But it is to be noted that we spoke of the "purpose" of the dealing as that to "deprive" future creditors, and the proposition followed immediately upon the statement that the court had justifiably found that the transactions were all a part of a fraudulent scheme to that end. In the case at bar there is no allegation that the doings in question were in furtherance of a scheme to defraud subsequent creditors, no allegation that at the time thereof the corporation was insolvent, no allegation that the doings made it insolvent. The property alienated was in consideration of the transfer of two-thirds of the capital stock of the corporation made by one of the two owners thereof to the other, and there is no allegation that the realty conveyed, and the money paid, was in excess of the fair market value of the stock. I point out this omission but to show that the transaction, aside from the legality thereof, did not indicate an actual waste of the corporate property. The order is affirmed, with $10 costs and disbursements. All con cur. MEISEL v. CENTRAL TRUST CO. OF NEW YORK. (Supreme Court, Appellate Division, First Department. December 29, 1916.) APPEAL AND ERROR 843(1) QUESTION PRESENTED RIGHT TO RELIEF. On appeal from an order granting plaintiff's motion for judgment on the pleadings, where plaintiff is clearly not entitled to all the relief demanded in the complaint and for which she moves, the Appellate Division, in reversing, is not called upon to decide whether she is entitled to any relief. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 33313335, 3337-3341; Dec. Dig. ~~843(1).] Appeal from Special Term, New York County. Action by Insa R. Meisel, who sues on behalf of herself, etc., against the Central Trust Company of New York. From an order granting plaintiff's motion for judgment on the pleadings, defendant appeals. Order reversed, and motion denied. Argued before CLARKE, P. J., and MCLAUGHLIN, LAUGHLIN, SCOTT, and DOWLING, JJ. Lewis H. Freedman, of New York City, for appellant. We are PER CURIAM. The plaintiff is clearly not entitled to all the relief demanded in the complaint, and for which she moves. not now called upon to decided whether she is entitled to any relief, for her only motion was for judgment on the pleadings for the relief demanded in the complaint. The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. Order filed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes GREEN, State Excise Com'r, v. ALTENKIRCH et al. (Supreme Court, Appellate Division, Second Department. December 30, 1916.) J. JUDGMENT 648-ACTION ON LIQUOR DEALER'S BOND-EVIDENCE-CONVICTION FOR CRIME. In an action on the bond of a liquor dealer for permitting the premises to become disorderly, a conviction of the dealer's wife for keeping the premises as a disorderly house is not admissible to show that it was in fact disorderly, though the people might be considered the real party plaintiff in both cases, since, even between the same parties, a conviction for crime is not evidence in a civil suit of the facts on which it is based. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1309, 1310; Dec. Dig. 648.] 2. CRIMINAL LAW 829(16)—INSTRUCTIONS-INTEREST QUESTS. OF WITNESS-RE In an action on the bond of a liquor dealer for permitting the premises to become disorderly, where the dealer's wife testified in his behalf, an instruction that, though there was no witness who in law had an interest in the case, there were witnesses who might, by reason of their relation. ship to the parties, have a bias or prejudice for or against the parties, and, if the jury found such to be the fact, they should take it into account in weighing the testimony of such witness, was sufficient, so that it was not error to refuse a requested instruction that the dealer's wife was classed as an interested witness, since, under Code Civ. Proc. § 828, providing that a person shall not be incompetent as a witness because of interest in the action, or because he is a party thereto, or is the husband or wife of such party, the wife, merely as such, is not an interested witness. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. 829(16).] Appeal from Trial Term, Queens County. Action by George E. Green, as State Commissioner of Excise against Max Altenkirch, for whom Maximilian Altenkirch, as administrator, was substituted as defendant, and another. Judgment for the defendants, and plaintiff appeals. Affirmed. Argued before JENKS, P. J., and CARR, MILLS, RICH, and PUTNAM, JJ. Charles R. O'Connor, of Hobart, for appellant. Herbert A. O'Brien, of Jamaica, for respondent Altenkirch. George O. Redington, of New York City, for respondent United States Fidelity & Guaranty Co. JENKS, P. J. The state commissioner of excise sues principal and surety for a violation of their bond, in that the former permitted the certificated premises to become, be, and remain disorderly. The question of the principal's conduct was litigated, and the jury found for the defendants. I think that we should not heed the plea that the verdict is contrary to the proof. The plaintiff contends that the court committed certain reversible errors in rulings, of which only two deserve consideration: [1] 1. The wife of the principal, who resided with him in the said premises, had alone been tried and convicted in a Court of Spe For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes cial Sessions for a violation of section 1146 of the Penal Law, in keeping the premises as a disorderly house. The plaintiff offered in evidence a certificate and record of her conviction, with the contention: "It is a record of conviction; it is practically a litigation of the matters between the plaintiff here and the defendants; it is a judgment of the court, and practically, when admitted, we are entitled to a direction of a verdict.” The final ruling of the court excluded the record as to both defendants, and the jury was instructed to disregard it. I think that the ruling was right. In Sims v. Sims, 75 N. Y. 466, Rapallo, J., for the court, discussed, but did not determine, the general question involved in this ruling. That learned judge found that the decisions were not harmonious as to whether, in a civil action, the record of conviction for a crime was admissible as prima facie evidence as to the facts, or not competent at all, but said: "There is a great weight of authority against its being admissible at all, except as evidence of the fact of conviction, where that fact is material." He pointed out that this is the general rule approved by Greenleaf and declared in many cases. In Wilson v. Manhattan Railway Co., 2 Misc. Rep. 127, 20 N. Y. Supp. 852, Wilson sued for false imprisonment. Pryor, J., writing for the court (the General Term of the Common Pleas), said: "The police court convicted the plaintiff; and appellant contends that the trial judge erred in refusing to charge that such conviction was evidence of plaintiff's guilt. The proposition is untenable. A judgment in a criminal prosecution is admissible in a civil case only to establish the fact of the rendition of the judgment, but is not evidence of the facts upon which the judgment proceeded; that is, of the guilt of the accused. And this because neither the parties, nor the rules of decision, nor the course of proceedings, are identical in the two actions. 1 Greenl. on Ev. § 587; 2 Wharton's Law of Ev. § 776. In malicious prosecution an acquittal of the plaintiff, though an indispensable condition of the action, is not evidence of his innocence between the parties." The judgment was affirmed on the opinion below. Wilson v. Manhattan Ry. Co., 144 N. Y. 623, 39 N. Ë. 495. In Stone v. U. S., 167 U. S. 178-184, 17 Sup. Ct. 778, 780 (42 L. Ed. 127), an action to recover the value of certain timber, it appeared that the defendant had been indicted criminally for the cutting of the timber and had been acquitted. The court say: "In our opinion, the record of the criminal proceedings in the court in Idaho was not evidence to establish or disprove any of the material facts involved in the civil action." And the court then proceeds to limit Coffey v. U. S., 116 U. S. 436, 6 Sup. Ct. 437, 29 L. Ed. 684. See, too, People v. Rohrs, 49 Hun, 150, 1 N. Y. Supp. 672; People v. Snyder, 90 App. Div. 422423, 86 N. Y. Supp. 415; City of Woodburn v. Aplin, 64 Or. 610621, 131 Pac. 516; 1 Greenleaf on Evidence (15th Ed.) § 537; Wharton on Evidence, §§ 776 and 777; Black on Judgments (2d Ed.) p. 794; 1 Herman on Estoppel, 483; Starkie on Evidence (10th Ed.) 331; Jones' Com. on Evidence, § 589. In Castrique v. Imrie, 4 H. of L. 415, Blackburn, J., at page 434, says: "A judgment in an English court is not conclusive as to anything but the point decided, and therefore a judgment of conviction on an indictment for forging a bill of exchange, though conclusive as to the prisoner being a convicted felon, is not only not conclusive, but is not even admissible evidence, of the forgery in an action on the bill, though the conviction must have proceeded on the ground that the bill was forged." Greenleaf on Evidence, supra, says: "Upon the foregoing principles, it is obvious that, as a general rule, a verdict and judgment in a criminal case, though admissible to establish the fact of the mere rendition of the judgment, cannot be given in evidence in a civil action, to establish the facts on which it was rendered." Farley v. Patterson, 166 App. Div. 358, 152 N. Y. Supp. 59, in so far as it holds that the judgment of conviction established the plaintiff's case, is against the weight of the authorities. It is true that such judgment established the fact of the conviction, but not the fact of the guilt. See the remarks of Rapallo, J., in Sims' Case, supra, 75 N. Y. 471, 472, as to the discrimination and the possible confusion. The learned court in Farley's Case, supra, states that the judgment of acquittal would not be evidence against the people in a civil action. Now, in People v. Snyder, supra, the court, in consideration of People v. Rohrs, supra, quoted with approval this language of the court: "The question litigated in the criminal proceeding was whether or not Rohrs had violated the statute. It was judicially determined that he had not so done. It would seem, therefore, that the very question to be tried in this action had already been litigated between the parties and determined in the defendant Rohrs' favor. The difficulty, however, in holding that the result in the criminal proceeding estopped the people from trying the question of Rohrs' violation of the statute in this action, arises from the fact that, if Rohrs had been found guilty in the criminal action, the record in that action would not have been evidence against Rohrs in this action, and therefore, because of the want of mutuality, no estoppel can arise." And in Rohrs' Case the court continued: "Greenleaf (volume 1, § 524) lays down the rule with great distinctness." The learned counsel for the appellant insists that the parties are the same in both cases, as the people of the state (the real plaintiff) and the defendant's "alter ego, his wife," litigated the question. But in People v. Snyder, supra, the court say: "The contention here, however, is founded largely upon the facts that the two remedies are prosecuted in the name of the people, and the suit for the penalty is quasi criminal in character. They are, however, entirely independent, and one is a criminal and the other a civil action. * The authori ties in this state, as far as our research has extended, are uniform in holding that the two actions are not at all dependent upon each other." I am not aware that a judgment of conviction of a wife is a judgment of conviction of the husband, in that she is his "alter ego." Indeed, in the criminal law, there is not even presumption of the husband's coercion in cases of "the keeping of brothels and other disorderly houses." Bishop's New Crim. Law, vol. 1, § 361. 162 N.Y.S.-29 I think that in any event the record of the conviction of the wife was not competent evidence to prove or to disprove any of the material facts as against her husband, the principal, or against the surety. The learned court, expressing doubt as to the admissibility of the evidence in any event, also ruled it out upon the ground that there was no conviction, inasmuch as it appeared that sentence had been suspended. I think that the court was sustained by People v. Fabian, 192 N. Y. 443, 85 N. E. 672, 18 L. R. A. (N. S.) 684, 127 Am. St. Rep. 917, 15 Ann. Cas. 100. Moreover, I doubt whether the statutory rule of evidence, enacted subsequent to Fabian's Case, supra, and Matter of H. Koehler & Co., 193 N. Y. 605, 86 N. E. 1125, that the term "conviction," as used in the Liquor Tax Law, includes and means "a finding of guilt, resulting from a plea of guilty, the decision of a court or magistrate, or the verdict of a jury, irrespective of the pronouncing of judgment or the suspension thereof" (chapter 485, § 2, Laws of 1910), applies to an action like unto the one at bar. It would seem, rather, that the rule relates to cases within sections 21, 23, 24, 26, and 36 of the Liquor Tax Law (Consol. Laws, c. 34). [2] 2. It is contended that the court erred in refusal to charge that the wife of the principal, as such, is classed as an interested witness. But the court, immediately before, had instructed the jury that, although there was no witness in the case who had in the law an interest in the litigation, there were witnesses "who may, by reason of their relationship to, or service for, or their position in service of, the parties to this litigation, in the judgment of the jury, be found to have a bias or prejudice for or against the parties to the action, and that, if there be such witnesses, the jury may, upon finding that fact, take that fact into account in determining the weight which they will give to the testimony of such a witness." I think that in this case the court indicated sufficiently the possible status of the wife of the defendant as a witness. The wife, merely as such, was not an "interested witness." See § 828, Code of Civil Procedure; Fogal v. Page, 13 N. Y. Supp. 656-658. While it was not essential to her description as an "interested" witness that she should have a direct pecuniary interest in the outcome (Wohlfahrt v. Beckert, 92 N. Y. 491, 44 Am. Rep. 406), nothing was developed that justified her characterization as an interested witness, beyond the instruction that I have quoted. The judgments and order are affirmed, with costs. All concur. 1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 59 Hun, 625. |