117 N.Y.S. 845 | N.Y. App. Div. | 1909
The defendant, who was a member of the bar, was convicted under the second count of the indictment which charged him with uttering as- true a. certain forged instrument purporting to be the act of Julia A. Smith, by which certain rights and interests in real property purported to be transferred, conveyed and affected, setting out the instrument, a satisfaction of a mortgage, in full, and the indictment proceeded : “ And to which forged instrument there was then and there attached and annexed a certain other instrument and writing which was then and there as follows, that is to say: ‘State of New York, City of New York, ss.: On this fourteenth
On the 15th of March, 1904, the defendant received $25,000 in discharge of the mortgage, and delivered the satisfaction piece with its acknowledgment, set forth in the indictment. He deposited this, sum to his own account in his own bank, and subsequently spent all of it for his own purposes. He had never had any conversation whatever with Miss Smith in regard to the extension or the payment of
Silverberg, the notary who took this -acknowledgment, testified that he knew Miss Julia A. Smith; that the first time that he saw her was in the district attorney’s office in 1904; that she did not acknowledge to him that the name Julia A. Smith on the satisfaction of the mortgage was executed by her; that on the day that he signed the instrument as commissioner of deeds he did not know her at all; that he did not on the fourteenth of March or on any other day take the acknowledgment of Julia A. Smith over the telephone of Victor Shanley. On being asked where he had taken the acknowledgment he said: “I am not sure; I think in 14th street, in a cigar store. My best recollection is that Mr. Shanley introduced me to a lady, Miss Smith, and I took her acknowledgment of the paper. I had never met that woman before, not to my recob.
Hiss Smith positively denied that the defendant called her up on the 14th of March, 1904,. and asked her to give her acknowledgment over the telephone to some person who would take the wire.
The defendant having admitted that he signed the name Julia A. Smith to the satisfaction of the mortgage> and having attempted to justify the acknowledgment by his story of a telephonic acknowledgment to Silverberg, now seeks to justify this transaction upon the ground that hq was acting under a power of attorney. That power is dated and acknowledged the 4th of June, 1903, which was at the time that Miss Smith’s claims upon- her grandfather’s estate were in process of adjustment through the North American Trust Company, and the paper reads as follows: “ Know all men by these presents, that I, Julia A. Smith, at present residing at No. 202. Schermerhorn Street, Borough of Brooklyn, City of New York, have made, constituted and appointed, and by these presents do make, constitute and appoint Victor Shanley, of 320 Broadway, Borough of Manhattan, City of New York, my true and lawful attorney for me and in my name, place and stead to take and receive all moneys, stocks, bonds, bonds and mortgages or other certificates of indebtedness that may now or hereafter be directed to be paid to me. by order of court or otherwise, or that may now or hereafter be placed to my credit in the North American Trust Company of 135' .Broadway, Borough of Manhattan, City of New York, and to do and perform, with such money, stocks, bonds, mortgages and certificates, any and all acts that I might myself perform and to take any and all steps that he, my attorney, may deem best for the protection ,of my interests, and I further constitute the said Victor Shanley my attorney to sign' my name and to make withdrawals and-deposits in my place and stead, giving and granting unto my said attorney full power and authority to do and .perform all and every act and thing whatsoever and requisite and necessary to be done in and about the premises as fully to all intents and purposes as I might or could do if personally present, with full, power of substitution and revocation, hereby ratifying and confirming all that
It will be seen that that paper gave the defendant authority to receive moneys, stocks, etc., “ that may now or hereafter be directed to be paid to me by order of court or otherwise, and that may now or hereafter be placed to my credit in the North American Trust Company, * * * to sign my name and to make withdrawals and deposits in my place and stead * * * and * * * to do and perform all and every act and thing whatsoever and requisite and necessary to be done in and about the premises.”
The defendant testified about the power of attorney as follows: ‘•'In the early part of June, 1903, we thought that Miss Smith’s grandfather’s estate would be settled at any time at all. Miss Smith generally went away for the summer and at that [time] she was about to go to Elmira to visit my sister-in-law. I said to her, ‘ Julia, if you go a distance away I may have to sign some papers for you, and it will necessitate your returning from Elmira unless you . give me a power of attorney % ’ She said, ‘ All right, you can have a power of attorney,’ and I prepared one. * * * After the power of attorney was given me by Julia A. Smith, I did not do anything with it at that time. That was previous to the time the Smith estate was settled. I went down to the North American Trust Company in reference to the settlement, and talking the matter over with them I told them I had a power of attorney and wanted to know if that would be suffibient for them, or authority for them to deliver the estate to me. They said no, they would rather have Miss Smith come personally. * * * After the settlement of the estate I received a communication from the North American Trust Company that there were some dividends there that had accrued subsequent to' the settlement of the estate, and while the stock certificates were still in the name of the North American Trust Company, before they were transferred to Miss Smith’s name, and I went down to see them about that. I saw Mr. Holten then. He told me that he thought that my connection with the estate * * * ceased at the time of the settlement. I said I have a power of attorney, or I have authority from Miss Smith to collect all her divi
Under cross-examination: “No one at the Trust Company had told me at that time that it was necessary to get a power of attorney. * * * I thought it was necessary to get a power of attorney from JuliaBmith because she always went away from the city during the summer months. * * * The procurement of this power of attorney was for the purpose of enabling me to receive the physical custody of her share of the property from the North American Trust Company. Before I drew this power of attorney I intended drawing a power of attorney to use after the estate had been distributed to Miss Smith. * * .* Q. So you had two purposes in drawing this'power of attorney,-namely, to get the property, and then authority to act in connection with it thereafter ? A. It was to do everything that I should do for her in connection with her affairs, yes. Q. You intendéd to. ha ve this instrument in order that in the. future! you should act under it 8 A. That I could act for her, yes. Q. If you proposed to act in the future pnder that power of attorney, and by virtue of it, why did you leave it with my client’s papers: in the North American Trust Company instead of retaining it'or at least a copy of it to' show your authority 8 A. I d'id not leave it with my client’s papers in the North American Trust Company. * * *- I filed it with the North American Trust Company to obtain the dividends that she was entitled to. * * * I filed it after1 I had received word from the Trust Company that dividends had accrued on stock certificates then owned by Miss Smith but which were in the name of the Trust Company and had. not been transferred to the name of Miss Smith.”
Then referring to the acknowledgment of the satisfaction of the mortgage he gave this testimony : “ Was there any reason why Julia A. Smith should not be summoned to your office to execute the satisfaction-piece herself 8 * * * A. There was no reason. Q. Why did not you send for' her ? A, I did telephone to her, I told her—I
The learned trial court submitted the questions in a charge extremely favorable to the defendant. Among other things, and at the request of the defendant, he charged: “If the jury find that the defendant believed that he had legal authority to sign the name of Julia A. Smith to the instrument in question, then his act is not forgery. “ * If the jury find that the defendant abused the authority conferred upon him by Julia A. Smith, such abuse of authority does not constitute foz’gei’y, even though it. might, under some circumstances constitute fraud. * * * In determining the power and authority of the defendant in respect to the business entrusted to him by the complainant, the jury is not bound to consider the power of attorney alone, but may also consider the manner in which the parties actually conducted their business and the manner in which they customarily acted toward each other as well as the practice they had of collecting the income and depositing the same, and also all circumstances in connection. * * * If the jury find that the defendant executed the satisfaction piece believing that the power of attorney conferred upon him the right so to do, then he must be acquitted, even if the jury are convinced that he subsequently or at a later time appropriated the money i-eceived therefor to himself. * * * If the jury find that Julia A. Smith execzzted the power of attorney inti’oduced in evidence and that the defendant signed her name thereto pnz-suant to such authority, or with the belief that it conferred upon him the authority to do so, then the defendant must be acquitted. * * ' * If the defendant
It was a question of fact, under the circumstances of this case, whether the defendant did act under this power of attorney, irrespective of the question whether as matter of law it conferred upon . him authority to do what he did do. And as matter of law, in my opinion, said power of attorney was not authority for the execution and delivery of the satisfaction of the mortgage ■ and the acknowledgment thereto -set forth in the indictment. The whole instru- - ment was a forgery; it purported to be what it was not, viz., the personal act of Julia A. Smith in both signing and appearing personally before the commissioner of deeds and acknowledging her signature to an instrument which affected real estate., One of the definitions of
We have carefully examined the record and find no errors therein sufficient to disturb the judgment. The rights of the defendant were carefully guarded; he had a fair trial; and the verdict of the jury is fully sustained by the evidence.
The judgment appealed from is affirmed.
Ingeaham, McLaughlin, LaughLin and Scott, JJ., concurred.
Judgment and order affirmed.