The Albany Law Journal. ALBANY, APRIL 11, 1896. Current Topics. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] PERHAPS prevented from bringing testimony to disprove his charge that Mrs. Kitson had been untrue to her husband, although he declared in court his belief that she must have been unchaste, or that unless she had seen her husband within three months of the time of the examination in question, it was certain that she had been unfaithful. Mrs. Kitson was examined while under the influence of chloroform and her testimony was very pathetic, that just after she had awakened from the influence of the chloroform she heard Dr. Playfair speak to his assistant as if she were guilty. Dr. Playfair admitted that he submitted his evidence of her alleged guilt to the pathologist of the hospital immediately after the examination, and this was accepted as evidence of a premeditated intention to ruin the unfortunate woman. Mrs. Kitson not only testified as to her own innocence, but her husband, who was in court, declared his conviction that she was honest. Her counsel pointed out that if she were guilty she would hardly have asked a member of the family to examine her, and also that upon the promise by Sir James Kitson of a continuance of her allowance if she would leave for Australia, she rather preferred to force the matter publicly than to submit to the unjust imputation made upon her honor. Dr. Playfair gave as an excuse for telling his wife, that he wanted to save her and his daughters from contamination, but it was shown that if such no case for some time has created such general discussion and interest as was aroused by the verdict in Kitson v. Playfair, which has so stirred up all classes of English society and has been a matter of much comment in America. In spite of the some what unsavory details the suit has been discussed with extraordinary vehemence, particularly by the members of the gentler sex, who are unanimously, it would appear, against the defendant, Dr. Playfair. Dr. Playfair has been a famous obstetrician of London society, with a large professional income, and it would seem as if the verdict against him of $60,000, probably the largest verdict ever given by an English jury in a libel suit, will be but a small portion of the penalty he must suffer, because his practice will inevitably dwindle to the vanishing point. It also seems that society is greatly exercised because the jury did not bring in damages against Sir William Broadbert and Sir John Williams, two other well known gynecologists, because they testified that, in their opin-was desired his wife could have prevented such ion, Dr. Playfair acted properly under the circumstances in his alleged betrayal of his patient's secrets. This position of society seems to be rather peculiar. Mrs. Kitson, whose husband is Mrs. Playfair's brother, seems not to have found general favor with her husband's family on her arrival in England from Australia, where she was married. This was, without doubt, the main point with the jury in declaring Dr. Playfair's actions malicious. The fact was also proved that Sir James Kitson revoked his allowance made to her after Dr. Playfair reported to him through Mrs. Playfair what he found upon the examination. This fact also un contact by instructing her servants that she was never "at home" to Mrs. Kitson. Extremely pathetic letters to Dr. Playfair from Mrs. Kitson were read in court pleading for leniency, and, it may be added, rather pointing to guilt, as did nearly all of the expert evidence introduced. One expert only testified that Mrs. Kitson's condition at the time of the examination was, according to some cases cited, consistent with honesty. The question of her guilt or honesty is, however, of little importance so far as the public generally are concerned and so far as the question of libel is to be considered, for while a physician under oath in a criminal case may possibly be excused for dedoubtedly influenced the jury and aided to in-claring his candid convictions to serve some crease the amount of the verdict rendered. Dr. Playfair, it is true, did not plead or set up in defense justification and was on this account VOL. 53 No. 15. great end of justice, yet it is universally held by the courts, and it was so admitted by Mr. Justice Hawkins, before whom the case was tried, that to leave to the discretion of the physician saloon, restaurant or other place within prohito reveal such secrets would be to imperil the bition hours and without a license or tax cerfoundations of society. A patient's life often tificate. However much may be written by depends upon the accuracy of the statements distinguished judges of the Court of Appeals in made to the attending physician; and in point regard to clubs formed for literary or social of law it is considered that such communica- purposes, we well know that the buildings are tions are confidential and privileged. Besides generally used by the members thereof much in the judge's charge and the jury's momentous the same manner that other people use saloons, verdict the case has a peculiar interest for law-restaurants and other places where liquors are yers because it calls attention to the fact that sold. The general principle that the sale of communication from clients should be more liquors on Sunday is against public policy and zealously guarded than they many times are. may be regulated and prohibited by the State This case will doubtless prove of tremenduous Legislature, applies with equal force to a club interest before its final adjudication by the appellate courts. The publication in this journal of the opinion of the Court of Appeals in the case of The People v. Adelphi Club, is made in full because it involves serious and momentous questions under the law recently repealed and superseded by the Liquor Tax Law, under which we are now proceeding. The opinion of the court ist practically to the effect that clubs do not come within the provisions of the excise law, and that the distribution of liquors to members of a club who own the liquors is not in any way within the provisions of the law of this State which requires such associations to take out license. The effect of this decision on the excise law is of little value, and we do not think that it particularly affects the Liquor Tax Law, for in that law it is certain that express mention is made of "associations which traffic with their members only." Under section 2 of the Liquor Tax Act we find that the term "trafficking in liquors" is defined, and also the word "association," while in section 24 it is expressly provided that an association which traffics in liquor with its members only may traffic in liquors within 200 feet of a church or school house on the same street or avenue, provided, they occupied the building prior to the passage of the act or had a building in process of construction at that time. There are many other provisions of the law which expressly include clubs, although the word is not used anywhere in the law. We firmly believe that clubs should be included within the prohibitions imposed upon the public at large, and we consider that there is no more right to sell liquor within the confines of club than within the confines of a as well as to a saloon. The Court of Appeals decided most properly that clubs come within the purview of the excise law; but we have been commenting on the general policy of putting the club in the same category as the saloon and not discriminating in favor of either one. And we consider that for the reasons we have given, clubs are amenable under the Liquor Tax Act. The court holds that the excise statute just superseded did not apply to clubs. The law now in force was not under consideration, and hence was not passed upon. The statute of 1892 is held not to have extended to clubs, because, first, it contained no provision for granting licenses to them, and, second, a distribution of liquors by a club among its members could not be regarded as a sale of liquor prohibited by the statute. The only difference between the old and the new law on the points on which the decision turned is that the former did not provide for licensing clubs, while the provisions of the latter are broad and general enough to include club licenses. Clubs, however, are not mentioned or specifically designated in the Raines law. The intention of the framer avowedly was to include them with saloons, hotels, restaurants, and the terms of the statute are broad enough to include them. But the effect of a law is to be determined not from what the framer says was intended, but from a reading of the statute itself, and in this instance a court must have some better reason for extending the stern prohibition and penalties of the law to clubs than the mere fact that the terms of the act are loose enough to include them. Clubs have never been subject to excise invasion and regulation in this State, and a law cannot be construed in making a radical departure in the policy of the State toward them without a clearly expressed declaration to that effect. The corner stone of the opinion rendered by the Court of Appeals yesterday, is the conclusion that the serving of beverages in a club was not liquor traffic such as the statute of 1892 was designed to regulate. What Judge Haight says on this point is: The defendant is a social, club, organized under the statute for a legitimate purpose to which the furnishing of liquors to its members is merely incidental, and is not unlike the supplying of dinners or articles which the member may desire for his own entertainment. The defendant has a limited and selected membership, and, while the property and supplies are technically owned by the club, each member is in equity an equal owner in common. It is not organized for the purpose of engaging in a business for profit or for the traffic in liquors. It engages in no business other than that which pertains to maintenance of its library, reading rooms and the social inter course and comfort of its members. Liquors, as well as other supplies, are distributed to its members upon the written order of the member at a price fixed by the officers of the club designed to cover the purchase price and disbursements in serving. These orders pass to the steward or treasurer of the club and are charged against the member, who settles therefore monthly. plaint whether the promise upon which the action was brought was oral or written, if the defendant has not set up the Statute of Frauds in his answer, he must be deemed to have waived any defense based upon that statute, and further, that unless the statute is pleaded, objection made by the defendant upon the trial to verbal proof of the contract under the statute will not avail. The decision which it was thought was somewhat extended by this decision is that of Crane v. Powell, 139 N. Y. 379, where Judge O'Brien, in writing the opinion of the court, says on this point: "The Statute of Frauds is a shield which a party may use or not for his protection, just as he may use the Statute of Limitations, the statute against usury, that against betting and gaming, and others that might be mentioned. I take it to be a general rule of universal application that the statutes last mentioned are not available to a party unless specifically pleaded, and there is no reason for making the Statute of Frauds an exception to the rule. The present system of proceedure is founded upon the idea that litigants should, when possible, know in advance the precise questions they must meet at the trial. When a contract is set out in the complaint as the cause of ac tion, and the defendant intends to assail it on some special or statutory ground, the general spirit of the system is not complied with unless notice is given of this intention to the opposing party by the pleadings. In the solution of this question the provisions of the Code should not be overlooked. The statute may be used as a defense to actions on certain agreements. A defense must now be presented either by demurrer or answer (Code, section 487). When the defect in the plaintiff's cause of action appears on the face of the complaint the defense must be interposed by demurrer (section 488). When the complaint does not, as in this case, disclose an invalid agreement upon its face, but it is, in fact, invalid for some reason, the defendant must take the objection by answer (section 498); and if the objection is not taken in either way the defendant is deemed to have waived it (section 499). The conclusion is thus reached that the defendant waived the benefit of the statute in this case by omitting to plead it." The case of Honsinger v. Mulford, however, sites upon which this struggle took place? Can seems to hold a doctrine which is not usually it not erect the monuments provided for by accepted, namely, that a complaint is demurr- these acts of Congress, or even take possession able if it alleges a contract which is within the of the field of battle, in the name and for the statute of frauds. We believe, however, that benefit of all the citizens of the country, for the learned court simply intended to hold that the present and for the future? Such a use in the case where the contract is within the seems necessarily not only a public use, but one statute and the complaint is demurrable, that so closely connected with the welfare of the the proper proceeding is not to set up the stat-republic itself as to be within the powers ute of frauds in the answer, but rather to demur to the complaint for reasons beyond the fact that the contract is within the statute. It is generally interesting to watch the opin ions of the courts in construing certain sections of the United States Constitution. A case was recently decided by the Federal Supreme Court, United States v. Gettysburg Electric Ry. Co., which undoubtedly gives adequate demonstration of the so-called elasticity of the Constitution. The part of the Constitution to which we have referred to is commonly called in ordinary parlance the "general welfare" clause, and in the particular case under discussion the court held that Congress may condemn the site of the battle of Gettysburg, for the purpose of preserving it and erecting monuments and tablets to indicate the positions of the various military bodies at the battle. Mr. Justice Peckham, the junior member of the court, read the opinion, part of which is as follows: "The end to be attained, by this proposed use, as provided for by the act of Congress, is legitimate, and lies within the scope of the Constitution. The battle of Gettysburg was one of the great battles of the world. The numbers contained in the opposing armies were great; the sacrifice of life was dreadful; while the bravery and, indeed, heroism, displayed by both contending forces, rank with the highest exhibition of those qualities ever made by man. The importance of the issue involved in the contest of which this great battle was a part cannot be overestimated. The existence of the government itself, and the perpetuity of our institutions, depended upon the result. Valuable lessons in the art of war can now be learned from an examination of this great battlefield, in connection with the history of the events which there took place. Can it be that the government is without power to preserve the land, and properly mark out the various granted Congress by the Constitution for the purpose of protecting and preserving the whole country. It would be a great object-lesson to all who looked upon the land thus cared for, and it would show a proper recognition of the great things that were done there on those momentous days. By this use the government manifests for the benefit of all its citizens the value put upon the services and exertions of the citizen soldiers of that period. Their successful effort to preserve the integrity and solidarity of the great republic of modern times is forcibly impressed upon every one who looks over the field. The value of the sacrifices then freely made is rendered plainer and more durable by the fact that the government of the United States, through its representatives in Congress assembled, appreciates and endeavors to perpetuate it by this most suitable recognition. Such action on the part of Congress touches the heart, and comes home to the imagination of every citizen, and greatly tends to enhance his love and respect for those institutions for which these heroic sacrifices were made. The greater the love of the citizen for the institutions of his country, the greater is the dependence properly to be placed upon him for their defense in time of necessity, and it is to such men that the country must look for its safety. The institutions of our country, which were saved at this enormous expenditure of life and property, ought to and will be regarded with proportionate affection. Here upon this battlefield is one of the proofs of that expenditure, and the sacrifices are rendered more obvious and more easily appreciated when such a battlefield is preserved by the government at the public expense. The right to take land for cemeteries for the burial of the deceased soldiers of the country rests on the same footing, and is connected with, and and springs from, the same powers of the Constitution. It seems very clear that the govern ment has the right to bury its own soldiers, and to see to it that their graves shall not remain unknown or unhonored. No narrow view of the character of this proposed use should be taken. Its national character and importance, we think, are plain. The power to condemn for this purpose need not be plainly and unmistakably deduced from any one of the particularly specified powers. Any number of powers may be grouped together, and an inference from them all may be drawn that the power claimed has been conferred." The Court of Appeals has just decided a question upon which the lower courts of this State had not been able to agree. That question is whether a defendant is guilty of a contempt of court for interposing a false answer under oath in a civil suit, for the purpose of delaying the plaintiff, and actually delaying him in recovering his claim. The Code or Civil Procedure makes a party to a lawsuit punishable "for any deceit or abuse of a mandate or proceeding of the court." In March, 1894, Judge Alton B. Parker, sitting at a Special Term of the Supreme Court, held at Kingston, in Ulster county, decided that it was contempt, under this provision of the Code, for a litigant to put in a false verified answer, and thus impede the prosecution of the action. In May of the same year, Mr. Justice Lawrence, of New York, rendered a Special Term decision to the same effect. of contempt. "The fundamental and essential principle of a contempt," was declared to be "an affront to the authority of the Court; but a false pleading nowise challenges or disparages that authority any more than perjured testimony on the trial." It is an invariable rule that statutes defining contempts must be strictly construed, and are not to be extended by implication beyond their plain meaning. "This stringency of construction," says Judge Pryor, "is all the more applicable to an offence to a conviction of which neither an indictment, nor the verdict of a jury, nor common-law evidence is necessary, in a trial for which the accused is not confronted with the witnesses against him, nor allowed the inestimable privilege of crossexamination, nor protected by any of the legal safeguards of criminal justice, and upon sentence for which he may be confined in close custody for an indefinite period." After reading the conflicting opinions in the Common Pleas and the Supreme Court, it seems to us that the weight of the argument is in favor of the conclusion reached by the Court of Appeals to the effect that under the law of this State the interposition of a false answer, however deserving of punishment, does not constitute a contempt of court. But the Court of Appeals adopts an unfortunate tone in its reference to the adjudications in the courts below. "The Special Term decisions," says the opinion, "to which we have been referred, we deem to have been made without a proper or careful consideration of the matter." On the other hand, the New York Court of Now the chief of the decisions thus charCommon Pleas, in its General Term, or appel-acterized as the result of improper or careless late branch, consistently adhered to a concon- consideration, was written by Mr. Justice Partrary construction of the Code provision, ker, who sat for years in the Second Division of and repeatedly declared that the interposition the Court of Appeals, as an associate of Judge of a sham or false answer was not a contempt Haight and Judge Vann, who are now in the of court. The latest and ablest opinion of court. It is three times as long and in all rethat tribunal on the subject was delivered by spects as careful as the opinion of the Court of Judge Roger A. Pryor, in December, in the Appeals itself. Another of the decisions was case of Fromme v. Gray; and his view of the that of Judge Lawrence, to which we have law has been pronounced correct in the deci- already referred which was equally undesion just handed down by the Court of Appeals. serving of the fling in which the Court of The main point made by Judge Pryor was Appeals saw fit to indulge by using the language that while a sworn answer in a case might be we have quoted. It is a mistake for appellate regarded as a proceeding in court it was in no tribunals to be sarcastic or smart in criticising sense a proceeding of the court, such as was con- the work of the lower courts. There may be templated by the section of the Code treating occasions for severe comment, but these are |