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duty, under the by-laws of the board, to notify members (per accompanying Ust) that such action has been taken.
“The claim will be held here until January 29, 1 p. m., when, if not settled, it will be sent to an attorney, with directions to commence proceedings for collection. Please give the matter your immediate attention, and communicate direct with this office. "Yours respectfully,
The Stationers' Board of Trade.
"E. H. Loveless, Secretary." "In answering, please use our docket No. E700-80.”
The "accompanying list” referred to contained the names and addresses of a large number of persons doing business in the city of New York and elsewhere.
The question is whether the words, "in that event it will become our duty, under the by-laws of the board, to notify members (per accompanying list) that such action has been taken,” when considered with the context, come within the prohibitions of section 559 of the Penal Code. This section, prior to 1891, provided that a person "who, knowing the contents thereof, sends * * * any letter * * * threatening to do any unlawful injury to the person or property of another," is guilty of a misdemeanor. By chapter 120, P. 288, of the Laws of 1891, the section was amended by adding "or any person who shall knowingly send * * * any letter * * * with intent thereby to cause annoyance to any person" is guilty of a misdemeanor. Section 559 of the Penal Code, as it existed prior to the above referred to amendment of 1891, was intended to cover a state of facts which did not come within the provisions of sections 254 and 558 of the Penal Code, relating to “Threatening to Publish a Libel" and "Blackmail." But even then the section was not sufficiently comprehensive; and to meet this inadequacy the Legislature enacted chapter 120, p. 288, of the Laws of 1891, and thereby defined as a misdemeanor cases not covered by section 558 or section 559 of the Penal Code as originally enacted. Section 559, as originally enacted, related to a writing threatening to do an unlawful injury to the person or property of another. By "unlawful injury". is meant an injury resulting from an act prohibited by the law of the state, whether common or statutory; and an "unlawful injury” may be redressed by civil remedy or criminal prosecution, as the case may be.
The defendant contends that a notice, if sent by him to the members of the Stationers' Board of Trade, as threatened in the above referred to letter, would not be libelous, because such communication would be privileged (Reynolds v. Plumbers' Protective Ass'n, 30 Misc. Rep. 709, 63 N. Y. Supp. 303, affirmed 169 N. Y. 614, 62 N. E. 1100), and therefore, as such act would not constitute an "unlawful injury," the threat contained in defendant's letter was not a threat to do an "unlawful injury.” It is not necessary to determine whether the phraseology found in the letter in question constitutes a threat to do an "unlawful injury,” for the clear purpose of the amendment of 1891 was to extend the statute so as to include those cases where the act threatened would not constitute an "unlawful injury," but would cause annoyance, difficulty, and embarrassment, for which no legal redress was provided. In the Reynolds Case, supra, the action was for libel, and the question was whether the communication sent and 118 New York State Reporter by the Plumbers' Protective Association was privileged. But the case at bar is not analogous with the Reynolds Case. The purpose here was.not to give a notice to the members of the Stationers' Board of Trade for their benefit, but was solely to force the complainant, who was not a member of the Stationers' Board of Trade, into a position where he would be compelled to pay. Such a result was to be obtained by threatening the complainant to notify a large number of persons that the claim had been placed in the hands of an attorney. In other words, there was an attempt to usurp the function of the courts, and to compel the complainant to satisfy a claim in controversy, not upon the merits of the claim, nor because the complainant desired to avoid litigation, but because the threat would induce, or have the tendency to induce, the complainant to pay through fear of impairment of his credit. To that end, the letter was of a character calculated to cause annoyance to the complainant. The threat was to send to a large number of persons a notice which might or would be subject to misconstruction, and which would not fairly state what controversy, if any, existed, what the financial condition of the complainant was, and what reasons, if any, he gave for refusing or neglecting to pay the claim, but which would contain merely the naked statement that the claim had been placed in the hands of an attorney for collection. Such a letter surely would have the effect of causing not a merely capricious disturbance in the mind of the person receiving it, but a substantial fear that he might or would be placed in an unjust and unfair position before a large number of merchants. The intent of the defendant is to be gathered, not from his mental operations, but from the purpose and effect of the letter, and that intent was to harass and annoy the complainant to an extent which would result in the payment of the claim. The defendant may have had the right to inform the members of his association, by a fair notice, of the facts relating to the claim in question; but his threat to the complainant to send to the members of his association a notice that the claim had been placed in the hands of an attorney for collection could have had no purpose or effect other than to annoy the complainant, and thereby seek to compel the payment of this claim. No other conclusion can be drawn from the undisputed facts as disclosed in this case. Almost any merchant would prefer to pay a claim of $15, however unjust, rather than be compelled to explain and counteract a statement sent to a large number of persons that it was necessary to begin suit against him for so small a sum of money. And, as was found by Mr. Magistrate Breen, if the effect of such a letter is not to cause annoyance, we fail to understand what kind of a letter would do so.
The letter clearly comes within the prohibition of the statute, and the defendant is guilty of the misdemeanor charged.
HOLBROOK, P. J., concurs. WYATT, J., dissents.
ADAMS, Appellant, v. POTTER et al., Re- about the law in the last 10 or 12 years," havspondents. (Supreme Court, Appellate Division, ing suffered judgment in an action brought Third Department. December 1, 1903.) AC- against him by a former counsel, betook himtion by William Adams against Fred E. Pot- self for aid in preparing his case on appeal to ter and Jacob Sauter, doing business as the another attorney in the law, and with him Roseville Mining & Paint Company. No opin- made a bargain concerning compensation for ion. Judgment and order of the county court specified services. For these he paid upo
n renaffirmed, with costs.
dition according to the terms bargained; but
for other services he refused to pay, calling ALLABEN, Respondent, v. KITTLE et al.,
them valueless and of no use to him. The eviAppellants. (Supreme Court, Appellate Divi
di dence really relevant to the direct issue of serysion, Third Department. November 11, 1903.)
ices and their value occupies but a modicum of Action by Charles S. Allaben, administrator
the case on appeal, tediously swollen with matwith the will annexed of Orson M. Allaben, de
ter extraneous to the controversy, and indicatceased, against Emily Kittle and Willard E.
ing anew that an amateur practitioner at the Kittle. No opinion. Judgment unanimously
bar should heed, and be held to heed, the first affirmed, with costs.
section, relating to appearances in court, in the
statute of procedure, declaring that a party ALLEN, Respondent, v. HOME BANK, Ap
prosecuting or defending in person is amenable pellant, et al. (Supreme Court, Appellate Divi
to each provision of the act wherein the atsion, First Department. November 13, 1903.)
torney for a party is mentioned, unless therein
otherwise prescribed, or manifestly repugnant Action by Aaron C. Allen against the Home Bank and others. From a judgment for plain
to the context. The defendant and his case
were entertained with seriousness and leniency tiff, and an order denying a new trial, defendant bank appeals. Reversed. John M. Bowers, for
throughout by the learned trial justice, who appellant. Herman Aaron, forrespondent.
| fairly submitted all matters offered, with a Richard H. Mitchell, for defendant Allen.
charge of unusual fullness, to the jury, whose
verdict is not to be disregarded for merely PER CURIAM. For the reasons stated in multifarious criticism, supported by no tenable the opinion in Allen v. Corn Exchange Bank | objection and exception. Judgment affirmed, (decided herewith) 84 N. Y. Supp. 1001, the with costs to the respondent. All concur. judgment and order must be reversed and a new trial ordered with costs to appellant to abide the event.
ARLINGTON CO., Appellant, v. COLONIAL ASSUR. CO., Respondent. (Supreme Court,
Appellate Division, First Department. October AMERICAN PUBLISHERS' CORP. v. l
| 23, 1903.) Action ty the Arlington Company MUNRO et al. (Supreme Court, Appellate
against the Colonial Assurance Company. Division, First Department. November 13, George Richards, for appellant. W. B. Ellison, 1903.) Action by American Publishers' Cor- for respondent. No opinion, Judgment affirmporation against George W. Munro and others. I ed. with costs. No opinion. Motion granted, so far as to dismiss appeal, with $10 costs.
ARTHUR, Respondent, V. SIRE, Appellant. In re ANDERSON. (Supreme Court. AD! (Supreme Court, Appellate Division, First Depellate Division, First Department.
October | partment. November 20, 1903.) Action by
October | pa 23, 1903.) In the matter of Julia A. Anderson.
Daniel V. Arthur against Henry B. Sire. F. William H. Corbin, for appellant. Albin E.
Bien, for appellant. W. A. Keener, for reD. Motion
tion spondent. No opinion. Order affirmed, with granted.
$10 costs and disbursements. ANDERSON, Respondent, V. STEINSON,
AYER et al., Appellants, V. DAVIS, Re Appellant. (Supreme Court.' Appellate Term. Ispondent. (Supreme Court, Appellate Division, June 22, 1903.) Action by Harry A. Anderson
First Department. November 6, 1903.) Action against George Steinson. From a judgment in
by J. Morris Ayer and others against Owen favor of plaintiff, defendant appeals. Affirmed.
Davis. H. B. Culver, for appellants. B. TusGeorge Steinman, for appellant. Harry A.
ka, for respondent. Anderson, pro se.
PER CURIAM. Order affirmed, with $10 MacLEAN, J. The right of every man to
costs and disbursements. be his own lawyer is not to be abridged. As INGRAHAM and LAUGHLIN, JJ., dissent. little is it to be abused. In this action the defendant, a schoolmaster, but otherwise a lay- BACHMAN BREWING CO. V. WALLOman, "not being a lawyer in the sense of being | WITZ. (Supreme Court, Appellate Division, admitted to the bar, but knowing a great deal | Second Department. October 22, 1903.) AC
Anderson, for respondent
and 118 New York State Reporter tion by the Bachman Brewing Company against, by George D. Beattys, as trustee in bankruptcy, Fanny Wallowitz. No opinion. Default open-etc., against Milnor Wiley. No opinion. Judged, and case submitted.
ment and order atfirmed, with costs. BALDERMAN. Respondent. v. METRO- BEATTYS, Respondent, v. WILEY, AppelPOLITAN ST. RY, CO., Appellant. (Supreme lant. (Supreme Court, Appellate Division, See Court, Appellate Term.' November 6, 1903.) ond Department. November 20, 1903.) ACAction by Emil Balderman against the Metro- tion by George D. Beattys, as trustee in bankpolitan Street Railway Company. From a ruptcy, etc., against Wilfred Wiley. No opinjudgment for plaintiff, and from an order deny ion. Judgment and order affirmed, with costs. ing a motion for a new trial, defendant appeals. Affirmed. H. A. Robinson (Arthur K. Wing BEERS, Appellant, v. WASHBOND et al., and F. Angelo Gaynor, of counsel), for appel- Respondents. (Supreme Court, Appellate Divilant. Droege & Schavrin, for respondent. sion, Third Department. November 17, 1903.)
BLANCHARD, J. We do not think the ver- | Action by Ada Beers against Henry Havens dict is grossly against the weight of evidence, Wa
Washbond and others. No opinion. Motion denor even that it preponderates in favor of the defendant. The case was fairly submitted to the jury by the learned trial court, and the jury
BENJAMIN, Appellant, V. PALMIERI et resolved the conflict in the evidence in favor al.. Respondents. (Supreme Court, Appellate of the plaintiff. As there is evidence to sustain Division, Second Department. November 20. the verdict, we do not think it should be disturbed. The judgment and order must be af- | John Palmieri and another. No opinion. Judg.
1903.) Action by Aaron Benjamin against firmed, with costs. All concur.
ment of the Municipal Court affirmed bv de.
fault, with costs. BALL, Appellant, V. MANHATTAN RY. CO., Respondent._ (Supreme Court, Appellate BENNETT. Respondent, v. GEORGE Division. First Department. November 20, | BORGFELDT & CO.. Appellant. (Supreme 1903.) Action by John 0. Ball against the Court Appellate Division First Departer Manhattan Railway Company. H. A. Forster, | November 6. 1903.) Action by Clarence H.
ent. | Bennett against George Borgfeldt & Co. L. No opinion. Judgment affirmed, with costs.
S. Carrère, for appellant. A. S. Bacon, for
respondent. No opinion. Judgment and order BAMBERGER, Respondent, V. ZECKEN- affirmed, with costs. DORF et al., Appellants. (Supreme Court, Appellate Division, Second Department. Novem BERG, Respondent, v. THIRD AVE. R. ber 13, 1903.) Action by Ira Leo Bamberger Co., Appellant. (Supreme Court, Appellate against Arthur W. Zeckendorf and others. No Division, First Department. November 6, opinion. Judgment and order of the Municipal 1903.) Action by Fannie Berg against the Court affirmed, with costs.
Third Avenue Railroad Company. B. Hames,
for appellant. L. A. Jaffer, for respondent. In re BANKS. (Supreme Court, Appellate PER CURIAM. Judgment and order affirmDivision, Fourth Department. October 27, ed, with costs. 1903.) In the matter of the probate of the last HATCH, J., dissents. will and testament of Leonora Post Banks, deceased.
BESANT V. GLENS FALLS INS. CO. (SuPER CURIAM. Decree of Surrogate's preme Court, Appellate Division, Third DepartCourt affirmed, with costs.
ment. November 11, 1903.) Action by Joseph STOVER, J., not voting.
B. Besant against the Glens Falls Insurance
Company. No opinion, Motion denied on the BARSON et al., Appellants, v. MULLIGAN ground of laches. et al., Respondents. (Supreme Court, Appellate Division, First Department. October 16, 1903.) B. GORTZ MFG. CO., Respondent, v. Action by William G. Barson and others against PARKS. Appellant. (Supreme Court, AppelAgnes K. M. Mulligan and others. No opinion.
late Term. November 6, 1903.) Action by the Motion denied.
B. Gortz Manufacturing Company against Wil
liam A. Parks. From a judgment for plaintiff, BARTLETT, Appellant, v. BARTLETT, and from an order denying a new trial, defendRespondent. (Supreme Court, Appellate Divi ant appeals. Affirmed. Johnson & Higgins, sion, First Department. April Term, 1903.) for appellant. Phillips & Arery, for respondAction by Walter Bartlett against Mary Bart ent. lett.
BLANCHARD, J. It is clear, from the eviPER CURIAM. Order modified, as directed dence, that the parties to the written agreement in opinion, and, as modified, affirmed, without upon which this action was brought intended costs. [Nothing for publication in this case.) that that instrument should relate to the prior =
contract made by the plaintiff with Teichman BEATTYS, Respondent, Y. WILEY, Appel- & Potter, and that the insertion of the word lant. (Supreme Court, Appellate Division, Sec- "Company" in the agreement was due to cleriond Department. November 20, 1903.) Action cal error or mistake. On this point nothing
need be added to the opinion of the court at the PER CURIAM. Judgment affirmed, with trial. The judgment must therefore be affirmed, costs, upon opinion of ANDREWS, J., delivered with costs. All concur.
at Special Term. 65 N. Y. Supp. 621.
SPRING and STOVER, JJ., dissent. BISCHOFF, Appellant, v. BISCHOFF, Respondent. (Supreme Court, Appellate Division, BRADY V. KENNEDY et al. (Supreme Second Department. November 25, 1903.) AC-Court, Appellate Division, First Department. tion by Franklin J. Bischoff against Henry November 6. 1903.) Action by William A. Bischoff. No opinion. Order to make com- Brady against James C. Kennedy and others. plaint more definite and certain modified, by No opinion. Motion to dismiss appeal denied. striking out so much of the order as vacates the complaint, and, as thus modified, affirmed, BRADY V. KENNEDY et al. (Supreme without costs of this appeal to either party. Court, Appellate Division, First Department.
November 6, 1903.) Action by William A. In re BOARD OF EDUCATION. (Supreme Brady against James C. Kennedy and others. Court, Appellate Division, First Department. No opinion. Motion for leave to withdraw October 16, 1903.) In the matter of the Board appeal granted, upon payment of $10 costs. of Education. No opinion. Notice of this application must be given to Charles A. and BRANTINGHAM, Appellant, V. PRENEleanor Hopfensack.
TICE et al., Respondents. (Supreme Court,
Appellate Division, Second Department. OcIn re BOARD OF RAPID TRANSIT R. tober 22, 1903.) Action by May Thorne BrantCOM'RS. (Supreme Court. Appellate Division, / ingham against William P. Prentice and the First Department. November 13, 1903.) In Printing Telegraph News Company. No opinthe matter of the Board of Rapid Transit Rail- ion. Appeal withdrawn by consent of the parroad Commissioners. No opinion. Motion
BRENDEL, Respondent, v. BURGWARDT, BOEHMER, Respondent, V. KIRCHNER
KIRCHNER Appellant. (Supreme Court, Appellate Division, et al., Appellants. (Supreme Court, Appellate
Fourth Department. November 17, 1903.) ACDivision, Second Department. November 20,
tion by George J. Brendel against Fred C. 1903.) Action by Arthur Boehmer against Al
Burgwardt. No opinion. Judgment affirmed, bin Kirchner and Charlotte Kirchner. No opin
with costs. ion. Judgment of the Municipal Court affirmed, with costs.
BRENNAN, Respondent, v. CITY OF NEW YORK, Appellant. (Supreme Court, Appellate
Division, Second Department. October 22, BOICE. Respondent, V. JONES, et al., Ap- 1903.) Action by Michael Brennan against the pellants. (Supreme Court, Appellate Division, city of New York. No opinion. Judgment of First Department. October 16, 1903.) Action
the Municipal Court affirmed, with costs. by Hewitt Boice against Percival S. Jones and others. No opinion. Motion denied, with $10 BRIGGS, Appellant, v. DEVOE, Respondcosts.
ent. (Supreme Court, Appellate Division,
Third Department. December 1, 1903.) ACIn re BOMMER. (Supreme Court, Appellate tion by Henry F. Briggs against Daniel I. Division, Fourth Department. October 27, Devoe, as executor, etc. No opinion. Judg1903.) In the application of Ferdinand J. Bom- ment unanimously affirmed, with costs. mer for admission to practice. PER CURIAM. Ordered, that the applica
BRIGHTSON, Respondent, v. H. B. CLAF
LIN CO., Appellant. (Supreme Court, Appeltion of said Ferdinand J. Bommer for admission to the bar be granted, but that said applicant
late Division, Second Department. October 22,
1903.) Action by George E. Brightson against be not allowed to take the oath of office of at
the H. B. Claflin Company. No opinion. Motorney and counselor until the January, 1904,
tion for leave to appeal to the Court of Appeals term of this court.
granted. WILLIAMS, J., dissents. STOVER, J., not voting.
BROADWAY TRUST CO., Respondent, v.
HART, Appellant. (Supreme Court, Appellate BOYD v. UNITED STATES MORTGAGE
Division, First Department. November 6, & TRUST CO. (Supreme Court, Appellate
1903.) Action by the Broadway Trust Company Division, First Department. November 6,
against Max Hart, alias Max Hertz, M. D. 1903.) Action by Julia S. Boyd against the
Steuer, for appellant. I. L. Bamberger, for United States Mortgage & Trust Company. respondent. No opinion. Order affirmed, with No opinion. Motion denied, with $10 costs.
$10 costs and disbursements. BRADY, Appellant, v. BRADY et al., Re- BROOKLYN WAREHOUSE & DRY spondents. (Supreme Court, Appellate Divi- DOCK CO., Respondent, V. BROOKLYN sion, Fourth Department. November 17, 1903.) DOCK & TÉRMINAL CO., Appellant. (SuAction by Anna Brady against Mary Brady preme Court, Appellate Division, Second Deand others.
I partment. November 13, 1903.) Action by the