The civil, political, professional and ecclesiastical history, and commercial and industrial record of the county of Kings and the city of Brooklyn, N. Y., from 1683 to 1884, Volume II, Part 161

Author: Stiles, Henry Reed, 1832-1909, ed
Publication date: 1884
Publisher: New York, W. W. Munsell & Co
Number of Pages: 1345

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Having decided to follow the profession of his father, he entered his office as a student at law, where he remained for two years; he completed his legal education in the office of the highly honored law firm of Kirkland & Bacon, of Utica, New York. Both these gentlemen still survive, illustrious examples of the beautiful old age which sometimes crowns the life of the active lawyer, the polished and erudite scholar.

No name is more frequently found in the legal reports of the State than that of Mr. Kirkland; the practitioner, the student and the judge, in consulting these reports, are convinced of the depth of Mr. Kirkland's learning, the erudition he has imparted to the books, and the wondrous extent of his practice; he is therefore one of the last survivors of the giants of the old Supreme Court, and the court of dernier ressort of the State of New York. Mr. Bacon was an honored member of the judiciary of the State, a Justice of the Supreme Court, a jurist of great purity of character, mature and practical learning, impartiality and courtesy. Such were Mr. Birdseye's legal preceptore.

On July 11th, 1844, he was called to the Bar, at a General Term of the Supreme Court held at Utica. The illustrious Samuel Nelson-afterwards a Justice of the Supreme Court of the United States-was then Chief Justice. Greene C. Bronson and Samuel Beardsley-names synonymous with judicial great- ness-were associate Justices. The Chief Justice, in admitting Mr. Birdseye to practice, congratulated him upon his accession to the Bar, of which his father was so long a conspicuous member. "Not only personally known to me," said the Chief Justice, " but he was my highly esteemed friend, and I have no doubt but you will follow in his honored footsteps."

During his student days, Mr. Birdseye decided to make Memphis, St. Louis or Chicago his future home; but, on due reflection, after receiving his license, he decided upon Albany, New York, as the place of his future residence. Accordingly, in October, 1844, he removed to that city and commenced his practice.

In 1846, he was married to Miss Catherine M. Baker, of Pompey, New York.

He entered at once into a very respectable and increasing prac- tice; in the meantime his honored preceptor, Mr. Kirkland, re- moved to New York City and resumed his practice there; in his removal to that city, he followed the example of such conspicuous names as Wm. Curtis Noyes, Luther R. Marsh, Wm. and Charles Tracy, and other leaders of the New York City Bar. Mr. Kirkland's accomplishments as a lawyer were at once re- coguized by the New York City Bar.

After his removal to New York, he invited Mr. Birdseye to become his law partner in that city; the invitation was accepted, and on the 1st of May, 1850, the firm of Kirkland & Birdseye opened an office and commenced business at 39 Wall street.

The wide and well-known standing of the head of the firm

secured from the beginning full and remunerative occupation. The fact that a brother of Mrs. Birdseye was then a resident of Brooklyn, induced Mr. Birdseye, in the spring of 1850, to be- come a resident of that city.

Early in July, 1856, Hon. Wm. Rockwell, a justice of the Supreme Court of the Second District, suddenly died, and Governor Clark immediately tendered the office to Mr. Birdseye, who, after considerable deliberation and hesitancy, accepted it. The salary of a justice of the Supreme Court was then only $2,500 per annum-not a very inviting remuneration for the labors and responsibilities of the office.

Of the other three judges of the district, Judge S. B. Strong resided at Setauket, Suffolk County; Judge Brown at Newburgh, and Judge Emott at Poughkeepsie. Judge Rockwell had been failing in health for some time prior to his decease; and the legal business of Brooklyn, then not small, and since so vastly increased in volume and amount, had fallen largely in arrears.

When he commenced the duties of his office, Judge Birdseye devoted himself to the clearing off these arrears. At the close of his term, on December 31, 1857, the calendars of the Circuit and Equity Term of Kings County had been cleared; the mo- tions at Chambers had been heard and decided; and since that time there has been no such accumulation of business as had before 1856 clogged the calendars of the court in that county.

At the fall election in 1857, Judge John A. Lott was nomi- nated by the Democratic party, and Judge Birdseye by the Repub- lican party, for the remaining four years of the unexpired term of Judge Rockwell. Judge Lott was elected by nearly the full majority then usual in that strongly Democratic district, and Judge Birdseye returned to practice in the city of New York.

Prior to his appointment, the firm had become Kirkland, Birdseye & Sommers, by the admission thereto of John B. Yates Sommers, Esq. On the dissolution of that firm by the retirement therefrom of Judge Birdseye, Henry W. Johnson, Esq., then of Albany, had joined Mr. Sommers. On leaving the Bench, Judge Birdseye became associated with them, under the style of Birdseye, Sommers & Johnson. That firm was dissolved in October, 1861, and Mr. Birdseye remained in practice without any associate until January, 1865, when he took into partnership Charles P. Crosby, Esq., formerly of Detroit, Mich. That asso- ciation continued until August, 1872, when it gave place to the firm of Birdseye, Cloyd & Bayliss, which has continued to the present time unchanged; except by the admission to the firm, but without change of name, of Mr. Clarence L. Birdseye, the son of the senior partner.

Judge Birdseye possesses many qualities which give success to the lawyer and the judge. To use the language of another: "Judge Birdseye, after leaving the Bench, was for several years very much occupied with the hearing of causes referred to him. Finding this class of engagement to interfere with his general practice, his declined to serve any longer as a Referee. Judge Birdseye is very rapid in thought, speech and action, and accomplishes a great amount of labor in a short time. He is gifted with a rare memory of facts, dates and principles, and is enabled to refer to the authorities with great facility."

The amount and importance of the litigation in which Judge Birdseye has been engaged, is a truthful and interesting history of his career at the Bar, and is a history which needs no other illustration; any intelligible account of them that would put the reader in possession of a knowledge of the vest interests involved in them, and the subtle points upon which they turn, would form the contents for a respectable volume, and a mere tabulated account of them would dwarf their interest. They, however, occupy a prominent place in legal history, reported among the cases adjudicated in the Supreme Court of the State, and in the Court of Appeals. There they will be found at length, and we commend them to the practitioner and to the legal student for the variety and importance of the legal principles involved in

Michester Britton

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them, many of which are original, standing as prominent prece- dents in legal learning. This brings us to say that the briefs of Judge Birdseye, many of which are wholly transferred to the reported cases, exhibit his industry, his comprehension and his analytic powers.

" A well prepared brief," said Lord Erskine, "is a better indi- cation of a good lawyer than a dozen speeches at the Bar; for, after all, out of a well-prepared brief comes an eloquent argu- ment." In speaking of the important cases conducted by Judge Birdseye as a lawyer, it is proper to add that many of his opin- ions delivered as a judge commend themselves to the profes- sion for the strength of their verbiage, condensation of reason, and unity with the philosophy of the law.

They exhibit a conscientious devotion to his judicial duties and an independent impartiality. For their history and a full understanding of his opinions, the reader is referred to the reported cases found in the 3rd, 4tli and 5thi volumes of Abbott's Pr. Rep., the 4th, 14th and 15th of Howard's Pr. Rep., and in the 24th to the 27th volumes of Barbour's Reports. " Many of them interpreting the Code on questions before unsettled, and some on questions of great general importance."

Among the cases conducted by Judge Birdseye, which will recall to the reader their history and importance without any amplification, were the cases of " Prouty, Boardman, Jermain and others v. The Michigan Southern and Northern Indiana R. R. Company," which, during the litigation, was consolidated with other corporations, to form the Lake Shore and Michigan Southern R. R. Company. Soon after Judge Birdseye was re- tained in this controversy, these companies passed under the control of Cornelius Vanderbilt, and of his son-in-law, a lawyer of great ingenuity and force.

"The claims for arrears of dividends on the preferred and guaranteed stock of the M. S. & N. I. R. R. Co. had been repeatedly presented, without success, both in New York and elsewhere: 13 Allen R. (Mass.), 400. Other like cases had arisen in other States, with like result. (Taft v. H., P. & F. R. R. Co., 8 R. I. Rep., 310.) The utmost resources of Commodore Van- derbilt and his powerful corporations were used in resisting these suits. Besides Mr. Clark and Mr. Augustus Schell, his associate in the company, there were employed in the defense, at various times, Samuel J. Tilden, James P. Sinnott, George Ticknor Curtis, Smith M. Weed, James Matthews, and others. The cases were many times in the General Term of the Supreme Court, and in the Court of Appeals. After much skirmishing, the cases were finally tried on their merits, as may be seen in 84 New York, 157; 85 New York, 272; 91 New York, 483. These fierce litigations extended over fourteen years, and were success- ful. Another noteworthy series of litigations, conducted by Judge Birdseye, was brought to an early and successful termi- nation, being for the foreclosure, in the courts of New Mexico and Colorado, of the mortgage on the Maxwell tract-a tract of land granted by the Republic of Mexico to Beaubien and Miranda, in 1841-some seven years prior to the transfer to the United States of the territory now comprised in Southern Colorado, New Mexico, Arizona, and California. Employed in these cases in March, 1879, Judge Birdseye, before the close of that month, had drawn his bills of foreclosure; had attended the District Court in Colfax County, N. M., and filed them; had pro- cured issues to be joined; had issued .commissions to take the necessary evidence at Amsterdam, in the Netherlands, where nearly all the bonds secured by the mortgage were held. He had these commissions executed and returned before the August term, which term he was able to attend. Just at its close, and literally during the last minute allowed by law for the session of the court, he obtained the fiat of Chief Justice Prince to an interlocutory decree of foreclosure. On that he applied for and obtained the appointment of a Special Term of the court, and at that term, in the next October, obtained final decrees of foreclosure and sale in New Mexico. Before the end of De-

cember similar decrees were obtained in Colorado, where nearly two-fifths of the tract-over 1,714,000 acres-lay. Advertising sales under these decrees, as they required, in New Mexico, Colorado, New York, London, and Amsterdam, Judge Birdseye, on the 7th of February, 1880, sailed for Europe to arrange for the sales. At the end of five weeks he had returned from Amster- dam, with the necessary arrangements completed. Two days were spent in New York in collecting the proofs of publishing the notices of sales, preparing the forms of papers for the reports of sales, deeds, etc., etc. The sales were to take place at the Court House in Cimarron, N. M., at 9 A. M. of March 22d, 1880. A journey by rail of over 2,500 miles, and of 30 by car- riage, brought him to the place of sale, with nearly three hours to spare before the hour. He bought the property for Lis clients, the bondholders. The sales were reported, confirmed, deeds ordered, obtained, reported, confirmed, recorded. In May, 1879, letters patent of the United States for the grant were obtained from the Interior Department, Congress having, in 1860, confirmed the original Mexican title. On the 22d of April, 1880, Judge Birdseye sailed for Liverpool, on his way to Amster- dam, where, during May and the first week in June, he assisted in the organization, under the law of the Netherlands, of the Maxwell Land Grant Company, composed of the bondholders, and he then conveyed the lands to that company. Returning in July, he repaired to New Mexico, to attend the August term of the court, at which the Master's final reports were confirmed. The new company was duly registered for the exercise of its functions in New Mexico and Colorado, and was placed in pos- session of the property-a domain nearly as large as the State of Massachusetts, west of the Connecticut."

Judge Birdseye, besides practicing largely in the New York City Courts and Brooklyn, and in many other countries, has extended his practice into other States.

WINCHESTER BRITTON.

WINCHESTER BRITTON was born in North Adams, Berkshire County, Mass., April 9th, 1826. His paternal and maternal grand parents were hardy, intelligent New England farmers, of pure English descent. His mother's name was Harrington ; her grandfather was a native of Rhode Island, who very early in life removed to the town of Adams, where he became the propri- etor of the land upon which more than one-half of what is now the village of North Adams is located.

The paternal grandfather of Mr. Britton was a native of New Hampshire, and settled in Adams when Mr. Britton's father was yet a young man. The marriage of his parents took place at that place. His mother died at the early age of eighteen, when Winchester was an infant. Before her death she gave him to her father and mother, with whom he lived on their farm until he was ten years of age. His father, having removed to Troy, N. Y., took his boy to his home in that city.

One of Mr. Britton's early recollections is that of accompany- ing his grandfather to the tavern in the then small village of North Adams, and there reading the President's Message. As he read with exceeding ease and fluency, greatly to the satisfac- tion of his hearers, the guests and others at the hotel, it is cer- tain that his education had not been neglected, and that he was possessed of much intelligence. His remarkably brilliant black eyes and his hair, which was as black as his eyes, always at- tracted attention, while strong and active physical powers gave abundant promise of vigorous manhood.

Not long after his removal to Troy, he commenced preparing for college at the Clinton Liberal Institute, at Clinton, N. Y .; completing his preparatory course at the Troy Conference Acad- emy, at Poultney, Vt. In the autumn of 1847 he eutcred the Sophomore class, third term, at Union College. While in col- lege, he was entered as a law student in the office of John Van Buren, then Attorney-General of the State, where he remained

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about one year, during which time his collegiate studies were suspended on account of failing health. His studentship with Mr. Van Buren was not so confining and enervating as it was in college, and admitted of greater relaxation. His health becom- ing restored, he re-entered college, where he continued until he graduated. His chum, after returning to college, and till he graduated, was President Arthur, then a member of the Junior class.

Young Britton for a considerable time was at the head of his class, but undertaking to pursue both his legal and collegiate studies, he divided his time between Union College and the cele- brated Law School at Cherry Valley. This close application to his studies caused a second failure of his health, compelling him to abandon them. About this time the discovery of gold in Cali- fornia created intense excitement throughout the nation. Young Britton, inspired by the hope of regaining his health by travel, determined to visit the new El Dorado. Accordingly, in Decem- ber, 1848, he embarked at New York on the Crescent City, bound for Chagres. The Crescent City was the first steamer that left New York for California. He remained six weeks on the Isth- mus, and then sailed from Panama for San Francisco in the sailing vessel Philadelphia. While on the Isthmus the cholera broke out with much fatality; but, happily, young Britton, though constantly exposed to its ravages, escaped its attack.

After a voyage of eighty-seven days the Philadelphia made the port of San Francisco in safety, and the young man found him- self in the land of gold, where many adventurous men soon found themselves in a short space of time transferred from pov- -erty to wealth. Imbued with the spirit of adventure and enter- prise, Britton sought the mining regions with success. After a few months he acquired interests in San Francisco, and his time was divided between that city and the mines; and he was rewarded by the acquisition of a very handsome fortune. But before he had much time to congratulate himself upon his good fortune, he learned by sad experience that riches often take wings and fly away, for in one night his fortune was all swept away by the memorable fire that nearly destroyed the city of San Francisco. Yielding to an ardent desire which had taken possession of him, he determined to return to his home. Ac- cordingly, in August, 1851, he sailed from San Francisco home- ward. On his passage to Panama he again encountered the cholera under many dangerous circumstances. During the seven days' voyage from Acapulco to Panama, one hundred and fifty-one, nearly one-third of his fellow passengers, died of the terrible disease; but he reached his home in safety, where he continued until the October of the following year, when he re- turned to San Francisco and engaged in business. It was dur- ing his sojourn at home that he made the acquaintance of the estimable and accomplished young lady who subsequently, in March, 1853, became his wife. She was the daughter of William W. Parker, Esq., of Albany. On his return to California he took a deep interest in politics, receiving the nomination for member of the Legislature of the new State, but was defeated in the canvass. He was, however, soon after elected a member of the Common Council of San Francisco, and Supervisor of San Francisco County. While alderman, he took an active part, among other things, in measures for the supply of water and gas to the growing city. While discharging his official duties, an in- cident occurred deeply interesting to him and to the public, one which he will never forget.

Under the peculiar customs of California at that period, to be a public man, in any sense, invited personal collisions. The bit- ter antagonism existing between John Cotter, then an alderman of San Francisco, and John Nugent, editor of the San Francisco Herald, resulted in one of the most celebrated duels in the his- tory of California. Mr. Britton, an excellent shot, was a friend and second of Cotter. In the contest Nugent was very severely wounded and removed from the field, but Cotter was unharmed, Since this duel, though, as we have said, Mr. Britton was skillful

in the use of the pistol, he has seldom, if ever, taken one in his hand.

On January 1st, 1853, in accordance with a promise made to his affianced wife, he bade a final farewell to the Pacific slope, and with a large experience, with health restored, he returned to his native land, completed his classical studies, received his college degree, and returned to his legal studies.

Such was the diligence, industry and success with which he pursued them that, after the lapse of six months, he was called to the Bar, and he immediately removed to the city of New York, where, without an acquaintance, he began his legal career. His married life, which, as we have seen, commenced in March, 1853, was an exceedingly happy one, but it terminated in 1854 by the death of his lovely and amiable wife, which to him was an excessively severe domestic blow. She died in Brooklyn, at the early age of nineteen, leaving an infant son, who survived her but a few days. For a time, Mr. Britton was heart-stricken and felt himself alone in the world. But time, which assuages sorrow, his indomitable energy and never-failing courage, and professional ambition, supported him, enabling him to overcome all obstacles and to attain signal success. As an illustration of the obstacles which Mr. Britton overcame in his way to success, it may be remarked that his receipts from his first year's practice in the city of New York were exactly seventy-five dollars. Not at all discouraged by this meagre return from his profession, he took an appeal to time, and with each succeeding year his income increased, until it is exceeded by few in the profession.

In December, 1855, his second marriage took place; the lady of his choice was Miss Caroline A. Parker, a sister of his former wife, a lady possessing all the accomplishments and all the attributes which constitute an affectionate and agreeable wife, a tender and loving mother, capable of presiding with grace- ful dignity over the home of such a man as Winchester Britton, which we may say without affectation is one of the happiest of homes. Eight boys and three girls, all of whom are living, are the fruits of this happy union.

In 1870, Mr. Britton transferred his legal business to Brooklyn, where he had resided since 1853. His professional reputation had now become so extended that he at once entered, in his new field of labor, upon an unusually large and remunerative prac- tice, not only in the courts of the city of New York, in Brooklyn, in the surrounding counties, but in the State courts and in the Court of Appeals. He had been in practice in Brooklyn but one year when he was elected District Attorney for the County of Kings; he entered upon his official duties in January, 1872, discharging them with singular acceptability until within ahout eleven months before the expiration of his official term, when charges, originating in the high political excitement that pre- vailed, were made against him, resulting in his removal from office by Governor Dix.

So little foundation was there for the charges against Mr. Britton, 80 devoid were they of merit, that the very next fall after his removal he was re-elected to the same office by a majority more than double that by which he was first elected.

The office of District Attorney imposed great responsibility and labor upon Mr. Britton. Though criminal law practice is not exactly suited to his taste, yet, after all, it has attractions for his active, energetio mind. "It gives ample room for the exer- cise of his well-disciplined mental energies-his power of collect- ing, combining and amplifying. It gives scope to his critical knowledge of statute law and the subtle rules of evidence." It was his fortune during his term of office to be called upon to conduct many exciting criminal cases, among which was the celebrated case of the People v. Rubenstein, tried at Brooklyn in January and February of 1876. Rubenstein had been indicted for one of the most mysterious and atrocious murders known in legal history; the evidence against him was purely circum- stantial. Many of these circumstances were remote and discon-

obby

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nected, and the whole crime was enshrouded in such mystery that the work of convicting the alleged perpetrator, who was defended by that powerful legal gladiator, Wm. A. Beach, was an herculean task; but with consummate skill and great energy, Mr. Britton seized upon these circumstances, blended them together, and they each tended to throw light upon, and to prove the other, reaching & conclusion that overthrew the ingenious bypothesis upon which a great lawyer founded a formidable defense, resulting in the conviction of the prisoner.

No one can read the admirable and touchingly eloquent address to the jury for the defense in the case without the highest admiration. None can read the closing argument of Mr. Britton to the jury without equal admiration. It may be sum- med up in a few words; it was exhaustive, it was learned, it was eloquent, it was convincing. It left no doubt in the minds of the jury, the spectators, or the Bar that Rubenstein was guilty of one of the most cruel murders on record. His conviction was therefore swift and certain.

Space will not permit us to give a detailed account of the many criminal trials which Mr. Britton conducted for the people, but they all tended largely to enhance his fame and to place him in the front ranks of living advocates.

Among his civil triumphs at the Bar, was the case of Edgerton v. Page-a leading case in the Court of Appeals, and among the first there argued by him. This case established the doctrine of constructive eviction of a tenant by a landlord, with the quali- fication that no such eviction could exist unless the tenant actually left before the expiration of his term, qualifying in this respect the case of Dyett v. Pendleton. John Graham, then in the height of his fame as a lawyer, was his opponent. Taking the whole history of this case, its result was a triumph for Mr. Britton of which any lawyer in the nation might well be proud.

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The civil, political, professional and ecclesiastical history, and commercial and industrial record of the county of Kings and the city of Brooklyn, N. Y., from 1683 to 1884, Volume II, Part 161

Author: Stiles, Henry Reed, 1832-1909, ed Publication date: 1884 Publisher: New York, W. W. Munsell & Co Number of Pages: 1345

Author: Stiles, Henry Reed, 1832-1909, ed
Publication date: 1884
Publisher: New York, W. W. Munsell & Co
Number of Pages: 1345