text:
    The People of the State of New York, Respondent, v. Joseph Barbato, Appellant.

      (Argued June 5, 1930;
    decided July 8, 1930.)

      Peter L. F. Sabbatino, David If. Slade and Maxwell Slade for appellant.
    The alleged confessions were obtained from the defendant by the assaults and the brutalities of the officers who arrested him while he was in their custody, and the trial court erred in submitting the confessions, in view of the testimony, for the consideration of the jury. (People v. Weiner, 248 N. Y. 118; People v. Ledwan, 153 N. Y. 10; People v. Koerner, 154 N. Y. 355; People v. Corey, 157 N. Y. 332; People v. Maine, 166 N. Y. 50; People v. Mills, 178 N. Y. 274.) An instruction that to establish an alibi successfully, the evidence of the alibi must so cover the whole of the transaction as to render it impossible that the defendant could have committed a crime is erroneous. (People v. Kelly, 35 Hun, 295; Beavers v. State, 103 Ala. 36; Albritton v. State, 94 Ala. 76; Briggs v. People, 219 Ill. 330; Snell v. State, 50 Ind. 516; Stuart v. People, 42 Mich. 255; Pollard v. State, 53 Miss. 410; Gawn v. State, 7 Ohio Cir. Dec. 19; Ford v. State, 101 Tenn. 454.)

      Charles B. McLaughlin, District Attorney {Sol Boneparth, Israel J. P. Adlerman and Herman J. Fliederblum of counsel), for respondent.
    The confessions of the defendant were properly received in evidence. (People v. Roach, 215 N. Y. 592; People v. Schermerhorn, 203 N. Y. 71; People v. Meyer, 162 N. Y. 357; People v. Trybus, 219 N. Y. 18; Willett v. People, 27 Hun, 469; 92 N. Y. 29;
      People v. Ferola, 215 N. Y. 285; People v. Doran, 246 N. Y. 409; People v. Cohen, 223 N. Y. 406; People v. Becker, 215 N. Y. 126; People v. Cignarale, 110 N. Y. 26; People v. Fillippelli, 175 N. Y. 509.) The trial court committed no error in its charge as to alibi. (People v. Johnson, 185 N. Y. 219; People v. Neufeld, 165 N. Y. 43; People v. Gilbert, 199 N. Y. 10; People v. Pallister, 138 N. Y. 601; People v. Tobin, 176 N. Y. 278; People v. Huson, 187 N. Y. 97.)
   Pound, J.

Julia Musso Quintieri was strangled to death in her apartment in the borough of The Bronx at some time late Saturday night, September 14, 1929, or early Sunday morning, September 15, 1929. The question is whether the jury was justified in finding from the competent evidence received on the trial that defendant committed the act of killing. The defense was an alibi. The People relied on the evidence of defendant’s confessions to establish his guilt. The learned trial judge received the evidence of such confessions and left to the jury the question as to whether they were voluntary under Code of Criminal Procedure, section 395. He instructed the jury that they must acquit the defendant if they found that the confessions were the result of beatings or of fear produced by threats. The defendant testified that the confessions were extorted from him by threats and force and that he was under the influence of fear when he made them. The People’s witnesses — police officers — denied that any threats or force were used, although defendant was detained by them without legal warrant until the alleged confessions were obtained — a practice condemned by this court in People v. Trybus (219 N. Y. 18, 22). If the confessions thus obtained were made voluntarily their reception in evidence is not illegal as matter of law (Balbo v. People, 80 N. Y. 484), although the circumstance may be regarded as significant as bearing on the question of credibility.

Confessions thus obtained by police officers from persons accused of crime are often offered and almost as often repudiated by defendants when on trial on the ground that they were “ made under the influence of fear produced by threats.” The police officers invariably deny, as in this case, that threats or violence were used. The question then arises as to the admissibility of the confessions in evidence. The rule has recently been stated by this court with precision and care: “ The question whether there is any evidence of the existence of a voluntary confession is one of law. In the first instance this question must of course be decided by the trial judge. If the evidence shows without dispute that the confession was extorted by force or fear or if a verdict that it was freely made would be clearly against the weight of evidence, the judge should reject it. Only where a fair question of fact is presented should the jury be permitted to determine whether the confession is voluntary. If there is no such conflict and if the evidence points clearly to the involuntary nature of the confession the judge should exclude it as without evidence to support it.” (People v. Weiner, 248 N. Y. 118, 122.)

When the evidence of the People meets the evidence of the defendant as oath against oath, with no corroboration on either side, a fair question of credibility is presented for the jury to decide. Rarely does the evidence on a criminal trial proceed beyond this point. When the evidence tends to show that the defendant’s tale of threats or beating is false and that the confession was voluntary, as, for example, when no bruises are seen on the defendant’s body and when with full opportunity he makes no prompt complaint to officials or friends, the trial judge should submit the question to the jury, even though the circumstances in which the confession is obtained may be suspicious. (People v. Doran, 246 N. Y. 409.) But when the weight of evidence indicates that the confession was made under the influence of fear produced by threats the judge should refuse to admit the statement. (People v. Weiner, supra.) The confession may have been made after the threats or to parties other than the coercing officers so as to present a question for the jury whether it was given under the influence of the threats (Reg. v. Rue, 13 Cox, Crim. Cases, 209; People v. Trybus, supra) or other combinations of circumstances may arise but, speaking in generalities, the above statement of the rule will suffice for the present. Whether true or false, confessions obtained in violation of section 395 of the Code of Criminal Procedure are not sufficient to sustain a conviction.

■ A careful analysis of the evidence indicates that when defendant was taken into custody by the police officers at nine o’clock in the afternoon on Sunday, September 15, at Sunnydale farm near Newburgh, he asserted his innocence and said that he had left New York before the hour when the crime was committed; that he was taken to New York to the 52d precinct police station on Monday, September 16, at 12:05 or 12:10 A. M.; that the District Attorney was there and questioned him; that he still asserted his innocence; that after three-quarters of an hour the District Attorney departed leaving defendant in the hands of three police officers; that thereafter, about six o’clock in the morning of September 16, defendant wrote on a card the words: “ I kill Julia Musso; ” that about noon on September 16 a stenographic record was taken of an interview with defendant by an Assistant District Attorney at the station house in which he again said that he killed Julia Musso but refused or was unable to state why or how he killed her; that another stenographic record was made of an interview at the District Attorney’s office at 4:45 p. M. of the same day in which he said: I can say I killed her because she tried to break up my home ” and “ I don’t remember a thing what happened there. I will plead guilty, I am willing to go to the electric chair for it.”

No confession was obtained between the time the District Attorney left and six o’clock in the morning. Defendant testifies that one of the police officers struck him on the jaw and knocked him to the floor; that the other two pulled his hair and knocked him about with blackjacks, kicked him, cursed him, threatened to kill him, and made him write I kill Julia Musso ” because they menaced him with further abuse if he refused; that he was still under the influence of fear when he made the later statements, so that he made no complaint to the Assistant District Attorney or the District Attorney.

On Tuesday, September 17, he was arraigned before the magistrate in the Bronx Homicide Court. He then seems to have had a black eye or two black eyes, although the evidence on this point is not as conclusive as it might be. He claimed protection, saying that he was broken to pieces and could not talk. He was then committed to the Bronx County Jail. On September 18 he complained of pain to the warden. He then had a black eye. The warden called Dr. Radin, the attending jail physician, to examine him. He was stripped. Dr. Radin testified as follows:

Q. Now, doctor, will you tell this jury what your examination disclosed? A. I found echymoses, that means black and blue marks, over the right arm, with some swelling of the arm, with a hemetoma over the middle of the arm. A hemetoma is a little collection, or tumor of the blood. There were several abrasions over the right elbow, and right forearm. Abrasions are superficial scratches. There are livid stripes over the right forearm and back of the right hand. There are echymoses, black and blue marks, over the left arm, also over both eyelids on the left eye; over the left malar bone, that means the cheek bone here (indicating); there were some abrasions in the right temporal region, that is, up here (indicating) —

“ The Court: Witness indicates by placing his hand on the left temple.

“A. (continuing) — There were a few echymoses over the back of the neck, and he complained of pain on-manipulation of the head. There are some echymoses over the right scapula; that is the shoulder blade. There were echymoses over both sides of the back, and in the left lumbar region, that is, the left loin, in the left lower axillary region — the axillary region is the side of the chest, and the left lower axillary region would be the lower part of the side of the chest — there were echymoses over the right buttock, and over the front of the right thigh and over the front of the left thigh and over the back of both thighs, there were some abrasions of the right leg.”

This evidence means that his body was covered with black and blue spots and lumps or swellings, caused by a fusion of blood under the sldn, which might result from a beating. The doctor also saw the black eye.

On September 20, Mr. Justice Hatting, over the objection of a representative of the District Attorney’s office, granted an order that defendant be photographed and on September 23 he was photographed in a nude condition. The photographs tend to corroborate the evidence of Dr. Radin.

The District Attorney on this evidence was called on to account for the defendant’s condition. Although he offers some proof to show that defendant’s condition was not as serious as defendant sought to make it, he makes no attempt to deny that it was as testified to by Dr. Radin and shown by the photographs. He points out that although defendant had testified that he was kicked in the stomach, no marks, except a scar from an appendicitis operation, were found on the stomach. He urges that the marks all might have been received in a struggle ¡with the deceased. She bore injuries — a broken nose, wounds on her lips, a lacerated finger, black and blue eyes which were inflicted before death. The room where the body was found bore no evidence of a struggle.

Such a hypothesis scarcely harmonizes with the admitted facts. After denying his guilt, from the time of his capture until six o’clock the following morning, defendant suddenly writes on a card: I kill Julia Musso.” Was his change of mind due to reflection and repentance under' the long-continued questionings and exhortations of the police officers (Cf. Inquisitorial Confessions ” 1 Cornell Law Quarterly, p. 77) or did they scare him into making it? He gives no details of the killing, either because he cannot or because he will not. One might consider, as bearing on the question of his guilt and the voluntary character of his confessions, why he was thus reticent. He made to the police officers a bare admission of guilt. They are unable, as was the District Attorney, to get more out of him except his statement that he was at the apartment of the deceased. He comes out of the long interview with the officers with palpable evidence of the application of physical force to his body. Nothing but the merest supposition suggests that his eye was blackened or his body bruised when he was first brought to the station house. When he was taken to jail, his body bore evidence of severe beating and bruising.

We are not gifted "with the power to discern truth with mathematical certitude. Defendant may have exaggerated the severity of the attacks upon him. He may have imposed a story upon us which is a creation of his imagination. Who can say? We must weigh the evidence and not speculate on what may have happened. His counsel repudiated his evidence that the District Attorney instructed the police officers to take him out and beat him, even before the District Attorney denied it. To that extent we must treat him as a fabricator of false evidence. Yet on the weight of evidence the physical facts corroborate defendant’s statement that injuries were inflicted by the police officers to procure a confession. The trial judge should have excluded the confessions. (People v. Weiner, supra.)

It has been said: “ One is driven to the conclusion that the third degree is employed as a matter of course in most states, and has become a recognized step in the process that begins with arrest and ends with acquittal or final affirmance.” (43 Harvard Law Review, 618.) The practice in England seems otherwise. Statements made after arrest in answer to questions by police officers, if legal evidence (as to which the law is not settled), are cautiously received. (Ibrahim v. Rex, [1914] A. C. 599.) Lawless methods of law enforcement should not be countenanced by our courts even though they may seem expedient to the authorities in order to apprehend the guilty. Whether a guilty man goes free or not is a small matter compared with the maintenance of principles which still safeguard a person accused of crime. If torture is to be accepted as a means of securing confessions, let us have no pretense about it but repeal section 395 of the Code of Criminal Procedure and accept all evidence of all confessions however obtained, trusting to the jury to winnow the true from the false. As long as the section remains in the Code, the courts are bound to give as full protection to an accused as the evidence warrants.

The reception of this evidence was not the only error committed on the trial. The trial judge instructed the jury on the subject of alibi as a defense. He said: “ It is obviously essential to the satisfactory proof of an alibi that it should cover the whole of the time of the transaction in question, so as to render it impossible that the prisoner should have committed the act; it is not enough that it renders his guilt improbable merely.”

In view of what was said in the charge as a whole on the subject of reasonable doubt (cf. Commonwealth v. Choate, 105 Mass. 451, 459) and of the disposition we are to make of this case, we would not comment on this error were it not that the same language appears in another record before the court and seems to be accepted by trial judges as a proper statement of the law. It casts too great a burden on the defendant. If the proof as to an alibi raises a reasonable doubt in the minds of the jury as to whether the accused was present at the place and time where and when the crime was committed, the accused is entitled to have the defense fairly treated like any other defense and is not obliged to establish that it was impossible for him to commit the act charged. If under the evidence tending, if true, to prove an alibi, it may have been possible for the defendant to have committed the crime, it is still for the jury to determine whether, if the evidence is true, he availed himself of the possibility it afforded. (Beavers v. State, 103 Ala. 36, 40; Briggs v. People, 219 Ill. 330, 343-345; State v. Ward, 61 Vt. 153, 192; Stuart v. People, 42 Mich. 255, 261; Ford v. State, 101 Tenn. 454, 456, 457; Wharton’s Crim. Law [11th ed.], vol. 1, § 380.) The instructions of the court were too strict in this respect. If the proof as to an alibi, when taken into consideration with all the other evidence, raises a reasonable doubt as to defendant’s guilt, he is entitled to an acquittal.

The judgment of conviction should be reversed and a new trial ordered.

Cardozo, Ch. J., Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment reversed, etc.


source: Caselaw Access Project

author: Cardozo, Ch. J.

license: Public Domain

text:
    Outlet Embroidery Company, Inc., Respondent, v. Derwent Mills, Ltd., Appellant.

      (Argued June 2, 1930;
    decided July 8, 1930.)

      Leo C. Weiler for appellant.
    The contract by reason of the failure to definitely fix the price is an illusory contract or nudum pactum. (Ansorge v. Kane, 244 N. Y. 395; Clark Paper & Mfg. Co. v. Stenacher, 236 N. Y. 312; St. Regis Paper Co. v. Hubbs & Hastings P. Co., 235 N. Y. 30; Sun P. & P. Assn. v. Remington P. & P. Co., 235 N. Y. 338; Varney v. Ditmars, 217 N. Y. 223; United Press v. New York Press Co., 164 N. Y. 406; Mayer v. McCreery, 119 N. Y. 434; Royal Bank of Canada v. Williams, 220 App. Div. 603; Blackwell v. Glidden Co., 208 App. Div. 317; Dairymen’s League v. Holmes, 207 App. Div. 429; Mandel v. Guardian Holding Co., Inc., 200 App. Div. 767; Canet v. Smith, 173 App. Div. 241; Lambert v. Hays, 136 App. Div. 574; Bluemner v. Garvin, 120 App. Div. 29.) The price was not a “ firm price.” The stated possibility of change inhered in the contract, qualified the so-called “ firm price ” at all times and rendered the price indefinite. A change of price pursuant to the stated possibility of change was not a condition subsequent. (Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; First Nat. Bank v. Jones, 219 N. Y. 312; Wayne Co. Produce Co. v. Duffy-Mott Co.,
      244 N. Y. 351; Solomon Tobacco Co. v. Cohen, 184 N. Y. 308; Kerber Straw Hat Corp. v. Lincoln, 134 Misc. Rep. 211.) The contract is not one in which the price may be made certain by other facts which are established or may be made certain. (Keystone Hardware Corp. v. Tague, 246 N. Y. 79; Fraker v. Hyde & Sons, 135 App. Div. 64; Franklin Sugar Refining Co. v. Lipowicz, 247 N. Y. 465; Von Reitzenstein v. Tomlinson, 249 N. Y. 60; New York Oversea Co. v. C. J. & S. A. Trading Co., 206 App. Div. 242.)

      Solon J. Liebeskind for respondent.
    The agreement definitely states the price. (Nassau Supply Co. v. Ice Service Co., 252 N. Y. 280; Cohen & Sons v. Lurie Woolen Co., 232 N. Y. 114; Franklin Sugar Refining Co. v. Lipowicz, 247 N. Y. 465; San Remo Copper Mining Co. v. Moneuse, 149 App. Div. 26; Thuman v. Clawson & Wilson Co., 211 App. Div. 507.) Even if there was uncertainty in this provision of the defendant’s letter with regard to the tariff revision, it must be disregarded as having no effect on the specific price stated in the agreement. (Howell v. Garrett & Co., 218 App. Div. 322; Saratoga State Waters Corp. v. Pratt, 227 N. Y. 429; Rosenberg Bros. Co. v. Buffum Co., 234 N. Y. 344; N. E. D. Holding Co. v. McKinley, 246 N. Y. 44.) The surrounding circumstances must be considered in construing the agreement. The agreement must also be construed in favor of the plaintiff, as it was the defendant who prepared it. (Sattler v. Hallock, 160 N. Y. 301; Hammon on Contracts, p. 89; Aldrich v. New York Life Ins. Co., 235 N. Y. 223; Gillett v. Bank of America, 160 N. Y. 555; Stevens v. Van Wagoner Linn Construction Co., 165 App. Div. 45.)
   Cardozo, Ch. J.

The question to be determined is whether a complaint is sufficient, and this depends upon the question whether documents made part of it contain the essentials of a contract.

The defendant, by Brucks & Peyser, its agents, wrote

the plaintiff as follows:

“ June 15, 1929.

“ Outlet Embroidery Co., “412 6th Avenue,

“ New York City.

“ Gentlemen : Enclosed please find copy of your order placed with us today, terms on same 3 /10 days, delivery as soon as possible.

“ We have cabled this order today to England as these goods will be made up special for you.

“ Please send us your confirmation of same by return mail.

Also note that the price of $3.10 per box on your Fil D’Angora brand which we are to ship to you is subject to change pending tariff revision.

“ Yours very truly

“BRUCKS & PEYSER “Morell Peyser.

“ All Prices Subject to Change Pending Tariff Revision.”

Accompanying this letter was an order specifying quantities and colors, and repeating the statement that the price was to be $3.10 per box. The plaintiff, on receipt of the letter and its inclosure, made answer as follows:

“June 17,1929.

ÍÍT) ¡, „ “ Bruges & Peyser,

“ 100 Fifth Avenue,

“ New York, N. Y.

“ Gentlemen: Received your letter dated June 15, 1929, enclosing copy of my order.

“ We confirm the same as requested.

' We hope you will deliver the merchandise as soon as possible and avoid last seasons delays.

“ Very truly yours,

“OUTLET EMBY. SUPPLY CO., INC.

“ per: A. Dratler.”

Three days later (June 20,1929) the defendant canceled its acceptance, and notified the plaintiff that it would refuse to make delivery.

The plaintiff sues for the damages resulting from the refusal. The defendant insists that since the price was subject to change pending revision of the tariff, the agreement, though in other respects complete, was inchoate and abortive (United Press v. New York Press Co., 164 N. Y. 406; Sun P. & P. Assn. v. Remington P. & P. Co., 235 N. Y. 338).

The letters between plaintiff and defendant were from one merchant to another. They are to be read as business men would read them, and only as a last resort are to be thrown out altogether as meaningless futilities (Cohen & Sons, Inc., v. Lurie Woolen Co., 232 N. Y. 112, 114; Solter v. Leedom & Worrell Co., 252 Fed. Rep. 133). Read the privilege of change with inflexible adherence to its form, and one turns it into nonsense. If the change of price, to be valid, must be declared while revision is still pending, no change may be permitted after the revision is accomplished, which is the very time of all when a change will be essential. To read the reservation thus is to rob it of its efficacy as an implement to be used in furtherance of a business purpose. In the transactions of business life, sanity of end and aim is at least a presumption, albeit subject to be rebutted. The defendant like the plaintiff supposed that in signing these documents it was doing something understood to be significant and serious. It not only accepted the plaintiff’s order, but it asked the plaintiff to confirm the terms of the acceptance, and followed this with a cable of the order to its manufacturer abroad. Was it all sound and fury, signifying nothing?

If literalness is sheer absurdity, we are to seek some other meaning whereby reason will be instilled and absurdity avoided. In June, 1929, Congress was debating a new tariff, and the debate continued for a year. Of this we take judicial notice. During the period of suspense, an importer could not be sure whether goods previously ordered from abroad would arrive in the United States before the change or after. If they did not arrive till after, the prices would be inadequate to the extent of the new duties. In the setting of these notorious facts the reservation now in question was written and accepted.

All prices subject to change pending tariff revision.” We think there is mere fatuity in a construction of the writing that would turn this reservation into a privilege of arbitrary change, at any time or for any reason, with change of tariff or without. No seller, drafting such a writing, would expect the customer receiving it to understand it in that way (Moran v. Standard Oil Co., 211 N. Y. 187, 196; American Law Institute, Restatement of Law of Contracts, §§ 223, 232). No buyer would so read it. He would paraphrase the writing thus: “A change of price there may have to be if the tariff is revised. ‘ Pending such revision/ the buyer will have to take the risk that the price may be increased by the measure of the duty added.” In the setting of the occasion, no other interpretation was possible for any reasonable mind. This being so, the court may fix the meaning as if the inference were one of law (Williston, Contracts, vol. 2, § 616, p. 1194).

We find it needless to determine whether the buyer would have been at liberty, if a revision of the tariff had been followed by a change of price, to declare the bargain off, or would be deemed to have assented by implication to the payment of another price, the one theretofore named but augmented by the duty. If the second be the true construction, a known and established standard has fixed the price payable in every possible contingency (Franklin Sugar Refining Co. v. Lipowics, 247 N. Y. 465). If the first construction be preferred, there is still no failure of a contract, for revision did not follow until long after the time when performance became due. In that view of the meaning, there was a vahd and perfected contract, though subject to a privilege of cancellation in a specified contingency (Cohen & Sons, Inc., v. Lurie Woolen Co., 232 N. Y. 112; Williston, Sales, vol. 1, § 8). No doubt there would be a risk in closing on such terms, yet a risk, after all, not inordinate or incredible. Buyer and seller may have had faith in their ability to come together as to terms if the seller was insistent that because of tariff changes the price should be increased. The increase would not be possible unless the change was an accomplished fact. Whatever loophole was left, whatever chance that the buyer might use the privilege of cancellation harshly, was of the seller’s own creation, since the form of the agreement had been drafted by its agents. Theirs, and not the buyer’s, is the blame, if there was improvidence or folly.

The complaint might better have stated more precisely the pleader’s construction of writings so confusing. Even if this be granted, the construction urged by the defendant is so plainly unreasonable as to justify us in holding that it is to be rejected altogether. Alternative shades of meaning may remain. There is still a true contract, whichever shade shall be accepted.

The order should be affirmed with costs, and the question certified answered yes.”

Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Order affirmed, etc.


author: Pound, J.

text:
    James T. O’Neill et al., Appellants, v. Annie O’Hare, Respondent.
    (Argued June 13, 1930;
    decided July 8, 1930.)

      Irving I. Goldsmith and Walter M. Hinkle for appellants. ■
    The facts and circumstances require the intervention of equity to protect the rights of the plaintiffs. (O’Beirne v. Gildersleeve, 116 App. Div. 902.) Nonuser does not constitute an abandonment of plaintiffs’ right to enjoy the easement. (Smith & Son’s Carpet Co. v. Ball, 143 App. Div. 83.)

      Emanuel Forst and Charles Lewis for respondent.
    The Appellate Division properly construed and interpreted the easement with respect to the erection of the proposed garage. (Grafton v. Moir, 130 N. Y. 465; Blackman v. Striker, 142 N. Y. 555; Mitchell v. Reid, 192 N. Y. 255; Wilson v. Ford, 209 N. Y. 186; O’Beirne v. Gildersleeve, 116 App. Div. 902; Casella v. Gallow, 197 App. Div. 825.) The findings of fact and conclusions of law as made by the Appellate Division with respect to the clothespole are correct. (Greenwood Lake & Port Jervis R. Co. v. N. Y. & Greenwood Lake R. Co., 134 N. Y. 435.)
   Pound, J.

This is an appeal from a judgment of the Appellate Division of the Supreme Court, Second Department, reversing upon the law and facts a judgment made at Special Term, enjoining the defendant herein from in any manner interfering with the plaintiffs’ alleged easement and right of way over the property of the defendant, and also granting a mandatory injunction directing the defendant to remove the garage under construction upon the defendant’s premises, because of its alleged interference with the plaintiffs’ easement and right of way, and also directing the relocation of a certain clothes pole to be used by the plaintiffs to some undetermined place. The order of the Appellate Division further directed judgment in favor of the defendant, dismissing the complaint, with costs, and made new findings of fact and conclusions of law in conformity with its decision.

Title to thiee parcels of property in the borough of Brooklyn was once vested in a common owner. They are designated on a survey in evidence herein as “ A,” “ B ” and “ C.”

Parcel A is now owned by a stranger to the litigation. It is on the northeast corner of Sixth avenue and Seventy-fifth street and is known as No. 607 Seventy-fifth street. It has a frontage of 29 feet 6^ inches on Sixth avenue and 42 feet 6% inches on Seventy-fifth street.

Parcel B is owned by the plaintiffs. It is east of parcel A on Seventy-fifth street and south of parcel C. It is known as No. 609 Seventy-fifth street. It has a frontage of 44 feet on Seventy-fifth street and a depth of 25 feet on each side.

Parcel C is owned by the defendant. It is on Sixth avenue, No. 7421. It has a frontage of 26 feet 9% inches on Sixth avenue and a depth of 96 feet 2% inches on one side and a depth of 105 feet and 10 inches on the other side and is 25 feet in width in the rear. It adjoins parcels A and B on the north. It was conveyed by the common owner to defendant’s predecessor in title October 31, 1922, with an easement and subject to reservations as follows:

1. “ Together with an easement for passage and re-passage for pleasure automobiles only to the garage on the rear of said premises over the northerly 4 feet of the premises adjoining the aforesaid premises on the south. Subject, however, to an easement over the southerly J¡. feet of these premises for passage and re-passage for pleasure automobiles only to the garage on the rear of the premises adjoining on the south in favor of all owners of the property adjoining on the south.

2. “ The party of the first part reserves the right to erect a clothes pole in the rear of the building on the northerly side of the lot herein described, which said clothes pole is to be used to carry wash lines from the corner building to said wash pole for the drying of clothes of the occupants of the corner building. These lines are to be removed when not actually in use.”

At the time of this conveyance, no garage had been erected on defendant’s lot (parcel C) but plaintiffs had constructed a garage as a part of their building on parcel B which had an exit on Seventy-fifth street, but was closed in the rear by a solid brick wall.

A clothes pole erected near the rear of parcel C carried two lines, one to the north wall of parcel A and one to the north wall of parcel B. Parcel A is the corner lot.

Parcel B was conveyed to plaintiffs June 16, 1923, by deed which contains the following clauses:

1. Subject to an easement or right of way over the northerly 4 feet of the premises above described in favor of the premises adjoining on the north [parcel C] for the purpose of a driveway for pleasure automobiles only to and from the garage erected or to be erected on the said adjoining premises.

2. “ Together with an easement and right of ingress and egress over the northerly 4 feet of the premises adjoining the premises above described on the west. [Refers to parcel A.]

3. “ Together with the right to erect a clothes pole in the rear of the building on the lot to the north of the lot herein described, which said clothes pole is to be used to carry wash lines from the building on the premises herein above described to said wash pole for the drying of clothes of the occupants of the building on the premises herein described; said lines to be removed when not actually in use; said right to erect said pole and use the same being subject and subordinate to the lien of the mortgages now of record upon said northerly adjacent premises.

4. Together with an easement over the southerly 4 feet of the premises adjoining on the north for the passage or íepassage of pleasure automobiles and ingress and egress to the above premises from Sixth Avenue. [Refers to parcel C.]

The purpose of these reservations and easements was to create an eight-foot way for automobiles from garages in the rear of parcels B and C to Sixth avenue. Plaintiffs claim that the right of way must be kept open to the rear of the premises. Defendant claims that it extends only to her garage “ to be erected in the rear of the premises ” and she is actually erecting a garage extending to the lot line between the two parcels for a distance of 18 feet Vyi inches.

The trial judge held that the right of way extended to the rear of the premises and was for the benefit of both parcels B and C and could not be built upon by either. The Appellate Division held that the eight-foot way was not of sufficient width to furnish a right of way to a garage built at right angles thereto and construed the deeds to uphold defendant’s contention. This court reviews the findings of fact, but nothing appears in this case but the proper construction to be put on the conveyances in evidence. From them it plainly appears that plaintiffs are entitled to an eight-foot right of way to the garage in the rear of their premises. The garage of defendant will cut down this approach to four feet if she is allowed to build to the lot line. The right of way is at best coffined, cabined and confined. It was probably thought adequate for small cars. Plaintiffs’ garage now opens on Seventy-fifth street. The easement as contended for by plaintiffs operates to the great disadvantage of defendant without any corresponding present advantage to plaintiffs. It is not, however, impossible to carry out the terms of the reservation. Plain language sometimes yields to the construction called for by circumstances in order to afford reasonable facilities for the enjoyment of a right of way (Bakeman v. Talbot, 31 N. Y. 366; Wilson v. Ford, 209 N. Y. 186, 196), but here it seems that to depart from the terms of the conveyances would be to take from one party rights expressly granted and reserved and give them to another. The common grantor gave each the right to which he is entitled and neither should have more than he received.

Rights in real property created by grant are not lost by non-user alone (Snell v. Levitt, 110 N. Y. 595, 602) and plaintiffs have done no act clearly indicative of an intention to abandon their right or to acquiesce in the claims of defendant.

So far as the clothes pole is concerned, it should be on the northerly line of defendant’s property. It is on the easterly line. It is contended that the reservation is of the right to erect a clothes pole on the northerly side of defendant’s lot to carry wash lines from the corner building, parcel A, and that plaintiffs here have no right to enforce the location of the clothes pole in the rear of defendant’s premises; that they are not the occupants of the corner building ” and have nothing to say about the location of the pole; that the conveyance to plaintiffs by the common owner of the right to erect a clothes pole on premises already conveyed to defendant could not vest any rights in plaintiffs over lands thus conveyed. All this reasoning must give way to practical construction whereby parcels A and B have been regarded as the corner property ” as they were before separate conveyances were made at the time when the deed to defendant was executed. The clothes pole is for the benefit of parcel B as well as parcel A. It is improperly located and should be relocated on the northerly line of defendant’s lot.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


author: Cardozo, Ch. J. Pound, J.

text:
    The People of the State of New York, Respondent, v. Joseph Zackowitz, Appellant.
    (Argued June 9, 1930;
    decided July 8, 1930.)

      John J. Riordan and E. Ivan Rubenstein for appellant.
    The People failed to establish the defendant’s guilt of murder in the first degree beyond a reasonable doubt. (People v. Guadagnino, 233 N. Y. 344.) Proof of the possession of guns not involved in homicide by the defendant was improperly permitted and said guns were improperly received in evidence as exhibits. (People v. Molineux, 168 N. Y. 264; People v. Hinksman, 192 N. Y. 421; Potter v. Browne, 197 N. Y. 288; People v. De Garmo, 179 N. Y. 130; People v. Dietz, 216 App. Div. 23; People v. Figara, 218 App. Div. 638; People v. Pettanza, 207 N. Y. 560.)

      George E. Brower, District Attorney (Henry J. Walsh of counsel), for respondent.
    The appellant was guilty of the crime of murder in the first degree. (People v. Place, 157 N. Y. 584; People v. O’Neill, 112 N. Y. 355; People v. Conroy, 97 N. Y. 62; People v. Kerrigan, 147 N. Y. 210; People v. Ferraro, 161 N. Y. 365; People v. Sanducci, 195 N. Y. 361; People v. Poulin, 207 N. Y. 73; People v. Majone, 91 N. Y. 211; People v. Breen, 181 N. Y. 493; People v. Chiaro, 200 N. Y. 316; Thomas v. People, 67 N. Y. 218; People v. Governale, 193 N. Y. 581; People v. Jackson, 196 N. Y. 357; People v. Barberi, 149 N. Y. 256; People v. Guadagnino, 233 N. Y. 344; People v. Schmidt, 168 N. Y. 568; People v. Gilbert, 199 N. Y. 10.) Proof that several revolvers other than the weapon with which the homicide was committed were found in the appellant’s home after his arrest and that the appellant admitted ownership of them was properly received. (People v. Hill, 198 N. Y. 64; People v. Rodawald, 177 N. Y. 408; People v. Del Vermo, 192 N. Y. 470; People v. Kinney, 202 N. Y. 389; 1 Wigmore on Evidence, 218; People v. De Garmo, 179 N. Y. 130.)
   Cardozo, Ch. J.

On November 10, 1929, shortly after midnight, the defendant in Kings county shot Frank Coppola and killed him without justification or excuse. A crime is admitted. What is doubtful is the degree only.

Four young men, of whom Coppola was one, were at work repairing an automobile in a Brooklyn street. A woman, the defendant’s wife, walked by on the opposite side. One of the men spoke to her insultingly, or so at least she understood him. The defendant, who had dropped behind to buy a newspaper, came up to find his wife in tears. He was told she had been insulted, though she did not then repeat the words. Enraged, he stepped across the street and upbraided the offenders with words of coarse profanity. He informed them, so the survivors testify, that “ if they did not get out of there in five minutes, he would come back and bump them all off.” Rejoining his wife, he walked with her to their apartment house located close at hand. He was heated with liquor which he had been drinking at a dance. Within the apartment he induced her to tell him what the insulting words had been. A youth had asked her to lie with him, and had offered her two dollars. With rage aroused again, the defendant went back to the scene of the insult and found the four young men still working at the car. In a statement to the police, he said that he had armed himself at the apartment with a twenty-five calibre automatic pistol. In his testimony at the trial he said that this pistol had been in his pocket all the evening. Words and blows followed, and then a shot. The defendant kicked Coppola in the stomach. There is evidence that Coppola went for him with a wrench. The pistol came from the pocket, and from the pistol a single shot, which did its deadly work. The defendant walked away and at the corner met his wife who had followed him from the home. The two took a taxicab to Manhattan where they spent the rest of the night at the dwelling of a friend. On the way the defendant threw his pistol into the river. He was arrested on January 7, 1930, about two months following the crime.

At the trial the vital question was the defendant’s state of mind at the moment of the homicide. Did he shoot with a deliberate and premeditated design to kill? Was he so inflamed by drink or by anger or by both combined that, though be knew the nature of his act, he was the prey to sudden impulse, the fury of the fleeting moment? (People v. Caruso, 246 N. Y. 437, 446). If he went forth from his apartment with a preconceived design to kill, how is it that he failed to shoot at once? How reconcile such a design with the drawing of the pistol later in the heat and rage of an affray? These and like questions the jurors were to ask themselves and answer before measuring the defendant’s guilt. Answers consistent with guilt in its highest grade can reasonably be made. Even so, the line between impulse and deliberation is too narrow and elusive to make the answers wholly clear. The sphygmograph records with graphic certainty the fluctuations of the pulse. There is no instiument yet invented that records with equal certainty the fluctuations of the mind. At least, if such an instrument exists, it was not working at midnight in the Brooklyn street when Coppola and the defendant came together in a chance affray. With only the rough and ready tests supplied by their experience of life, the jurors were to look into the workings of another’s mind, and discover its capacities and disabilities, its urges and inhibitions, in moments of intense excitement. Delicate enough and subtle is the inquiry, even in the most favorable conditions, with every warping influence excluded. There must be no blurring of the issues by evidence illegally admitted and carrying with it in its admission an appeal to prejudice and passion.

Evidence charged with that appeal was, we think, admitted here. Not only was it admitted, and this under objection and exception, but the changes were rung upon it by prosecutor and judge. Almost at the opening of the trial the People began the endeavor to load the defendant down with the burden of an evil character. He was to be put before the jury as a man of murderous disposition. To that end they were allowed to prove that at the time of the encounter and at that of Ms anest he had in his apartment, kept there in a radio box, three pistols and a tear-gas gun. Theie was no claim that he had brought these weapons out at the time of the affray, no claim that with any of them he had discharged the fatal shot. He could not have done so, for they were all of different calibre. The end to be served by laying the weapons before the jury was sometMng very different. The end was to bring persuasion that here was a man of vicious and dangerous propensities, who because of those propensities was more likely to kill with deliberate and premeditated design than a man of ineproachable life and amiable manners. Indeed, tMs is the very ground on wMch the introduction of the evidence is now explained and defended. The District Attorney tells us in Ms brief that the possession of the weapons characterized the defendant as “ a desperate type of criminal,” a person criminally inclined.” The dissenting opinion, if it puts the argument less bluntly, leaves the substance of the thought unchanged. Defendant was presented to the jury as a man having dangerous weapons in Ms possession, making a selection therefrom and going forth to put into execution Ms threats to kill.” The weapons were not brought by the defendant to the scene of the encounter. They were left in Ms apartment where they were incapable of harm. In such circumstances, ownersMp of the weapons, if it has any relevance at all, has relevance only as indicating a general disposition to make use of them thereafter, and a general disposition to make use of them thereafter is without relevance except as indicating a desperate type of criminal,” a criminal affected with a murderous propensity.

We are asked to extenuate the error by calling it an incident: what was proved may have an air of innocence if it is styled the Mstory of the crime. The virus of the ruling is not so easily extracted. Here was no passing reference to something casually brought out in the narrative of the killing, as if an admission had been proved against the defendant that he had picked one weapon out of several. Here in the forefront of the trial, immediately following the statement of the medical examiner, testimony was admitted that weapons, not the instruments of the killing, had been discovered by the police in the apartment of the killer; and the weapons with great display were laid before the jury, marked as exhibits, and thereafter made the subject of animated argument. Room for doubt there is none that in the thought of the jury, as in that of the District Attorney, the tendency of the whole performance was to characterize the defendant as a man murderously inclined. The purpose was not disguised. From the opening to the verdict, it was flaunted and avowed.

If a murderous propensity may be proved against a defendant as one of the tokens of his guilt, a rule of criminal evidence, long believed to be of fundamental importance for the protection of the innocent, must be first declaied away. Fundamental hitherto has been the rule that character is never an issue in a criminal prosecution unless the defendant chooses to make it one (Wig-more, Evidence, vol. 1, §§ 55, 192). In a very real sense a defendant starts bis life afresh when he stands befoie a jury, a prisoner at the bar. There has been a homicide in a public place. The killer admits the killing, but urges self-defense and sudden impulse. Inflexibly the law has set its face against the endeavor to fasten guilt upon him by proof of character or experience predisposing to an act of crime (Wigmore, Evidence, vol. 1, §§ 57, 192; People v. Molineux, 168 N. Y. 264). The endeavor has been often made, but always it has failed. At times, when the issue has been self-defense, testimony has been admitted as to the murderous propensity of the deceased, the victim of the homicide (People v. Druse, 103 N. Y. 655; People v. Rodawald, 177 N. Y. 408; Wigmore, Evidence, vol. 1, §§ 63, 246), but never of such a propensity on the part of the killer. The principle back of the exclusion is one, not of logic, but of policy (Wigmore, vol. 1, §§ 57, 194; People v. Richardson, 222 N. Y. 103, 109, 110). There may be cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. The natural and inevitable tendency of the tribunal ■—■ whether judge or jury ■—is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge (Wigmore, Evidence, vol. 1, § 194, and cases cited).

A different question would be here if the pistols had been bought in expectation of this particular encounter. They would then have been admissible as evidence of preparation and design (Wigmore, Evidence, vol. 1, § 238; People v. Scott, 153 N. Y. 40). A different question would be here if they were so connected with the crime as to identify the perpetrator, if he had dropped them, for example, at the scene of the affray (People v. Hill, 198 N. Y. 64). They would then have been admissible as tending to implicate the possessor (if identity was disputed), no matter what the opprobrium attached to his possession. Different, also, would be the question if the defendant had been shown to have gone forth from the apartment with all the weapons on his person. To be armed from head to foot at the very moment of an encounter may be a circumstance worthy to be considered, like acts of preparation generally, as a proof of preconceived design. There can be no such implication from the ownership of weapons which one leaves behind at home.

The endeavor was to generate an atmosphere of professional criminality. It was an endeavor the more unfair in that, apart from the suspicion attaching to the possession of these weapons, there is nothing to mark the defendant as a man of evil life. He was not in crime as a business. He did not shoot as a bandit shoots in the hope of wrongful gain. He was engaged in a decent calling, an optician regularly employed, without criminal record, or criminal associates. If his own testimony be true, he had gathered these weapons together as curios, a collection that interested and amused Mm. Perhaps his explanation of their ownership is false. There is nothing stronger than mere suspicion to guide us to an answer. Whether the explanation be false or true, he should not have been driven by the People to the necessity of offering it. Brought to answer a specific charge, and to defend himself against it, he was placed in a position where he had to defend Mmself against another, more general and sweeping. He was made to answer to the charge, pervasive and poisonous even if insidious and covert, that he was a man of murderous heart, of criminal disposition.

The argument is made that the evidence, if incompetent when admitted, became competent thereafter when the defendant took the stand. By taking the stand he subjected Mmself like any other witness to cross-examination designed to shake belief in Ms veracity by exMbiting Ms ways of life (People v. Webster, 139 N. Y. 73, 84; People v. Hinksman, 192 N. Y. 421, 433). Cross-examination brought out the fact that he had no license for a pistol. That fact disclosed, the prosecution was at liberty to prove the possession of the weapons in an attempt to impeach Ms credibility, since possession was a felony. All this may be true, but the evidence was not offered or admitted with such an end in view. It was received at a time when there was notMng to show that the defendant was without a license, and without suggestion that any such evidence would be brought into the case thereafter. The jury were not told that the possession of the weapons had significance only in so far as possession without a license had a tendency to cast a shadow on the defendant’s character and so to impair the faith to be given to his word (cf. Wigmore, Evidence, vol. 2, § 981, el seq.; People v. De Garmo, 179 N. Y. 130, 134, 135). They were told in effect through the whole course and tenor of the trial that inespective of any license, the mere possession of the weapons was evidence of a murderous disposition, which, apart from any bearing upon the defendant’s ci edibility as a "witness, was evidence of guilt. Here is no case of a mere technical departure from the approved older of pi oof. If the evidence had been received for the purpose of impeachment merely, the People would have been bound by the answer of the witness as to the time and purpose of the purchase, and would not have been permitted to contradict him (Stokes v. People, 53 N. Y. 164, 176; People v. De Garmo, supra). Here is a case where evidence offered and received as probative of an essential element of the crime, used for that purpose, and for no other, repeatedly throughout the trial, is now about to be viewed as if accepted at a later stage and accepted for a purpose unmentioned and unthought of. This is not justice in accordance with the forms of law. The practice of calling out evidence for one purpose, apparently innocent, and using it for another, which is illegal, is improper; and, if it is clear and manifest that the avowed object is colorable merely, its admission is error ” (Coleman v. People, 55 N. Y. 81, 88). Even more plainly is it a perversion to call out evidence for an avowed object manifestly illegal, and use it later on appeal as if admitted at another stage in aid of another pui pose innocent and lawful.

The judgment of conviction should be reversed, and a new trial ordeied.

Pound, J.

(dissenting). The indictment herein accuses defendant of the crime of murder in the first degree committed in Kings county on November 10, 1929, by shooting Frank Coppola with a revolver. That defendant did shoot and kill Coppola is admitted. The jury was justified on the evidence in finding that he did so from a deliberate and premeditated design to effect death. The proofs tend to establish that defendant, aged twenty-four, and his seventeen-year-old wife Fluff ” had attended a dance at a dance hall; that they left for their home at 105 Devoe street about midnight; that defendant dropped behind his wife to buy some newspapers; that she went on a block ahead of him when she arrived at Devoe street; that on the opposite side of the street in the middle of the block four young men, including Coppola, were at work repairing an automobile; that Mrs. Zackowitz was either insulted ” by some remarks of one of them or thought she was; that she upbraided them; that when defendant came up to his wife she told him that she had been insulted ” and they crossed the street and defendant with much profanity threatened them that “ if they did not get out of there in five minutes he would come back and bump them all off; ” that defendant returned to the scene armed with a twenty-five calibre automatic pistol; that he kicked Coppola who bent over; that as Coppola got up defendant drew his pistol and fired one shot; that Coppola was struck in the lung and heart and, as a result of the shot, died soon afterwards; that defendant then met his wife on the .street and they took a taxi-to Manhattan; that defendant was arrested on or about January 7, 1930; that he made a confession in which he sought to defend the act of killing by saying that Coppola threatened him with a monkey wrench and that he did not realize that he had shot him; that he got the gun at his home and went back to ask them to apologize; that he took the gun to protect himself because they were four guys; ” that he had been drinking, was a little excited but not drunk; that he knew what he was doing.

On the trial, defendant and his wife testified. Defendant said in substance that he had carried the .25 automatic to the dance and had it with him on the occasion of the first encounter; that he talked with the men; that they denied that they had insulted his wife; that he thought it was not worth quarreling about and left them; that he did not threaten to bump them off; that when they went home his wife in tears and evident distress reluctantly told him that they had made a proposition to her which was understood as an offer of two dollars for sexual intercourse; that he went back to demand an apology; that he kicked at Coppola but did not hit him; that Coppola threatened him with a monkey wrench; that he was frightened; that he did not intend to kill Coppola but drew the pistol to frighten him; that the discharge of the gun was an accident; that he was partly intoxicated; that he had no permit to carry a gun.

The court submitted to the jury the various degrees of felonious homicide, and the law as to justifiable and excusable homicide and instructed them particularly as to the law of killing in self-defense. On the theory that defendant repudiated intoxication as a partial defense, tending to reduce the degree of the crime, the court did not instruct the jury on the question of intoxication. (Penal Law, § 1220.) In the circumstances, the judgment should not be reversed on this ground as the defendant did not make the question a serious one. (People v. Van Zandt, 224 N. Y. 354; People v. Koerber, 244 N. Y. 147, 150.) At the conclusion of the charge defendant’s counsel said: _ j

“ Mr. Bubenstein: The defendant excepts to the entire charge, and specifies as his ground the manner in which the charge was delivered, the inflection of your Honor’s voice, the use of your hands, your eyebrows — the pauses and other mannerisms. No requests.”

Unfortunately, perhaps, we have no record of the judge’s manner of delivery. The point is not pressed on the appeal.

The questions of intent and deliberation and premeditation were for the jury. Their verdict is amply sustained by the evidence and the conviction should be affirmed without regard to technical errors or defects which have not prejudiced the substantial rights of the defendants.” (Code Crina. Pro. § 764.) “ But the question of substantial right is not the abstract question of guilt or innocence. A guilty man is entitled to a fair trial. * * * Error is substantial when we can say that it tended to influence the verdict.” (People v. Sobieskoda, 235 N. Y. 411.) We must, therefore, give careful heed to one matter which is brought to our attention on this appeal without regard to the convincing character of the People’s evidence.

Nearly two months after the killing of Coppola, the police entered defendant’s home in connection with his arrest and found there concealed in a box in the radio three revolvers and a tear-gas bomb, together with a supply of cartridges suitable for use both in the revolvers and the bomb. Defendant had in his confession, which was received without objection, admitted that he had these weapons in his possession at the time of the killing. The twenty-five calibre automatic was not among them. Defendant says that he threw it away after he shot Coppola. The People, as a part of their principal case, introduced these articles in evidence over defendant’s objection and exception. This is the only ruling by which the question of error in law is presented on this appeal. No objection was made to the summation by the District Attorney nor to any specific instructions by the court. The possession of these dangerous weapons was a separate crime. (Penal Law, § 1897.) The broad question is whether it had any connection with the crime charged. The substantial • rights of the defendant must be protected. Where the penalty is death, we may grant a new trial if justice requires it, even though no exception was taken in the court below. (Code Grim. Pro. § 528.)

The People may hot prove against a defendant crimes not alleged in the indictment committed on other occasions than the crime charged as aiding the proofs that he is guilty of the crime charged unless such proof tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. These exceptions are stated generally and not with categorical precision and may not be all-inclusive. (People v. Molineux, 168 N. Y. 264; People v. Pettanza, 207 N. Y. 560; People v. Moran, 246 N. Y. 100, 106.) None of them apply here nor were the weapons offered under an exception to the general rule. They were offered as a part of the transaction itself. The accused was tried only for the crime charged. The real question is whether the matter relied on has such a connection with the crime charged as to be admissible on any ground. If so, the fact that it constitutes another distinct crime does not render it inadmissible. (Commonwealth v. Snell, 189 Mass. 12, 21.) The rule laid down in the Molineux case has never been applied to prevent the People from proving all the elements of the offense charged, although separate crimes are included in such proof. Thus in this case no question is made as to the separate crime of illegal possession of the weapon with which the killing was done. It was a part of the history of the case ” having a distinct relation to and bearing upon the facts connected with the killing. (People v. Governale, 193 N. Y. 581; People v. Rogers, 192 N. Y. 331; People v. Hill, 198 N. Y. 64; People v. Rodawald, 177 N. Y. 408.)

As the District Attorney argues in his brief, if defendant had been arrested at the time of the killing and these weapons had been found on his person, the People would not have been barred from proving the fact, and the further fact that they were nearby in his apartment should not preclude the proof as bearing on the entire deed of which the act charged forms a part. Defendant was presented to the jury as a man having dangerous Weapons in his possession, making a selection therefrom and going forth to put into execution his threats to kill; not as a man of a dangerous disposition in general, but as one who, having an opportunity to select a weapon to carry out his threats, proceeded to do so.

If the confession was admissible on this point, the weapons themselves were admissible in evidence. If the evidence corroborates the confession and several crimes having “ an obvious relation to the crime charged in the indictment ” are referred to in the same confession, both the entire confession and the corroborative evidence are admissible. (People v. Rogers, supra, p. 352.) The relation between the possession of the weapons and the crime charged tended to corroborate the confession as a whole. The sequence of events made the chain incomplete without this important link.

The case would have been quite different if the weapons came into defendant’s possession after the killing. The proof would then be of separate crimes unconnected with the killing and its admission reversible error under the Molineux Case (supra).

It is urged that defendant may have been half-drunk, infuriated, frightened, impulsive and measurably irresponsible; that he should not have been convicted of murder in the first degree; that the proof of possession of the weapons prejudiced the jury against him. If, as we have held, the proof was competent, the jury was free to give it such weight as it deserved. On the other band, if it was incompetent, was the error substantial enough to call for the reversal of his conviction? Defendant presented his side of the case to the jury. He gave his account of the weapons and how he came by them, which was consistent with innocent purpose on his part. Admittedly he did have an argument with Coppola and his fellows, did go home, did return armed and did quarrel and kill. His answer is that the killing was accidental. How can we say with confidence in the circumstances of this case that the evidence, even if technically objectionable, so tended to influence the' jury against him that justice requires a new trial? ” (Code Crim. Pro. § 528.) . While it is not inconceivable that the result might have been otherwise without this evidence (People v. Slover, 232 N. Y. 264, 267), it is unlikely that it turned the minds of the jury from a lesser degree of crime to the disadvantage of accused. In the circumstances of this case, whether he had one weapon or a dozen would not materially change the nature of his offense. The proof merely darkened that which was black enough when painted by his own brush.

The judgment of conviction should be affirmed.

Lehman, Kellogg and O’Brien, JJ., concur with Cardozo, Ch. J.; Pound, J., dissents in opinion in which Crane and Hubbs, JJ., concur.

Judgment reversed, etc.


text:
    Joseph Woloszynowski, as Administrator of the Estate of Leo Woloszynowski, Deceased, Respondent, v. The New York Central Railroad Company, Appellant.

      (Argued June 13, 1930;
    decided July 8, 1930.)

      War nick J. Kernan and Willis D. Morgan for appellant.
    There was no actionable negligence on the part of defendant, and the refusal of the trial court to nonsuit was error. (Nelson v. Lake Shore & M. S. Ry. Co., 185 App. Div. 174.) Intestate was guilty of negligence, as matter of law, which contributed to the accident. (Nelson v. Lake Shore & M. S. Co., 185 App. Div. 174.) The case is not one for the application of the doctrine of the last clear chance. (McKeon v. Steinway Ry. Co., 20 App. Div. 601; Austin v. New Jersey Steamboat Co., 43 N. Y. 75; Weitzman v. Nassau Electric R. R. Co., 33 App. Div. 585; Johnson v. Interborough Rapid Transit Co., 192 App. Div. 639; Sweeney v. New York Steam Co., 15 Daly, 312; Bragg v. Central New England Ry. Co., 228 N. Y. 54; Gibbs v. Ill. Cent. R. R. Co., 123 N. W. Rep. 186.)

      Arthur J. Foley for respondent.
    The question of def end-ant’s negligence was properly one of fact for the jury to determine. (Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y. 234; Spitzer v. N. Y. C. R. R. Co., 211 App. Div. 334; Pruey v. N. Y. C. & H. R. R. R. Co., 41 App. Div. 158; 166 N. Y. 616; Martin v. Herzog, 228 N. Y. 164.) The doctrine of last clear chance should be applied in this case. (Bragg v. Central N. E. Ry. Co., 228 N. Y. 54; McKeon v. Steinway R. Co., 20 App. Div. 601; Weitzman v. Nassau Electric R. R. Co., 33 App. Div. 585; Johnson v. Interborough Rapid Transit Co., 192 App. Div. 639; Austin v. New Jersey Steamboat Co., 43 N. Y. 76; McDade v. International Ry. Co., 235 N. Y. 11; Bisogno v. N. Y. Rys. Co., 194 App. Div. 316; Spitzer v. N. Y. C. R. R. Co., 211 App. Div. 332.)
   Cardozo, Ch. J.

The action is one to recover damages resulting in death.

The boy struck by the defendant’s engine went upon the tracks after the lowering of the gates, and stood there in the path of the train and within the overhang of the engine without looking to the right or left.

He was without privilege to be there (Nelson v. Lake Shore & M. S. Ry. Co., 185 App. Div. 174; Hatch v. Lake Shore & M. S. Ry. Co., 219 N. Y. 650; Keller v. Erie R. R. Co., 183 N. Y. 67), for the defendant in effect had given notice to him and to all others that until the raising of the gates the exclusive use of the crossing would be required for the trains.

In such circumstances a recovery in favor of the plaintiff, if sustainable at all, must rest upon the doctrine of the last clear chance.”

The doctrine of the last clear chance, however, is never wakened into action unless and until there is brought home to the defendant to be charged with liability a knowledge that another is in a state of present peril, in which event there must be reasonable effort to counteract the peril and avert its consequences (Wright v. Union Ry. Co., 224 App. Div. 55; 250 N. Y. 526). Knowledge may be established by circumstantial evidence, in the face even of professions of ignorance (cf. Bragg v. Central New England Ry. Co., 228 N. Y. 54), but knowledge there must be, or negligence so reckless as to betoken indifference to knowledge.

In the case at hand there is no reasonable basis for a finding that the boy was seen until he was within 160 or 200 feet of the defendant’s engine. The fireman and brakeman, who then saw him, shouted a warning to the engineer, who at once applied the air brakes, but too late. The argument for the plaintiff is that in such an emergency the fireman and brakeman, instead of shouting to another, should have jumped across the cab and applied the brakes themselves, with the saving of some precious seconds. Probably such a course would have been wiser than the one followed, though it would have involved the assumption of duties which in the business of railroading are committed to the engineer alone. At most, however, there was an error of judgment in an emergency so sudden and immediate that seconds made a difference (Maguire v. Barrett, 223 N Y. 49, 55; Lewis v. Long Island R. R. Co, 162 N. Y. 52, 62). Brakeman and fireman did not stand by inert and callous, unwilling to do anything. They did the thing that suggested itself in the excitement of the moment as appropriate and natural. In the light of the wisdom that follows the event, we can see that the outcome might have been better if they had done something else. That is not enough (Rider v. Syracuse R. T. Ry. Co., 171 N. Y. 139, 152).

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgments reversed, etc.


author: Hubbs, J.

text:
    Martin L. O’Hara, Appellant, v. Bronx Consumers Ice Company, Respondent.

      (Argued June 12, 1930;
    decided July 8, 1930.)

      Samuel B. Seidel and Robert M. Gluck for appellant.
    Plaintiff’s purchasers were ready, able and willing to buy on defendant’s terms. Because of defendant’s failure to disclose the restriction, the purchasers were justified, irrespective of any contemplated use of the property, in refusing to enter into the contract. (Goldstein v. Rosenberg, 191 App. Div. 492; 232 N. Y. 535; Bull v. Burton, 227 N. Y. 101; Isaacs v. Schmuck, 245 N. Y. 77; Rowland v. Miller, 139 N. Y. 93; Reis Co. v. Zimmerli, 224 N. Y. 351 ; Gilder v. Davis, 137 N. Y. 504; Davidson v. Stocky, 202 N. Y. 423; Smith v. Peyrot, 201 N. Y. 210; Putter v. Bergher, 95 App. Div. 62; Holman v. Patten, 227 N. Y. 22; Finocchiaro v. Kipferl, 216 App. Div. 600.) The contemplated use of the property did not obviate defendant’s misrepresentation of title. (Benedict v. Pincus, 134 App. Div. 555; Condict v. Cowdrey, 139 N. Y. 273; Baumann v. Nevins, 52 App. Div. 290; Hall v. Schiff, 179 App. Div. 699; 230 N. Y. 554; Sullivan v. Frazier, 40 App. Div. 288.)

      Clarence G. Bachrach, Herman S. Bachrach, William H. Mansfield and Adolph E. Gutgsell for respondent.
    The plaintiff’s proof negatives the contention that the purchaser was willing to enter into a contract upon the terms of plaintiff’s employment. (Wood v. Duff-Gordon, 222 N. Y. 88; Goldstein v. Rosenberg, 232 N. Y. 535; McHenry v. Jewett, 90 N. Y. 58; Wittwer v. Hurwitz, 216 N. Y. 259.) Plaintiff would have no right to recover herein even if the contract had been signed and delivered. (Born v. Schrenkeiser, 110 N. Y. 55; Benedict v. Pincus, 109 App. Div. 20; Ward v. Zborowski, 31 Misc. Rep. 66; Bennett v. Egan, 3 Misc. Rep. 421; Condict v. Cowdrey, 139 N. Y. 273; Walsh v. Gay, 49 App. Div. 50; Hall v. Schiff, 179 App. Div. 699; Howard Winship, Inc., v. Meyer, 129 Misc. Rep. 149; Clark v. Bonner, 217 Mass. 201; Crockett v. Grayson, 98 Va. 354.)
   Hubbs, J.

At the trial the plaintiff recovered a verdict for commissions earned as a broker for securing purchasers of real property owned by the defendant. Under the charge of the learned trial court the jury has found that the plaintiff was employed by the defendant to secure a purchaser for the real property in question for the sum of $66,000; that he produced purchasers who were ready, willing and able to purchase the property at that price on the terms specified. At the time the plaintiff was employed, the defendant’s president stated to him that the property was free from restrictions except the New York City Zoning Ordinance. He said there were no so-called private restrictions.”

The defendant caused a proposed contract of sale to be prepared. The parties met at the office of the defendant’s attorney to execute it. It then appeared for the first time that the premises were incumbered with a restrictive covenant which provided that the owner of the property will not carry on or permit to be carried on upon said premises any noxious, offensive or dangerous trade or business.”

The prospective purchasers were present with a check prepared to make the down payment specified by the defendant and to execute a contract of purchase in accordance with the terms of sale given to the broker. They refused to go on with the contract with the restrictive covenant in it. At that time the plaintiff had earned his commission. He had produced purchasers ready, able and willing to execute and carry out a contract of purchase of the premises. The defendant had breached its contract with the plaintiff. It had represented that there were no restrictive covenants which constituted an incumbrance upon the property when in fact there existed such an incumbrance. It thereby prevented the sale which had been arranged by the plaintiff and was hable to him for the agreed commission. (Davidson v. Stocky, 202 N. Y. 423; Mooney v. Elder, 56 N. Y. 238; Reis Co. v. Zimmerli, 224 N. Y. 351; Gilder v. Davis, 137 N. Y. 504.)

The plaintiff having procured customers ready, able and willing to purchase upon the terms stated by the defendant, could not be deprived of his commission by the imposition of new terms and by the tendering of a title with restrictive covenants when its president had expressly stated to plaintiff that the title was free from all restrictions. (Davidson v. Stocky, supra.)

The covenant in question constituted a restriction on the title which justified the prospective purchasers in refusing to go on with the contract. The title was unmarketable. (Bull v. Burton, 227 N. Y. 101; Isaacs v. Schmuck, 245 N. Y. 77.)

At the time when plaintiff informed the defendant’s president that he had customers for the property, he told him that the customers desired to build a public garage upon the premises. At the meeting in the office of the defendant’s attorney, when plaintiff and his customers were first informed of the restriction upon the title to the property, an effort was made to adjust the matter so that the sale might go through. The proposed purchasers offered to take the property “ Provided that the Title Guarantee and Trust Company will insure that the premises may be used for the erection and maintenance of a public garage.”

The title company declined to give an absolute insurance for the erection and maintenance of a public garage upon the premises and stated that the policy if issued would contain an exception of the covenant in question. Thereafter, the proposed purchasers refused to go on with the contract because the defendant offered a contract materially different in its terms from the terms originally specified.

It is urged by the respondent that the building of a public garage on the premises would not offend against the covenant and as the proposed purchasers desired the premises for that purpose, the covenant did not as to them constitute an incumbrance which justified them in refusing to enter into the contract and that, therefore, the plaintiff had not produced a customer ready, able and willing to purchase upon the terms specified. The Appellate Division accepted that view in reliance upon the case of Goldstein v. Rosenberg (191 App. Div. 492; affd., 232 N. Y. 535).

Assuming, without deciding, that the case relied upon establishes the building of a public garage upon the premises would not offend the restrictive covenant under the facts in this case, nevertheless, we are of the opinion that it was an incumbrance which justified the prospective purchasers in refusing to go on with the contract. If the purchasers had signed a contract of purchase which stated that the premises were free from all restrictions and thereafter refused to complete the purchase because of the restrictive covenant there can be no doubt that they would have been justified in so doing. (Bull v. Burton, supra; Isaacs v. Schmuck, supra.)

The fact that they had expressed an intention to use the premises for a public garage would not have required them to accept an unmarketable, incumbered title. Their contract would have been for a perfect title, and they could not be compelled to accept an imperfect one. Under such circumstances, the broker would be entitled to his commissions.

The fact that a sale is not carried out because the owner cannot furnish a marketable title does not deprive a broker of his commissions especially when the owner has represented to the broker that he has a good unrestricted title. (Smith v. Peyrot, 201 N. Y. 210; Holman v. Patten, 227 N. Y. 22; Van Vliet & Place, Inc., v. Gaines, 249 N. Y. 106.)

It is urged by the respondent that appellant is not entitled to recover commissions because the proposed contract agreed to by the parties provided that “No obligation shall rest on the purchaser to complete this contract unless a permit be granted by the authorities of the city * * * which said permit shall permit the erection and maintenance on these premises of a public garage.”

The argument is that the contract did not compel the proposed purchasers to carry out the proposed contract absolutely and in any event. The jury has found, however, that the clause of the proposed contract correctly embodied the agreement which the defendant by its president stated to the plaintiff that it was willing to enter into. The plaintiff testified: “ Q. You also testified that the title was to be closed 30 days after the happening of some event. What was that? A. Well, that was getting the permission from the Bureau of Standards and Appeals. Mr. Reinhardt said he would insure that; he said there would be no trouble on that. That is why he would make a conditional contract, and he would not tie up his money only he said he was certain it would go through.”

The plaintiff, therefore, produced purchasers willing to enter into a contract of purchase on the exact terms specified by the defendant. He accomplished what he undertook to do. He was not required to do more. The defendant was at liberty to contract to sell the property upon any terms it desired. The defendant voluntarily assumed the risk that the proposed purchasers might not be able to secure the desired permit.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur.

Judgment accordingly.


author: Per Curiam.

text:
    Harold L. Loud, Respondent, v. Walter Clifford, Appellant, Impleaded with Others. August B. Loud, Respondent, v. Walter Clifford, Appellant, Impleaded with Others.
    (Argued June 11, 1930;
    decided July 8, 1930.)

      Neil P. Cullom and James E. Freehill for appellant.
    The conclusion of law of the trial court dismissing the complaint against the appellant was correct and should, therefore, be reinstated. (Ritzwoller v. Lurie, 225 N. Y. 464; Taylor v. Markus, 224 App. Div. 865; Hill v. International Products Co., 220 N. Y. Supp. 711.)

      Ralph Royall and James G. Holland for respondents.
    It is proper in an equitable suit for rescission for the court to award a personal judgment against the individual responsible for making the false representations. (Mack v. Latta, 178 N. Y. 525; Bosley v. National Machine Co., 123 N. Y. 550; Lehman-Charley v. Bartlett, 135 App. Div. 674; 202 N. Y. 524; Ressler v. Samphimor Holding Corp., 201 App. Div. 344; Levan v. American Safety Table Co., 222 App. Div. 110; Cawthra v. Stewart, 59 Misc. Rep. 38; Wendt v. Fisher, 243 N. Y. 439; Byrnes v. Owen, 243 N. Y. 211; Copeland v. Hugo, 221 App. Div. 779; Continental Ins. Co. v. Equitable Trust Co., 127 Misc. Rep. 50; Alexander City Bank v. Equitable Trust Co., 223 App. Div. 24; Clark v. Kirby, 243 N. Y. 295; Keskal v. Modrakowski, 249 N. Y. 406; Lightfoot v. Davis, 198 N. Y. 261.)
   Per Curiam.

This is an action to rescind a purchase of corporate stock upon the ground that the sale was brought about by fraud on the part of the defendant corporation and the individual defendant who was the promoter, president and principal stockholder thereof. It is contended that the judgment against the individual defendant cannot be sustained.

Appellant relies upon a statement contained in the opinion in the case of Ritzwoller v. Lurie (225 N. Y. 464), which it is urged overruled by implication the decision in the case of Mack v. Latta (178 N. Y. 525).

The opinion in the Mack case was concurred in by all but one of the members of the court. It was a carefully considered opinion and deliberately established the principle in this State that individual officers of a corporation may be joined in an equity action to rescind the purchase of corporate stock induced by the fraud of the corporation and such officers, and to recover the amount paid therefor. It has been repeatedly cited and followed by this court and other courts of the State.

It was not intended in the decision of the Bitzwoller case to overrule it and in so far as the opinion in that case may be so construed it is disapproved. The case of Mack v. Latta is still the law of the State.

The judgment in each action should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Kellogg, O’Brien and Hubbs, JJ., concur; Lehman, J., not sitting. Judgments affirmed.