* *

*

First Department, May, 1908.

[Vol. 126. against her, and dissolved the marriage between her and the husband. * * * Doubtless the word conviction ordinarily signifies the finding of the jury by a verdict that the accused is guilty. Yet the word sometimes denotes the final judgment of the court. Thus the case of a witness rendered incompetent to testify, by conviction for an infamous crime, has an analogy. The language of the law is that he is rendered incompetent by his conviction of treason, felony or crimen falsi; but to shut him from the witness box, his conviction must be shown by a judgment. (The People v. Herrick, 13 J. R. 82; The People v. Whipple, 9 Cow. 707. See, also, 10 Sm. & M., supra ; * 1 Den. Cr. Cas., supra,† where POLLOCK, B., says: 'A verdict of a jury in a civil cause is not evidence without judgment.")"

In Blaufus v. People (69 N. Y. 107) the question was as to the competency of a witness who had been indicted for perjury; the jury had found him guilty and he was then in custody awaiting sentence upon that verdict. FOLGER, J., said: "We have lately in civil cases been called upon to construe statutes of similar import. We have held in them that there was no conviction merely upon the finding of the question of fact, and that there must also be a judgment of the court. These cases arose under the acts relating to dower and the forfeiture of it by adultery. We do

*
*

not think that it is different under the criminal statutes involved in

this case. * * * In Lee v. Gansel (Cowp. 3) Ld. MANSFIELD lays it down that a conviction upon a charge of perjury is not sufficient unless followed by a judgment. I know of no case,' he says, 'where a conviction alone has been an objection: because upon a motion in arrest of judgment it may have been, or may be quashed.' * * * A kindred rule is, that a plea of autre fois convict can be proven only by the record; and the indictment, with the finding of the jury, etc., indorsed by the proper officer is not sufficient, although it appear that no record has been made up (Rex v. Bowman, 6 Car. & P. 99). * * * The People v. Herrick (13 J. R.§ 82) is always considered an authority to this point. The People v. Whipple (9 Cowen, 707) is express."

*Kreithler v. State of Mississippi, (18 Miss. [10 Sm. & M.] 192). — [REP.

See Reg. v. Hinks, p. 84.- [REP.

§ Johnson's Reports. — [REP.

See page 101.— [REP.

App. Div.]

First Department, May, 1908.

In People v. McGloin (91 N. Y. 241) RUGER, Ch. J., said: “It is claimed that Banfield was rendered incompetent to testify as a witness in the case, by virtue of the provisions of the Revised Statutes (vol. 3 [Banks' 6th ed.], 994, § 43, tit. 7), the essential portions of which read as follows: 'No person sentenced upon a conviction for felony shall be competent to testify in any cause, matter or proceeding, civil or criminal, unless he be pardoned by the Governor or by the Legislature, except in the cases specially provided by law.' It is claimed that section 832 of the Code of Civil Procedure which was in force at the time of the commission of this crime, and which reads as follows: A person who has been convicted of a crime or misdemeanor, is notwithstanding a competent witness in a civil or criminal action, or special proteeding, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or by his cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining him is not concluded by his answer to such a question,' does not restore the competency of the witness, because the disqualification imposed by the foregoing section of the Revised Statutes follows only upon a 'sentence based upon a conviction for a felony,' whereas, the subsequent enabling statute, embodied in section 832 of the Code of Civil Procedure, relieves only those who have been disqualified by a conviction of a crime or misdemeanor, leaving, as it is claimed, those who have been tried, convicted and sentenced, still subject to the exclusion pronounced by the Revised Statutes. It is hardly conceivable that this construction can be seriously urged. Both at common law and by statute a witness becomes disqualified, only after sentence rendered upon a conviction for felony. (People v. Whipple, 9 Cow. 707; People v. Herrick, 13 Johns. 82.) When it is considered that a mere conviction, not followed by a sentence, never worked a disability, it will be seen that the construction contended for by the plaintiff in error would deprive section 832 of the Code of Civil Procedure, as well as section 714 of the Penal Code, of any meaning or effect whatThe language used in section 832 to describe the object intended to be accomplished is that which has obtained invariable usage, not only in the reports, but with text writers, and is there used according to the signification given to it by

soever.

* * *

First Department, May, 1908.

[Vol. 126. legal writers. It was, therefore, an accurate legal description of such a disqualification to say that it is produced by a conviction of a felony. It is the depravity of nature evidenced by the conviction that creates the disability, and is the only cause of that disability. It is the infamy of the crime and not the nature of the punishment which destroys competency.' (1 Wharton's Criminal Law, § 760.*) While the terms 'disqualified by a sentence for crime,' or similar words, are never found in the text books or reports, the language used in section 832 is invariably employed to describe the disability referred to. (Jackson v. Osborn, 2 Wend. 555; 13 Johns. 82, supra +; Hilts v. Colvin, 14 id. 182.) The disqualification, though entirely based upon the conviction, yet, in order to preclude the possibility that the conviction may have been nullified by a motion in arrest or other proceeding, is by the Revised Statutes required to be followed by a sentence in order to become effectual. There is not one disqualification produced by a conviction, and another by a sentence, but both conviction and sentence together produce one and the same disqualification. The removal of the cause of disqualification necessarily restores the competency of the witness, without reference to the fact as to whether he was sentenced or not. It was evidently the intention of the Legislature to remove the disqualification in question, and it is our duty in construing this statute to give effect to that intention. From the irreconcilable repugnancy which exists between these acts, the inference inevitably follows that the provisions of the Revised Statutes were intended to be repealed by the enactment of the Code of Civil Procedure." (Sec, also, People v. Sullivan, 34 App. Div. 544.)

r

In People ex rel. Forsyth v. Court of Sessions (141 N. Y. 294) it was said: "The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it and all civil disabilities remain and become operative when judgment is rendered."

From the foregoing authorities and many in other jurisdictions which it does not seem necessary to cite, it seems to me that it is a fair conclusion that where disabilities, disqualifications and forfeitures are to follow upon a conviction, that in the eye of the law it is *See 5th ed.- [REP.

+ People v. Herrick.- [REP.

App. Div.]

Fourth Department, May, 1908.

that conviction which is evidenced by sentence and judgment, and that where sentence is suspended and so the direct consequences of fine and imprisonment are suspended or postponed temporarily or indefinitely, so also the indirect consequences are likewise postponed.

It seems to me that where the word "conviction" is construed to mean "verdict ” — and it is so construed at times - that construction has been in the interest of the defendant, but when that interest requires the word to mean sentence or judgment, that construction has been adopted. For these reasons I conclude that the judgment appealed from sustaining the demurrer to the indictment should be affirmed.

HOUGHTON, J., concurred.

Judgment reversed and demurrer overruled and case remitted to the Court of General Sessions, to be proceeded with according to law.

ORPHA LENOX, Respondent, v. JAMES LENOX and Others,

Appellants.

Fourth Department, May 6, 1908.

Real property — facts insufficient to establish equitable lien - husband and wife - when action by widow on her husband's contract does not lie.

Action to establish an equitable lien on lands. It appeared that the plaintiff and her husband had lived on his father's farm, at first working the same on shares and afterwards paying a money rental. There was evidence that the father prior to the death of the plaintiff's husband had promised to devise the farm to him provided he advanced part of the consideration for the purchase of another farm, and at the father's death should pay certain sums to other parties. Although such will was actually made it did not appear that the plaintiff's husband had formally accepted his father's proposition or did any thing from which an acceptance could be implied, except remaining on the farm as before, paying rent and making certain improvements, nor did he by any express agreement obligate himself to make the payments to third parties upon the death of his father. The plaintiff's husband did, however, pay to his father a certain sum which was used as part of the purchase price of other property. After her husband's death the plaintiff worked for her father-in

Fourth Department, May, 1908.

[Vol. 126. law and gave evidence that he made a similar agreement to devise the farm to her and executed a will to that effect. It was not alleged or proved that the father was not at all times able to pay any judgment which might be recovered against him. On all the evidence,

Held, that the alleged agreements and acts done pursuant thereto were too indefinite and uncertain to authorize a court of equity to impose an equitable lien upon the lands in favor of either the plaintiff or her husband, and that the remedy, if any, was at law;

That the plaintiff could not sue individually at law on the alleged contract of her husband, or for the money paid by him, in the absence of an assignment of the claims, for the reason that they belonged to his estate and were subject to administration for the payment of his debts and distribution.

APPEAL by the defendants, James Lenox and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 15th day of November, 1907, upon the decision of the court rendered after a trial at the Erie Special Term adjudging the defendant James Lenox to be indebted to the plaintiff in the sum of $2,157, and directing judgment against him personally for that amount, with costs, and also adjudging the plaintiff to have an interest in the premises described in the complaint to that amount, which constitutes a lien upon the The judgment also directs that if such amount is not paid by the defendant James Lenox within thirty days after entry of judgment against him and service of a copy thereof upon him, the premises shall be sold according to the usual practice of the court and that out of the proceeds the amount adjudged to be due to the plaintiff and the costs awarded shall be first paid, with interest, and that any sums remaining shall be paid to the defendants Sarah A. Taylor and Frances E. Lenox, share and share alike, and that in case of deficiency the plaintiff shall have judgment against the defendant James Lenox for the amount thereof.

same.

The action was commenced on the 13th day of July, 1907, practically to obtain the relief awarded by the judgment.

Fred J. Blackmon and II. A. Reynolds for the appellants.

Ernest F. Kruse, for the respondent.

MCLENNAN, P. J.:

The defendant James Lenox, who at the time of the trial was seventy-four years of age, was the owner of the premises described