of showing my appreciaALBANY, JANUARY 6, 1900.
tion of a judge so upright and able.” The
original Court of Appeals consists of a chief Current Topics.
judge and six associates, the number of the HE additional judges of the New York latter being now increased to nine. The Court of Appeals authorized by the
court will convene on the oth inst., and, acimendment to the Constitution adopted by of the original court will sit for the first two
cording to the plan adopted, all of the judges vote of the people in November last, were announced on the first inst. by Governor weeks; then three of the associate judges will Roosevelt
. They are Justices Edgar J. go off the bench for the purpose of writing Cullen, of Brooklyn, Judson S. Landon, of opinions, their places being taken by the
three new judges. At the end of two weeks Schenectady, and William S. Werner, of Rochester. All are now members of the Ap- off the bench and their places will be taken
more the other three associate judges will go pellate Division of the Supreme Court. The plan of designating three instead of four by the three judges who first went off. At
the end of six weeks the court will take a justices, as was Gov. Roosevelt's first intention, was followed on the advice of the pres
week's recess, and this plan will be followed int members of the Court of Appeals. In throughout the year. Thus, in every seven ursuance of the first plan, the governor had weeks the court will be in session six weeks, elected Justices Cullen, of Brooklyn, Lan- and each judge will serve four weeks on the don, of Schenectady, Patterson, of New bench, with three weeks in which to write York, and Childs, of Medina; the latter two, opinions. Formerly the court remained in however, declined the appointment, much to session for four weeks, and then took a recess the regret of Gov. Roosevelt who, as an
for three weeks. The new plan will be folnounced in the last issue of the Law JOUR- lowed until July 1, when the usual summer NAL, was particularly anxious to have Jus- recess will be taken until the first week in tice Patterson accept a seat on the Court of October. It is one of the features of the Appeals bench. This his colleagues would 'plan of relief that the chief judge shall sit
VOL. 61 – No. 1.
continuously, by reason of the work in the him into retirement from judicial labors uniconsultation room. It is confidently ex-versal good wishes for many years of honor pected that by reason of the additions to the and happiness. Another notable judiciai membership of the court its sitting time will record closed with the retirement of Justice be increased fully fifty per cent., and that it Joseph F. Barnard, of Poughkeepsie, N. Y., will be possible to practically clear the calen- after thirty-six years of continuous service dar in two years. There are at present 880 on the bench of the Supreme Court. He was appeals pending argument before the court. elected to the bench in 1863 for eight years, Heretofore about three years has been re-elected in 1871 for a term of fourteen required after notice of appeal to reach a years, and again re-elected in 1885 for a term decision in a given case, and this fact has of fourteen years. The age limit overtook frequently led to appeals being taken by him in 1893, and he has served since by apparties who, without feeling at all confident pointment of the governor under a provision of ultimate success, took this course in order especially inserted in the last Constitution of to secure the two or three years' delay which the State to meet his case. The term for must necessarily ensue before judgment which he was last elected having expired, he could be entered. With prospect of much will not be again eligible for assignment. more speedy results, it is not improbable Justice Barnard was born in Nantucket, that there will be fewer appeals taken, and Mass., in 1823. He was graduated from thus the work of the court will be lightened. Yale college in 1841, and was admitted to the The plan thus briefly outlined, while not per- bar in 1844, after which he practiced law in haps the ideal one, gives promise of results Poughkeepsie until his elevation to the bench quite satisfactory to lawyers and litigants by in 1863. In 1870 he was appointed by the whom its operation will be watched with governor presiding justice of the General interest.
Term. His last two elections were not op
posed. It is estimated that Judge Barnard The retirement of Justice Hardin from the has tried more than 100,000 issues of law and bench of the Fourth Appellate Division was fact. marked by a notable gathering of judges and lawyers at Rochester, N. Y., on the 29th ult., A lawyer resuming the practice of his proassembled to testify their appreciation of the fession after passing his ninety-fourth year retiring jurist's services and their sincere re- is an event so seldom witnessed that it calls gret that he could not longer serve the people for something more than passing comment. in his capacity as a judge. The department The gentleman who has achieved this rare includes the Fifth, Seventh and Eighth judi- distinction is Benjamin Douglas Silliman, cial districts, and on the occasion referred to LL. D., of New York. He may well be deevery county in the three districts was repre- scribed as the “Grand Old Man" of the legal sented. Former chief judge of the Court of profession; a relic of a former generation. Appeals, Charles Andrews, presided, and Born in Newport, R. I., September 24, 1805, with others testified to the esteem in which his family removed to New York when he Justice Hardin is held in words of warmest was a child, and since that time he has been a eulogy. Twenty-eight years ago Judge resident mainly of the city of Brooklyn. He Hardin took his seat on the Supreme bench; is descended from Pilgrim stock, and on the he has completed two terms of fourteen years side of his father's mother traces his lineage each, with a couple of years still to serve be- to John Alden and Priscilla Mullins. Genfore reaching the age of retirement. He pre- eral G. S. Silliman, of Connecticut, was his ferred not to accept a re-election for that grandfather, and Gold S. Silliman his father; time, but voluntarily retired while in the full the latter died in Brooklyn, N. Y., in 1868, possession of the faculties which have im- at the age of ninety-one. Benjamin D. Sillipressed his name imperishably upon the man was graduated from Yale in 1824, and is jurisprudence of the State. He carries with now the sole surviving member of that not
able class. Having studied law in the office body, and is able to look back upon a wellof Chancellor Kent and his son, Judge Wil- spent life, a life of toil and triumph. Those liam Kent, Mr. Silliman was admitted to the who enjoy the rare privilege of his personal bar in 1829, and began practice in New York acquaintance say that he possesses a rare City. His success has been remarkable. It fund of reminescence and anecdote of many has been said of him that he never lost his of the great statesmen and lawyers of the temper in court, and that his successes were past, including not a few former governors invariably won by methods dignified, manly of New York with whom he was on terms of and honorable. In early life a Whig, Mr. intimacy, and that when in the mood he is Silliman represented his party in the legisla- one of the most entertaining of men. Long ture from Brooklyn, as far back as 1838. He may he live as a link connecting us with was frequently a delegate to local, State and former generations. National conventions. In 1854, as a Republican, he accepted the office of district attor
Apropos of Mr. Silliman's resumption of ney for the eastern district of New York, but practice, it is interesting to observe that the resigned in 1866 because the duties of the English legal journals are endeavoring to office interefered with his practice. In 1872 ascertain who is the oldest practitioner in he became a member of the commission to England. Mr. George Hensman, who was revise the Constitution of the State of New admitted in 1831, two years after Mr. SilliYork, and in 1873 was defeated as a candi- man, seems to be entitled to the honor; but date for attorney-general of the State. In two other solicitors are stated in the Law List the same year Columbia College conferred to have been admitted in 1831, viz.: Mr. John upon Mr. Silliman the honorary degree of Shaw and Mr. W. D. H. Oehme, of Upper LL. D., and in 1874 Yale conferred a similar Norwood. honor upon him. For twenty years he was president of the Brooklyn Club, has also been We begin the publication in this issue of a president of the Yale Alumni Association, somewhat elaborate biographical sketch of and has been a director in numerous literary Lucien Brock Proctor, the well-known hisand benevolent associations. He was also torian and legal biographer which, if propone of the founders and vice-president of the erly written, cannot, we think, fail to interest Bar Association. If, as we are told hy spe- and instruct our readers. Although he has cialists, marriage is conducive to longevity, been before the public for many years, owing then Mr. Silliman, inust be one of the ex- to his own peculiar modesty in this regard, ceptions, for he has avoided wedlock, to- very little has ever been written about Mr. gether with stimulants of all kinds and all Proctor's life and career. The article, which irregular habits. His remarkable success at will be continued through several numbers the bar doubtless has been due to his pro- of the ALBANY LAW JOURNAL, will, we bedigious industry, coupled with native ability. lieve, appeal not only to Albanians, but to Something over ten years ago, at the time of readers in all parts of the country who have his retirement from active practice, Mr. Silli- been interested and instructed by his many man was tendered a public banquet at Del-productions on historical and legal topics, monico's. Now, his health having greatly but who know little or nothing of the writer improved, he returns to active practice with personally, or of his long and remarkably mind as clear and brain almost as active as successful career at the bar, which has been if he had not been engaged in the practice of set forth in some detail. the law for more than sixty years. A learned lawyer, a ripe scholar, a lover of his race, and The North Carolina Bar Association, alwithal modest to a fault as to his personal though a mere fledgling among similar achievements, Mr. Silliman, as he approaches organizations, having begun its existence on the century mark, enjoys remarkably good the oth of February, 1899. appears to be in health, is wonderfully vigorous in mind and la very healthy and flourishing condition. .
of the year.
There were 157 charter members, the num- condition. For this reason the legal effect of the ber having increased to nearly 300 at the end judgment after the death of the husband was not The first annual meeting was
expressly decided. This decision was modified
upon appeal. (Id., 116 N. Y. 635, 22 N. E. 1914.) held on July 5th, 6th and 7th, at Morehead But it was upon other grounds, and in nowise City, N. C., with 114 members present. The affected the question which we are now considerofficers for 1899–1900 include: President, ing. The same rule obtains in Massachusetts as Chas. F. Warren; Secretary and Treasurer,
was announced in the Field case, supra. (Knapp J. Crawford Biggs; Executive Committee, mind that, under the provisions of law as existing
v. Knapp, 134 Mass. 353.) It is to be borne in F. H. Busbee (Chairman), J. S. Vanning, in this State, the innocent wife who obtains a W. R. Allen, R. B. Peebles, H. A. London divorce does not lose her right of dower in the and Clement Manly. The organization evi- estate of her husband, existing at the time. Her dently is admirably officered, and its flourish- right to be endowed is only excluded from subse
quently acquired real property. This considering condition is a matter for general con
ation, among others, led Mr. Justice Van Brunt gratulation.
and the General Term of the First Department to
the conclusion which they reached; and in 2 Nels. Notes of Cases.
Div. & Sep. (sec. 932), the learned author reaches
the conclusion that, in those States where the Divorce - Judgment for Alimony - Effect.
divorce does not terminate the right of dower, the In Johns v. Johns, decided by the New York Su-effect of a decree awarding alimony during life preme Court, Appellate Division, Second Depart-terminates with the death of the party charged. ment, in November, 1899, it appeared that a
(Id., p. 879.) The plaintiff, however, challenges judgment for divorce directed the payment of this view of the law. and insists that it is in contraalimony to the wife during her lifetime, and also vention of the decision in Burr v. Burr (10 Paige. required the husband to pay the premiums on
20). It seems clear that the opinion in that case insurance policies issued on his life, which were
went to the extent of holding that the court was payable to the wife, and only became due and possessed of authority to continue the payment of payable on his death. It was held that in view of alimony beyond the life of the husband charged; the fact that the judgment made provision, in the but this case, and others which follow it, are clearly matter of the insurance policies, for plaintiff on
distinguishable from the judgment in the case at defendant's death, the provision directing payment bar, as therein the defendant was decreed to pay of alimony to plaintiff during her lifetime meant
an annuity, and was also required to give security during the lives of both parties, and hence had no
for its payment, so that it became a charge upon hinding force after defendant's death. The court
his estate, to be enforced by virtue of the terms of said in part:
the judgment entered in the action. The rights. of In Field v. Field (15 Abb. N. C. 434). Mr. Justice the parties thereunder became clearly fixed in this Van Brunt reached the conclusion, in construing regard, and the right was regarded as secured by the provision of a judgment directing the payment the express terms of the power as exercised by the of alimony to the plaintiff during her life, that it
courts. And this is apparent in the decision rendid not have the effect of extending its operation dered in the Court of Errors, as reported in Burr beyond the lifetime of either of the parties. Upon
v. Burr (7 Hill, 207). The same power was also appeal the General Term affirmed the decision of exercised in Peckford v. Peckford (1 Paige, 274) Mr. Justice Van Brunt, and for the reasons stated and in Forest v. Forest (3 Abb. Prac. 144-166). in his opinion (Id. 437, 438). In Galusha v. We may assume, therefore, without deciding, as it Galusha (43 Hun, 181) the subject was again under is not necessary to a disposition of the present consideration, and was therein held (Mr. Justice
case, that such power still remains in the court: Bradley writing the opinion) that, in order to
but it is also well settled, by the decisions already render effectual payment of alimony after the
cited, that such power must be clearly expressed in death of the party charged, some direction was
the judgment or it will not pass. In Craig v. Craig required to be made in the judgment to effectuate (163 111. 176. 45 N. E. 153) it was held that a judgsuch purpose; and it is evident, from the discussion therein had, that the mere expression directing
ment decreeing the payment of permanent alimony
“ until the further order of this court," and making payment during the life of the party entitled was not sufficient to charge the estate of the deceased
the same a specific lien upon land, only continued party, as no method was provided for its enforce- during the lifetime of both parties — the rule ment. In that case the judgment provided for
therein announced being that it must unequivoalimony during the life of the plaintiff, to be cally appear in the judgment that the intention was secured by a mortgage, with the reservation of to bind the heir by the decree or it terminated right in either party to apply for a change of the upon the death of the defendant; and such is the