text:
    Gabriel de Laurent, as Administrator of the Estate of Edward A. de Laurent, Deceased, Appellant, v. Emma B. Townsend, Respondent.
    (Argued May 26, 1926;
    decided June 8, 1926.)
    Evidence — trial — decedent’s estate — personal transaction between witness and decedent — rule as to waiver found in section 347 of Civil Practice Act and not elsewhere — action by administrator to recover property of decedent — prior examination of defendant, in discovery proceedings not prosecuted to a decision, does not open door so as to permit her to testify to personal transaction with decedent — testimony incompetent in absence of act of waiver by administrator.
    1. Prior to the year 1914, section 2709, Code of Civil Procedure, specifically provided that when a witness is examined in discovery proceedings in Surrogate’s Court, all objections under section 829, Code of Civil Procedure, now section 347, Civil Practice Act, to his testimony as to the same transaction in future litigation were waived. When this section was re-enacted as section 2676, Code of Civil Procedure, now section 206, Surrogate’s Court Act, this provision was eliminated. The rule as to waiver is, therefore, to be found in section 829, Code of Civil Procedure, now section 347, Civil Practice Act, and not elsewhere.
    2. Where, therefore, prior to the commencement of this action by an administrator to recover property belonging to his intestate in his lifetime, the defendant had been examined in Surrogate’s Court in discovery proceedings but nothing further done in that court, testimony on the trial of this action, by defendant as to a personal transaction with deceased and as to an oral gift made by him to her of the property in question, is incompetent where the administrator has neither testified in his own behalf, examined defendant as to such transaction, nor offered in evidence the testimony of the defendant taken in the discovery proceeding.

      de Laurent v. Townsend, 214 App. Div. 493, reversed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 2, 1925, unanimously affirming a judgment in favor of defendant entered upon a verdict directed by the court.

      Louis H. Levin and Joseph Steinberg for appellant.
    The defendant was incompetent to testify as to transactions had with deceased, and the provisions of section 347 of the Civil Practice Act were not waived even though the plaintiff instituted discovery proceedings at which the defendant was examined with reference to the property in question. (Matter of Heinze, 224 N. Y. 1; Matter of Silverman, 87 Misc. Rep. 571; Matter of O’Brien v. Baker, 65 App. Div. 282; Matter of Carney, 119 Misc. Rep. 104; 208 App. Div. 734; Bambauer v. Schleider, 176 App. Div. 562; Farmers L. & T. Co. v. Wagstaff, 194 App. Div. 757; Rogers v. Rogers, 153 N. Y. 343; Kramer v. Kramer, 80 App. Div. 20; Cudlip v. N. Y. Even. Journal, 180 N. Y. 85.) The admissible evidence was insufficient to establish the delivery of the property in question to the defendant, or the giving thereof to her with intent to pass title thereto in preesenti, or to establish the delivery of the writings to the defendant prior to the decedent’s death. (Matter of Housman, 224 N. Y. 525; Matter of Canfield, 176 App. Div. 554; Matter of Perry, 129 App. Div. 587; Roberge v. Bonner, 185 N. Y. 265; McKeon v. Van Slyck, 223 N. Y. 392; Matter of Van Alstyne, 207 N. Y. 299.)

      Edward A. Kenney and Leonard Acker for respondent.
    The defendant was entitled to a direction of a verdict even without the support of her own testimony. (Hirst v. Auer, 146 N. Y. 13; Gilkinson v. Third Avenue R. R. Co., 47 App. Div. 472; Matter of Bunt, 96 Misc. Rep. 114; Matter of Tipple, 118 Misc. Rep. 430; 202 App. Div. 739; Matter of Glascow’s Estate, 201 N. Y. Supp. 541; Judson v. Hatch, 171 App. Div. 246; Matter of Canfield, 176 App. Div. 554; Claflin v. Meyer, 75 N. Y. 260; Goldstein v. Pullman Co., 220 N. Y. 249, 554; Singer v. Knott, 237 N. Y. 110; Griffin v. Long Island R. R. Co., 101 N. Y. 348; Cook v. Dowling, 6 Misc. Rep. 271.) There was no error in permitting the defendant to testify as to her transactions with the deceased, as the plaintiff had opened the door by examining her in discovery proceedings in the Surrogate’s Court. (May v. Curley, 113 N. Y. 575; Cole v. Sweet, 187 N. Y. 488; Matter of Glasgow, 121 Misc. Rep. 613; Matter of Benioff, 73 Misc. Rep. 493.)
   Pound, J.

During his lifetime Edward A. de Laurent was the owner ¡.and in possession of certain French and Italian bonds and certain jewelry. He died in March, 1922. Neither the bonds nor the jewelry were among his effects. The plaintiff having been appointed administrator of the estate, the defendant was directed to appear under sections 205 and 206 of the Surrogate’s Court Act to give information in regard thereto. She submitted an answer alleging that she was entitled to the property in question and was then examined. No further proceedings were taken before the surrogate but this action was begun in the Supreme Court for the recovery of the property. The issue was whether before his death the deceased gave the property in question to the defendant. On the trial, the defendant testified over objection and exception to a personal transaction with the deceased and to an oral gift made by him in the course of these transactions to her of the property in question and of its delivery to her. In this she was corroborated by her daughter and three letters were offered in evidence by her signed by the deceased in each of. which he stated that at his death he gave to the defendant the bonds in question and the jewelry. She and her daughter also testified that from 1920 she had had possession of the bonds and from 1921 of the jewelry. Witnesses for the plaintiff had testified, however, not only that long after this time, a ring, the most valuable piece of jewelry in question, had been seen in the possession of the deceased, but that immediately after deceased’s death the defendant had denied on one occasion that she knew anything about the bonds or jewelry and that on another occasion she said that the ring had been given back by the deceased to some friend of his. At the close of the evidence a ■motion was made to dismiss the complaint. The plaintiff was asked what issues there were for the jury and indicated several. The defendant then moved for the direction of a verdict. This motion was granted, but no exception was taken by the plaintiff.

Prior to the year 1914, section 2709, Code of Civil Procedure, specifically provided that when a witness is examined in discovery proceedings in Surrogate’s Court, all objections under section 829, Code of Civil Procedure, ■now section 347, Civil Practice Act, to his testimony as to the same transaction in future litigation were waived. When this section was re-enacted as section 2676, Code .of Civil Procedure, now section 206, Surrogate’s Court Act, this provision was eliminated. While we may speculate that this was done because the Surrogate’s Court was then vested with jurisdiction to try the issue of title and that it was anticipated that no other or future litigation would follow, the obdurate fact remains that it was repealed. The rule as to waiver is, therefore, to be found in section 829, Code of Civil Procedure, now section 347, Civil Practice Act, and not elsewhere. If defendant had proceeded to the trial of the issue of title in Surrogate’s Court, she would have been competent to testify in her own behalf after the plaintiff had opened the door by examining her as to the same transactions. If on the trial of this action, plaintiff had offered in evidence the testimony of defendant taken in the discovery proceedings, defendant would have become a competent witness to the same transactions. But' defendant must stand on the provisions of section 347, Civil Practice Act. On the the trial of the action she shall not be examined in her own behalf or interest concerning a personal transaction or communication between herself and the deceased. The administrator may waive this provision by testifying in his own behalf or by examining defendant on the trial of the action as to such transaction. He did neither. Therefore, the evidence of defendant was incompetent.

The evidence was prejudicial. While we may not review the direction of a verdict in favor of defendant in the absence of an exception, we may properly indicate for the guidance of a further trial, that the evidence for the defense without her testimony did not point so conclusively to a gift as to require the court to direct a verdict for the defendant.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v. Pasquale Colantone, Respondent.
    Crimes — murder in second degree — trial — evidence — testimony of good character matter of substance which must be considered by jury — erroneous exclusion of testimony of instructor and attendants at school defendant attended, and of army and post comrades as to his reputation — rule confining testimony to reputation in community where defendant resided too narrow.
    1. Evidence of good character is a matter of substance, not of form, in criminal cases, and must be considered by the jury as bearing upon the issue of guilt, even when the evidence against the defendant may be very convincing.
    2. Upon trial of an indictment, charging defendant with the crime of murder, the exclusion of testimony of an instructor and attendants at a school which defendant had attended up to the time of the killing, of a member of the company of which defendant was a member in the army, during the late war, and of a member of a post of veterans of which defendant was a member, who were called to testify as to defendant’s reputation amongst the attendants at the school, and amongst his comrades in the army and his post, constitutes reversible error. Where defendant has lived in a large city, the rule that evidenee as to Ms reputation for good character is confined to what the witnesses know of that reputation in the community where he resides, is too narrow, and testimony of those with whom he came in daily contact and with whom he had associated for years should be received. The worth and weight of evidence of good character are measured by the opportunity for obtaining a reputation, whether it be at home or abroad. The determimng factor is whether the community in wMch the defendant has lived Ms life is sufficiently large for the persons to become acquainted with Ms character and to form a general opimon of it. (People v. Van Gaasbeck, 189 N. Y. 408, 418, distinguished; Thomas v. People, 67 N. Y. 218, followed.)
    (Argued May 28, 1926;
    decided June 8, 1926.)

      People v. Colantone, 214 App. Div. 822, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 9, 1925, which reversed a judgment of the Richmond County Court rendered upon a verdict convicting the defendant of the crime of murder in the second degree and granted a new trial.

      Albert C. Fach, District Attorney (Lester L, Callan of counsel), for appellant.
    The trial court committed no error in excluding the evidence offered by the defendant as character evidence. (People v. Van Gaasbeck, 189 N. Y. 408; State v. Brady, 71 N. J. L. 360; People v. Murphy, 80 Pac. Rep. 709; State v. Frederickson, 106 Pac. Rep. 1061; State v. Kirby, 63 Pac. Rep. 752; Younger v. State, 114 N. W. Rep. 170; Williams v. United States, 168 U. S. 382; Sacrine v. United States, 38 App. Cas. D. C. 371; Lomax v. United States, 37 App. Cas. D. C. 414; People v. Thurman, 2 Ohio C. D. 466.)

      Arthur H. Cameron and Henry Klauber for respondent.
    The trial court erred in excluding the evidence offered as to the good character of the respondent. (People v. Van Gaasbeck, 189 N. Y. 408; People v. Buccufurri, 158 App. Div. 186; Thomas v. People, 67 N. Y. 218.)
   Crane, J.

On October 5, 1923, in the County Court of Richmond county, defendant was convicted of murder in the second degree. On appeal the Appellate, Division affirmed the facts and reversed upon a question of law only, two of the justices dissenting. The People come here insisting that the Appellate Division was wrong in its law, and that we should reinstate the judgment of conviction. The point of law relates to evidence of the defendants reputation which was excluded.

This court has frequently stated that evidence of good character is a matter of substance; not of form, in criminal cases, and must be considered by the jury as bearing upon the issue of guilt, even when the evidence against the defendant may be very convincing. . What weight shall be given to it is a question for the jury. (Cancemi v. People, 16 N. Y. 501; Remsen v. People, 43 N. Y. 6; People v. Conrow, 200 N. Y. 356.)

That the defendant in this case was guilty of either murder or manslaughter seems to have been proved beyond a reasonable doubt. After a quarrel upon the street in the early hours of the morning over a cigarette the defendant rushed to his house, got a pistol, came back, shot and killed one August Santora. There was evidence from which the jury might have found premeditation and deliberation and an intent to kill, or if they believed the defendant, the intent to kill as an element of crime would have been lacking. The defendant claims to have been struck by Santora and chased into his house. He came out again on invitation to fight. The pistol which he took, he did not know to be loaded, and did not intend to kill. However incredible his story may be, the elements which go to make up murder or manslaughter were for the determination of the jury.

The defendant is .an Italian about twenty-nine years of age, and at the time of the trial had been in this country about thirteen years. He enlisted and served in the late war with the Ninth Infantry and was wounded at Chateau Thierry, and later in the Argonne Forest. He was made a citizen while in the army. On account of his wounds he took up vocational training at a school located at Twenty-third street and Lexington avenue, New York city, and was there until this shooting took place. The defendant was a married man with two children.

After this evidence had been introduced, together with the defendant’s story of the shooting, an instructor and attendants at the vocational school were called. They knew the defendant and his associates of fifty or more at the school, and his reputation among these people. They had heard it discussed. A member of Company “ L ” of the Ninth Infantry, who had served with the defendant in the army, was also called. He knew the defendant’s reputation in the army and among his associates here and across the water. A member of the defendant’s post, a post for disabled men, consisting of 250 men, was also called to state what he knew of the defendant’s reputation among these associates. All this testimony was excluded on the ground that the witnesses did not know the defendant’s reputation in the community where he resided. For this reason the Appellate Division reversed the judgment and granted a new trial. The district attorney claims with some support in the authorities that the rule applied by the trial judge was right, and that reputation of a defendant’s good character is confined to what the witnesses know of that reputation in the community where he resides. We think that rule too narrow as applicable to this case. Such is the general rule and was so stated by Judge Bartlett in the opinion of this court in People v. Van Gaasbeck (189 N. Y. 408, 418). While the reputation which is receivable in evidence on the question of character must be confined to the place Of residence of the person whose character is under consideration, or the neighborhood of such residence, and the time when such reputation existed must not be too remote, we think,” etc.

The question was not squarely before the court in that case, as to whether reputation in any other place than the place of residence could be given under proper circumstances. The question apparently had come up in Thomas v. People (67 N. Y. 218), where the reputation of a prisoner in the State’s prison and among its inmates was held to be competent proof. Judge Earl spoke of the prison and its prisoners as a large community where a man can have a general character as well as elsewhere. It may be that the penal institution was considered the prisoner’s residence.

The district attorney also finds support in his quotations from 16 Corpus Juris, 582, and Underhill’s Criminal Evidence (3d ed. sec. 140); also People v. Murphy (80 Pac. Rep. 709); Williams v. United States (168 U. S. 382). He refers to statements in 2 Greenleaf (16th ed. sec. 461-d) and Sacrini v. United States (38 App. Cas., District of Columbia, 371). These authorities must all be considered in the light of the circumstances of each case. In most of them there was no occasion for departing from the general rule. But we must always keep before us the reason of our rules of evidence so as to give them practical application as was done in Thomas v. People (supra). In large municipalities like the city of New York wheré people now’ very largely dwell in tenements and apartment houses, a man may be entirely unknown in the community where he resides. It is not infrequent for a man to live in one building for years without knowing his neighbors, or anything about them. The only place where he can make a reputation, good or bad, is among his associates in his particular activities or in the personal contacts of his life where he actually lives it. In this case the defendant had spent the active part of bis life in the army, in his vocational school, among his friends and acquaintances in his army post. Here were the only persons, apparently, who knew anything about him, or his reputation for orderly conduct. He did not attempt to call those with whom he had worked to testify as to their personal knowledge of him and of his traits in violation of the rule laid down in the Van Gaasbeck case. He did seek to establish his reputation for peacefulness and quietness among those with whom he came in daily contact and with whom he had associated for years. This was by no means such a limited or narrow class as to have no bearing upon the point, or make his reputation with them of no value.

We think that the Appellate Division was right in ruling that to confine the evidence of the defendant’s reputation in this case merely to the place where he resided was too limited an application of the rule of good character evidence, and that the testimony offered should have been received. The value of the evidence of good character is not always dependent upon the place of residence; its worth and weight are measured by the opportunity for obtaining a reputation, whether it be at home or abroad. The determining factor is whether the community in which the defendant has lived his life is sufficiently large for the persons to become acquainted with his character and to form a general opinion of it. This we call general reputation. The cases are quite right which exclude evidence of reputation among such a small class of persons or business associates, as to make it not a general reputation, but rather the evidence of individual and independent dealings. Even such evidence we exclude simply through necessity as stated in the Van Gaasbeck case.

The order of the Appellate Division should, therefore, be affirmed.

Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Andrews and Lehman, JJ., concur.

Order affirmed.


author: Cardozo, J.

text:
    John Anderson, Appellant, v. John L. Hayes Construction Company, Inc., et al., Appellants, and the People of the State of New York, Respondent.
    Liens — State — contract — jurisdiction — Supreme Court has jurisdiction to determine the sum due from State on contract chargeable with liens and to direct payment therefrom to the lienors — assignee of moneys due on contract with State on a parity with lienors in respect to remedies — non-payment by county of drafts for work done on contract to build highway sufficient reason for rescission where the State had covenanted to pay — validity of liens not affected by their exceeding in amount moneys in treasury appropriated to contract.
    1. By section 42 of the Lien Law (Cons. Laws, eh. 33) the State has consented to be sued in the ordinary courts of justice when the subject-matter of the controversy is a lien upon money owing to its contractor, and by section 60 of that law it has consented that out of any money that may be found to be so owing, judgment may be rendered directing payment to be made. There is no suggestion of a condition that the remedy is to fail if the debt shall be disputed. A contention, therefore, that the Supreme Court is without jurisdiction to adjudge the payment of such a lien unless there is a concession by the State of money due to the contractor cannot be sustained. There is jurisdiction to determine the sum chargeable with liens and to direct payment to the lienors out of the balance so adjudged.
    2. An assignee of moneys due under a contract for a public improvement, when brought into court at the suit of lienors, is on a parity with them in respect of the remedies available. By section 16 of the Lien Law the assignment takes precedence of liens subsequently filed, and the provision of section 42 that the lien against the State shall be enforced by a civil action in the same manner as mechanics’ liens generally means that there shall be such cross-remedies among defendants claiming derivative interests in the fund by succession to the contractor, as may bo necessary for complete relief.
    3. In an action to foreclose a mechanic’s lien for labor furnished to the contractor in the building of a highway, which contract had been declared broken by the State by reason of failure of the contractor to go on with the work after refusal by a county treasurer to pay drafts for installments due for work done, a contention that non-payment of the drafts was not an adequate reason for rescission and that the • contractor was at fault in abandoning the work cannot be upheld, where, though the statute made it the duty of the county to contribute a prescribed quota of the cost, as between the parties to the contract, the obligation to pay at the times and in the amounts agreed was that of the State, and when informed that the drafts had been dishonored it did not offer to make them good. A theory that because in the end there would be remedies available to hold the county to its duty, the contractor must wait for its money and while waiting perform is not a fair construction of the contract or of the obligation of the State thereunder. The State had covenanted to pay. If payment was not made the covenant was broken and if the breach was not repaired the contractor might rescind.
    (Argued June 1, 1926;
    decided July 9, 1926.)
    4. The validity of the liens is not affected by the fact that the aggregate award therefor may be in excess of the moneys in the treasury of the State appropriated to the contract. The validity of a judgment is not dependent upon the assurance of collection and the liens upon the cause of action do not fail because the State has lost or wasted or been unable to collect the fund to which it expected to resort for payment of the debt. The liens attach to the debt and the lienors to the extent of their interests are statutory assignees.

      Anderson v. Hayes Construction Co., 215 App. Div. 109, reversed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 9, 1926, modifying and affirming as modified a judgment entered upon a decision of the court on trial at Special Term in an action to foreclose a mechanic’s lien.

      William H. Sweny for plaintiff, appellant.
    Failure to pay an installment upon a contract when due is a breach for which the contractor has two remedies. He may elect to rescind and recover on a quantum meruit or he may continue under the contract and sue for the installment due-. (Wharton v. Winch, 140 N. Y. 287.) The State of New York having illegally canceled the contract herein the contractor is entitled to the value of the work performed and materials furnished, and under the Lien Law the court can appropriate so much thereof as will pay all valid liens. (Smith v. State of New York, 65 Misc. Rep. 376; Newman Lumber Co. v. Wemple, 56 Misc. Rep. 168.)
    I. J. Beaudrias for Westchester County Trust Company, defendant, appellant.
    The contract provides for payment in installments, and a failure to pay such installments when due is a breach for which the contractor may at once rescind and recover for the materials furnished and services rendered up to that time. (Wharton v. Winch, 140 N. Y. 387; Jones v. City of New York, 47 App. Div. 40.) The lienors are entitled to have all moneys due from the State of New York to the contractor or which become due thereafter applied in satisfaction of their liens. (Upton Co. v. Flynn, 169 App. Div. 79; Foshay v. Robinson, 137 N. Y. 134; Van Clief v. Van Vechten, 130 N. Y. 571; Anisansee v. Coggeshall, 83 App. Div. 491; Riverside Contracting Co. v. City of New York, 148 N. Y. Supp. 281; 165 App. Div. 972; 218 N. Y. 596; McCabe v. City of New York, 46 App. Div. 579; Post & McCord v. City of New York, 148 N. Y. Supp. 568; Herman v. Hillman, 203 N. Y. 435.) The court may award a judgment to the lienors for the extent of the money earned by the contractor, although it may not in this action adjudicate the amount due the contractor over and above the amount of such liens. (Smith v. State of New York, 65 Misc. Rep. 376; Newman Lumber Co. v. Wemple, 56 Misc. Rep. 168.) The court has jurisdiction to render judgment as between the lienors and the contractor, determining the validity and priority of liens and directing payment thereof out of moneys conceded by the State to be due to the contractor and in its possession. (Riverside Contracting Co. v. City of New York, 148 N. Y. Supp. 281; 165 App. Div. 972; 218 N. Y. 596; McCabe v. City of New York, 46 App. Div. 579; Post & McCord v. City of New York, 148 N. Y. Supp. 568; Herman v. Hillman, 203 N. Y. 435.)

      Joseph A. Murphy for Acme Cement Corporation, defendant, appellant.
    Issues arising between a lienor and the State may be tried and determined in a hen foreclosure. (Stief v. Hart, 1 N. Y. 30; Mayor of N. Y. v. Sands, 105 N. Y. 210; People ex rel. Ostrander v. Chapin, 105 N. Y. 309; Smith v. State, 65 Misc. Rep. 376.) Liens attach to moneys due and payable under the contract and the right of a lienor to such money is superior to the right of the State. (Van Chief v. Van Vechten, 130 N. Y. 571; Dempsey v. Mount Sinai Hospital, 186 App. Div. 334; Wharton v. Winch, 140 N. Y. 287; Kertscher & Co. v. Green, 205 N. Y. 522; Brainard v. County of Kings, 155 N. Y. 538; Brandt v. City of New York, 110 App. Div. 396; 186 N. Y. 599.)

      J ames E. Duross for Atlas Powder Company, defendant, appellant.

      Walter S. Gill for Conrad E. Hasbrouck, defendant, appellant.

      John J. Kinney for Rosoff Sand and Gravel Corporation, defendant, appellant.-

      Albert Ottinger, Attorney-General (Albert J. Danaher of counsel), for respondent.
    The State has not consented to have its liability to a contractor determined in an action to foreclose a mechanic’s lien. The Supreme Court was without authority to render the judgment entered herein. (Matter of Hoople, 179 N. Y. 308; Sanders v. Saxton, 182 N. Y. 477; Republic of France v. Pittsburgh Steel Export Co., Inc., 112 Misc. Rep. 688; Dietrich v. Palisades Interstate Park Comm., 114 Misc. Rep. 425; Locke v. State, 140 N. Y. 480; People v. Third Nat. Bank of Syracuse, 159 N. Y. 382; People v. Dennison, 84 N. Y. 272; People v. Greylock Construction Co., Inc., 213 App. Div. 21; 240 N. Y. 710; Smith v. State of New York, 65 Misc. Rep. 376; Alyea v. Citizens Savings Bank, 12 App. Div. 574; 162 N. Y. 597; Maneely v. City of New York, 119 App. Div. 376; Title Guaranty & Surety Co. v. Guernsey, 205 Fed. Rep. 94.)
   Cardozo, J.

The State of New York by its Department of Public Works, Bureau of Highways, made a contract with the John L. Hayes Construction Company whereby for $355,264.40 the construction company was to construct a highway in Greene and' Ulster counties. There were to be monthly estimates of the amount of work done and material in place. Ninety per cent of the value so computed was thereupon to be paid to the contractor, the remaining ten per cent to be retained until the completion of the job. The statute made it the duty of the counties to contribute a prescribed quota of the cost (Highway Law, §§ 139, 140, 141-a; Cons. Laws, ch. 25). As between the parties to the contract, the obligation to pay at the times and in the amounts agreed was the obligation of the State.

On October 15, 1924, an installment of the price fell due in accordance with a monthly estimate. To pay this installment, the State by its Bureau of Highways drew two drafts, dated October 20,1924, one for $8,948.23, and the other for $348.25, to the order of the contractor, upon the treasurer of Ulster county. The drafts were presented to the treasurer for payment, and payment was refused, the treasurer wrongfully taking the position that the contract was without binding force either on the State or on the county. The contractor, deprived by these acts of the means of going forward with the work, gave notice to the State on October 31,1924, that payment had not been made in accordance with the contract, and that work would cease thereafter. The State retaliated with a notice on November 6, 1924, directing the contractor to go on, with warning that the default, if continued for ten days, would lead the State to declare the contract broken and to relet the work to others. The contractor did not go on, and the State declared a default in accordance with its notice.

The plaintiff brings this action to foreclose a mechnic’s lien for labor furnished to the contractor in the building of the highway. He has joined as defendants the State of New York, and also other lienors. One of the defendants, the Westchester Trust Company, is an assignee of the liens of laborers for $6,791.88. To the extent of $23,700 it is the assignee of the contractor, by force of an assignmént made on the stoppage of the work as collateral security for moneys previously loaned. The Special Term held that the State was in the wrong, and that there was due under the contract at the date of such default the sum of $75,138.34, the value of the work and material furnished at that time. From the moneys so found to be due, the State was directed to pay the claims of lienors, and also that of the Westchester Trust Company as the contractor’s assignee. The payments thus directed did not exhaust the fund. The balance left over would, of course, belong to the contractor, but the court conceived itself to be powerless to make the necessary award. A contractor, unlike material-men or laborers, is without a lien against the State (Lien Law, § 5; Cons. Laws, ch. 33). For that reason, the judgment was in favor of lienors and assignee without prejudice to the remedy of the contractor by proceedings in the Court of Claims. In this ruling the contractor acquiesced. The appeal that followed was the State’s.

The judgment of the Appellate Division requires for its understanding a summary of the provisions of the Lien Law. The statute says that one who performs labor for or furnishes materials to a contractor for a public improvement under a contract with the State or a municipal corporation shall have a lien upon the moneys of the State or the corporation to the extent of the amount due or to become due under the contract upon filing a notice of lien in the form prescribed by law (Lien Law, § 5). The statute also says that this lien may be enforced^ against the funds of the State in the same court and in the same manner as a mechanic’s lien on real property (§ 42); that the State may be joined as a defendant in the same manner as a private person (§ 44); and that the court shall render judgment directing the State to pay to the lienors so much of the money which may be found due from the State to the contractor as will satisfy their hens with interest and costs (§ 60).

Upon appeal to the Appellate Division, the Attorney-General took the ground, as he does in this court, that the Supreme Court is without jurisdiction to adjudge the payment of such a hen unless there is a concession by the State of money due to the contractor. Only in that event, it is said, has the State consented to be sued except in the Court of Claims. If the indebtedness is disputed, the henors are helpless.

The Appellate Division so held, and in thus holding eviscerated the judgment. It wiped out all the provisions adjudicating the default of the State and the existence and amount of an indebtedness at the cessation of the work. It left nothing but an adjudication that the hens were enforcible against any sum that might finally be determined to be due to the contractor in an action in the Court of Claims. If such an action were not brought, or being brought were determined adversely to the contractor, the hens would not attach to anything. They were left in the meantime suspended in mid-air. Another action would be needed to bring them down to earth.

We find no basis in the statute for this division of judicial functions. The State has consented to be sued in the ordinary courts of justice when the subject-matter of the controversy is a hen upon money owing to its contractor, and has consented that out of any money that may be found to be so owing judgment may be rendered directing payment to be made. In consent so explicit, we see no suggestion of a condition that the remedy is to fail if the debt shall be disputed. Justice and convenience combine with the plain wording of the statute in forbidding us to imply a condition so oppressive. No sensible reason can be imagined why the State, having consented to be sued, should thus paralyze the remedy. A court of dignity and power had the parties before it, and had heard the controversy between them. To transfer the controversy to the Court of Claims could work no gain to any interest worthy of protection. Indeed, the special limitations applicable to claims in that court (Court of Claims Act, § 12) might often bring it to pass that the claim would be barred before the transfer could be made. The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.

Our holding, therefore, is that there was jurisdiction to determine the sum chargeable with hens, and to direct payment to the lienors out of the balance so adjudged. A closer question is whether the Westchester Trust Company has the standing of a lienor in so far as it claims as the contractor’s assignee. We have seen that a contractor with the State, unlike materialmen and laborers, is not a lienor. His remedy as plaintiff is by action in the Court of Claims. There is plausibility in the suggestion that the rights to be accorded to his assignee can be no greater than his own. We think, however, that other provisions of the Lien Law point to the conclusion that an assignee of moneys due under a contract for public improvement, when brought into court at the suit of lienors, is on a parity with lienors in respect of the remedies available. By section 16 of the act as construed in our decisions, the assignment takes precedence of hens subsequently filed (Giant Portland Cement Co. v. State, 232 N. Y. 395, 410; Riverside Contg. Co, v. City of N. Y., 218 N. Y. 596; General Fireproofing Co. v. Keepsdry Const. Co., 225 N. Y. 180, 184, 185; Albany B. S. Co. v. Eastern B. & S. Co., 235 N. Y. 432, 437). An adjudication of the amount due upon it is, therefore, necessary as a preliminary to an effective adjudication of the sum due upon the liens. Section 42, as we have seen, provides that the hen against the State &hall be enforced by a civil action in the same manner as mechanics’ liens generally. This means, we think, that there shall be such cross-remedies among defendants claiming derivative interests in the fund by succession to the contractor, as may be necessary for complete relief. The Legislature cannot have had in view the creation of a form of action that would be a stunted and misshapen anomaly among equitable remedies. The effect of section -42 is to subject the remedy against the State to the provisions of section 45, whereby “ the court may adjust and determine the equities of all the parties to the action and the order of priority of different hens, and determine all issues raised by any defense or counterclaim in the action.” There is no need to consider whether a legitimate application of this principle would not require relief to be extended to a defendant contractor as well as to successors in interest, lienors and assignees. The contractor has not appealed and its remedies are not in question.

A point is made that non-payment of the drafts was not an adequate reason for rescission, and that the contractor was at fault in abandoning the work. We think the situation viewed in its entirety justifies the course pursued. The monthly payments were the fund from which the expenses of the work were to be met. The contractor could not go on if the fund was not supplied. The State may indeed have been entitled to a reasonable opportunity to provide the necessary moneys after the county treasurer’s default (2 Williston on Sales, § 467-e). If it had sought such an opportunity when informed of the dishonor of the drafts, the. contractor might have been in the wrong in adhering to a precipitate rescission. But that was not the State’s position. Informed that the drafts had been dishonored, it did not offer to make them good. It merely told the contractor to proceed, and gave notice of reletting when the demand was not obeyed. Its theory seems to have been that the State was not in default because the county did not pay. In the end there would be remedies available to hold the county to its duty. Meanwhile, the contractor must wait, and, while waiting, must perform. But that is not a fair construction of the contract, or of the obligation of the State thereunder. The contractor was not to be involved in quarrels between State and county. They might make such arrangements as they pleased for the division among themselves of the cost of the improvement. The obligee would look to the obligor for the performance of the covenants. The State had covenanted to pay. The covenant was broken if payment was not made, whether an insolvent bank or a recalcitrant county or any other misadventure was the occasion of the breach. The breach must be repaired, or the contractor might rescind (Wharton & Co. v. Winch, 140 N. Y. 287; Helgar Corp. v. Warner’s Features, Inc., 222 N. Y. 449).

A point is also made that the aggregate award for hens may be in excess, for all that appears, of the moneys in the treasury of,the State, appropriated to the contract. This is possible, it is said, as a result of the statutory division of the cost of the improvement between State and county. The Legislature is not to be presumed to have appropriated to the contract a sum in excess of the State’s quota of the cost. The fact remains, however, that the statute authorizes the State to assume the obligation of the contract as a whole, and to pledge the credit of the State for the payment of the price. What is not appropriated by the State is to be appropriated by the county. “ The portion of the cost to be borne by the county shall be appropriated and made immediately available to the requisition or draft of the state commission of highways ” when the board of supervisors approves the plans and estimate of cost (Highway Law, § 141-a). There is no denial that this was done. Other appropriation was unnecessary to permit the contract to be let. The State, in these circumstances, does not . better its position by the plea that the wrong of one of its civil subdivisions is the cause of its default. Like any other delinquent obligor, it must submit to judgment for what it owes, whether the money is on hand or not. The contractor is not to suffer in his remedies because the fund may be too low. We are not concerned at the moment with the question whether the judgment for what is due can be effectively enforced. The validity of a judgment is not dependent on the assurance of collection. Confusion of thought is likely to ensue if we think of the judgment as imposing a hen on a specific res in the possession of the State. What is called the “ lien ” of materialmen or laborers under these provisions of the statute may be characterized more fitly as a right of subrogation to the contractor’s cause of action. There is no specific fund identified and earmarked. There is a cause of action for money due upon a contract, with the pledge of the credit of the State as the assurance that the money will be paid. We must beware of identifying a hen upon such a right with a hen upon land. There is analogy rather than identity between the remedies available. The hen upon the cause of action does not fail because the State has lost or wasted or been unable to collect the fund to which it expected to resort for the payment of the debt. The hen attaches to the debt, and the henors to the extent of their interests are statutory assignees. The failure of the fund, if failure there has been, has no greater significance as affecting the foreclosure of their hens than it would have if the action were at law with the contractor in the role of plaintiff.

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

His cock, Ch. J., McLaughlin, Crane, Andrew's and Lehman, JJ., concur; Pound, J., absent.

Judgment accordingly.


text:
    William J. Schieffelin, Appellant, v. Thomas E. O’Brien et al., Respondents.
    (Argued May 31, 1926;
    decided July 9, 1926.)
    New York city — police —■ civil service —■ amendment to charter providing for a superintendent of buildings in police department creates new office • — • designation, without civil service examination, of police officer to fill such position invalid.
    Section. 276-e of the charter of the city of New York, added thereto by chapter 624 of the Laws of 1923, and providing, “ There is hereby created in the police department an officer to be known as superintendent of buildings to be selected from the members of the uniformed force by the police commissioner, who * * * shall not be removed or dismissed except in the manner prescribed for other members of the force,” creates a new office; and the selection, by the police commissioner, without civil service examination, of a lieutenant of police who, by assignment, had for many years been in charge of the “ bureau of repairs and supplies,” which bureau was superseded by the new office, is invalid. A contention that the effect of the statute is merely to give the approval of the Legislature to the pre-existing practice of detailing an officer thereto under revocable assignment cannot be sustained.

      Schieffelin v. O’Brien, 216 App. Div. 799, reversed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 29, 1926, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at> Special Term.

      Leonard M. Wattstein and Ralph M. Frink for appellant.
    Chapter 624 of the Laws of 1923 created a new permanent and regular office of superintendent of buildings in the police department and not a mere detail therein. (People ex rel. Buckley v. Roosevelt, 5 App. Div. 168; People ex rel. O’Connor v. Girvin, 227 N. Y. 392; Ryan v. City of New York, 228 N. Y. 16; Story v. Craig, 231 N. Y. 35; Murray v. Kaplan, 206 App. Div. 202.)

      George P. Nicholson, Corporation Counsel (John F. O’Brien, Elliot S. Benedict and Arthur Sweeny of counsel), for respondent.
    O’Brien’s selection, pursuant to chapter 624, Laws of 1923, was a detail or assignment to special police duty, revocable at pleasure, and not an appointment to a separate and distinct position. (Barlow v. Craig, 122 Misc. Rep. 518; 209 App. Div. 89; City of New York v. New York City R. Co., 193 N. Y. 543; Tenement House Department v. Grimmer, 205 N. Y. 549; Matter of City of New York, 217 N. Y. 1.) The language of the sections themselves and the practical construction placed upon them, all unerringly point to the conclusion that O’Brien was merely detailed to perform service and that his detail is revocable at the will of- the police commissioner with or without cause. (Barlow v. Craig, 122 Misc. Rep. 518; 209 App. Div. 89; People ex rel. O’Connor v. Girvin, 227 N. Y. 392; Matter of Ryan, 228 N. Y. 16; People ex rel. Daly v. Greene, 91 App. Div. 58; 178 N. Y. 617; Riley v. Mayor, 96 N. Y. 331; Matter of Fay v. Partridge, 174 N. Y. 526; People ex rel. Buckley v. Roosevelt, 5 App. Div. 168; Matter of Leach v. Woodbury, 75 App. Div. 503.)
   Cardozo, J.

This taxpayer’s action to enjoin the payment of salary, brings up the question whether the office of superintendent of buildings in the police department of the city of New York is one that must be filled after competitive examination in accordance with the provisions of the Constitution and the statutes for promotions in the civil service.

There was established in the police department in 1895 a “ Bureau of Repairs and Supplies,” which was placed in the charge of a member of the police force. Supervision of this bureau as then organized was not an independent office, but a mere assignment to duty which might be made at the pleasure of the police commissioner and at like- pleasure revoked. The defendant Thomas E. O’Brien was given the direction of the bureau at the time of its formation, and with a brief interruption has been in charge of it ever since. The Legislature was not satisfied, however, to leave the situation in this shape. It preferred to give the incumbent of the office a tenure less precarious. In 1923, by chapter 624 of the Laws of that year, it added to the charter of the city of New York a section designated 276-e, which reads as follows:

“ There is hereby created in the police department an officer to be known as superintendent of buildings, to be selected from among the members of the uniformed force by the police commissioner, who shall be subject to the rules and regulations governing other members of the force as regards promotion and otherwise, and who shall be entitled to all benefits and privileges heretofore extended to each member of the force with regard to a pension, and shall not be removed or dismissed except in the manner prescribed for other members of the force, and whose time served in such force as far as it relates to a pension shall count and continue as superintendent of buildings. Such superintendent, under the direction of the commissioner, shall have supervision over the.construction of new buildings and the alteration, repair and improvement of all department buildings, including the preparation of plans and specifications therefor, and supervision over the mechanical force of the police department. The salary of superintendent of buildings shall not be less than five thousand dollars per annum. Previous experience in construction, repair and maintenance of buildings in the police department shall be taken into consideration by the police commissioner in the selection of said superintendent of buildings.”

At the time of this enactment, the defendant O’Brien was a lieutenant of police at an annual salary of $3,300. Without civil service examination, he was selected by the police commissioner as superintendent of buildings, with an annual salary of $5,000. The plaintiff insists that the effect of chapter 624 of the Laws of 1923 is the creation of a new office. The appointment is then invalid. The defendants insist that the effect of the statute is merely to give the approval of the Legislature to the pre-existing practice. In that view the designation is valid as a revocable detail of an officer to the performance of special duties (People ex rel. O’Connor v. Girvin, 227 N. Y. 392).

We cannot read the statute as accomplishing anything less than the creation of an office. Its opening sentence informs us that this is the effect intended. The office being thus created, the incumbent is protected in his enjoyment of it by the provision that he shall not be removed or dismissed except in the same manner as other members of the force. We cannot reconcile a tenure thus secured with the tenure of one who holds by virtue of a revocable assignment. The argument is made that the purpose of these provisions was merely to give assurance to the officer that performance of the special duties would not forfeit the privileges incidental to the office which he retained. The assurance in that view becomes a superfluous statement of the obvious. No one could suppose that an office continuously retained had also been abandoned. The pledge of security of tenure had its occasion and necessity in the fact that there was to be a change in the existing practice by which the performance of such services was merely submission to the order of a superior for the performance of a special duty. Hereafter there was to be a new office with another officer to fill it.

The conclusion is even clearer when we contrast the wording of this section of the charter with the wording of other sections providing for revocable assignments. The Legislature had, no difficulty in finding apt terms at its command when details only were in view. By section 288, The police commissioner shall, in the exercise of his discretion, from time to time detail nineteen captains and so many others as the board of estimate and apportionment upon the recommendation of the mayor and the police commissioner may authorize to act as inspectors, with the title while so acting of inspectors of police, and at his pleasure may revoke any or all such details.” By section 290, the police commissioner shall organize and maintain a bureau for detective purposes to be known as the detective bureau,” and shall, from time to time, detail to service in said bureau as many members of the force as he may deem necessary to make the bureau efficient, and may at any time revoke any such detail.” There is no chance for misconstruction here.

We see no distinction between section 276-e, with its provision for the office of superintendent of buildings, and other sections, subdivisions of 276, such as 276-a with its provision for a chief lineman, 276-c with its provision for the apppointment of patrolwomen, a second section 276-c creating the office of marine inspector, and 276-d creating that of military police captain. It is true that section 276 in its general enumeration of the offices in the police department does not mention the superintendent of buildings, but it does not mention these others. There can be no doubt that the chief lineman holds an independent office, for the statute expressly says that he shall be appointed after an open and competitive examination. Except in the requirement of examination, the wording of the section estabfishing his office is identical, or nearly so, with the wording of the section now before us. The differences are not controlling. If a new office was created, there was no necessity in creating it to make mention of civil service requirements. They were established independently and adequately by Constitution and by statute.

The judgment of the Appellate Division and that of the Special Term should be reversed and judgment granted in favor of the plaintiff as prayed for in the complaint, with costs in all courts.

His cock, Ch. J., McLaughlin, Crane, Andrews and Lehman, JJ., concur; Pound, J., absent.

Judgment accordingly.


author: Pound, J.

text:
    Jacob Ruppert, Appellant, v. Henry U. Singhi, Respondent.
    (Argued June 7, 1926;
    decided July 9, 1926.)
    Bills, . notes and checks — contract — sale — evidence — demand note given as consideration for sale of liquor tax certificate — parol evidence of breach of contemporaneous oral agreement improper in action to recover on note — breach of condition subsequent not a defense — proof of bad bargain does not establish failure of consideration.
    1. On trial of an action to recover upon a promissory note, payable on demand, given as the purchase price of a liquor tax certificate sold and transferred by plaintiff to the defendant, it is error to receive parol evidence of an alleged contemporaneous promise by plaintiff, that if defendant procured a satisfactory tenant plaintiff would accept the tenant’s note and discharge defendant from further liability and that though such a tenant was procured and the certificate transferred to him, plaintiff refused to accept the tenant as its debtor and discharge the note. The writing was the contractual act. The delivery was not conditional but was complete and effective and the refusal of the plaintiff to abide by the contemporaneous oral agreement was the breach of a condition subsequent which could not be established as a defense. (Bookstaver v. Jayne, 60 N. Y. 146; Rout-ledge v. Worthington Co., 119 2ST. Y. 592; Chapin v. Dobson, 78 N. Y. 74; Baird v. Baird, 145 N. Y. 659; Smith v. Dotterweich, 200 N. Y. 299, distinguished.)
    2. Nor is failure of consideration shown. The certificate was transferred to defendant for the agreed value. It ran only to the end of the year. He received what he bargained for and proof of a bad bargain does not establish failure of consideration.

      Ruppert v. Singhi, 216 App. Div. 737, reversed.

      Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 27, 1926, affirming a judgment in favor of defendant entered upon a verdict.

      Ashbel P. Fitch for appellant.
    The trial judge erred in admitting evidence as to an oral agreement alleged by the defendant to have been entered into between the defendant and the plaintiff prior to or contemporaneous with the execution and delivery of the promissory note in suit. (Thomas v. Scutt, 127 N. Y. 133; Newburger v. American Surety Co., 242 N. Y. 134; Jamestown Business College v. Allen, 172 N. Y. 291; Read v. Bank of Attica, 124 N. Y. 671; Smith v. Dotterweich, 200 N. Y. 299; Stowell v. Greenwich Insurance Co., 163 N. Y. 298; Grannis v. Stevens, 216 N. Y. 583; Zinsser v. Columbia Cab Co., 66 App. Div. 514; Driscoll v. Colby, 161 App. Div. 922; Gray v. Meyer, 88 App. Div. 359; Mead v. Dunlevie, 174 N. Y. 108; McGarrigle v. McCosker, 83 App. Div. 184; Munch Brewery v. DeMatteis, 128 App. Div. 830; Kelly v. Ruppert, 173 App. Div. 116; Wigmore on Evidence, § 2444.)

      Raymond D. O’Connell and Frank R. Greene for respondent.
    Proof of the oral agreement was admissible to show the whole transaction and the real consideration for the note in suit, especially in connection with the other proof that it was fully performed by defendant and that this performance was accepted as such by the plaintiff. (Chapin v. Dobson, 78 N. Y. 74; Juilliard v. Chaffee, 92 N. Y. 529; Routledge v. Worthington, 119 N. Y. 592; Bookstaver v. Jayne, 60 N. Y. 146; Baird v. Baird, 145 N. Y. 659; Lawrence v. Sullivan, 79 App. Div. 453; Studwell v. Bush, 126 App. Div. 818; Ruppert v. Singhi, 212 App. Div. 630; Joyce, Defenses to Commercial Paper [2d ed.], § 512; Buchanan v. Adams, 10 Atl. Rep. 662; Storz v. Kinder, 73 App. Div. 372; Ozark Cooperage &

      L. Co. v. Kimont, 171 App. Div. 48; Van Valkenburg v. Stupplebeen, 49 Barb. 99; Coffin v. Grand Rapids H. Co., 46 N. Y. S. R. 851.)
   Pound, J.

Prior to the adoption of the Eighteenth Amendment to the Constitution of the United States the number of liquor tax certificates in each borough of the city of New York was limited. When the quota was exhausted, it was necessary for one who would open a saloon to go to the holder of a certificate and make terms with him for the assignment of an existing certificate to the new place of business. Such certificates had a so-called bonus value. Defendant had a building in The Bronx. Plaintiff was a brewing corporation which had a liquor tax certificate for sale for the year ending September 30, 1915. Defendant desiring to use or lease a portion of the building for saloon purposes bought the certificate from plaintiff for $3,400 and gave his promissory note therefor, dated May 24, 1915, and payable on demand. The certificate was transferred to his property and in his name and was renewed for the year ending September 30, 1916. He ran the saloon until he found a man named Kirch for a tenant who ran the business under the certificate issued to defendant until the end of the year. Kirch had applied for a liquor tax certificate for the premises in his own name which was issued to him for the following year. Under this certificate Kirch might sell the right to do business at the place in question or transfer the certificate to another place. Defendant was thereby deprived of control of the certificate but was left liable on the note. Kirch as holder of the certificate was vested by law with substantially the same rights that defendant acquired under the certificate transferred to him by the plaintiff for which he gave the $3,400 note in suit. The liquor tax certificate and its renewals were assigned to plaintiff by defendant as security for the note. The jury has found that plaintiff participated in obtaining a certificate for Kirch without defendant’s knowledge or consent. Kirch assumed and agreed to pay to plaintiff the defendant’s note but the note was not paid.

Action was begun thereon. Defendant set up as a defense that it was given in consideration of the transfer to defendant of a liquor tax certificate; that plaintiff agreed that immediately upon the procuring of a tenant satisfactory to plaintiff by defendant, plaintiff would take the tenant’s obligation in place of the defendant’s note and discharge defendant from further liability thereon; that plaintiff refused to accept the tenant as its debtor and discharge the note. A further defense alleged that plaintiff retained the power to transfer the certificate to a person of defendant’s choosing and without notice to him transferred the certificate to Kirch, whereby the consideration for the note failed.

Parol evidence was received on the trial, over objection and exception, of the plaintiff’s contemporaneous promise to take the tenant’s note if defendant got a satisfactory tenant for the premises and thereupon to return defendant’s note to him; of defendant’s act in procuring a tenant and of plaintiff’s refusal to accept the tenant and discharge the note. This was error. The parol evidence rule as applicable to the integration of contracts is said by Wigmore (5 Evidence [2d ed.], § 2400) to be a rule of substantive law. “ The writing is the contractual act of which that which is extrinsic forms no part.” While it is subject to many exceptions (Newburger v. American Surety Co., 242 N. Y. 134, 142), and it has been said that “it has full application within very narrow limits” (Juilliard v. Chaffee, 92 N. Y. 529, 534), and that the exceptions have been so loosely applied as to threaten the integrity of the rule itself (Stowell v. Greenwich Ins. Co., 163 N. Y. 298, 305), this case comes under the general rule and does not fall within any exception to the rule. The note was delivered absolutely; the consideration was the transfer of the liquor tax certificate of defendant’s premises and in his name; defendant and his tenant did business thereunder and under a renewal thereof. The delivery. was not conditional but was complete and effective. The refusal of the plaintiff to abide by the contemporaneous oral agreement as to the discharge of defendant’s liability was the breach of a condition subsequent which could not be established as a defense. (Thomas v. Scutt, 127 N. Y. 133; Stowell v. Greenwich Ins. Co., supra; Read v. Bank of Attica, 124 N. Y. 671; Jamestown Business College Assn. v. Allen, 172 N. Y. 291.)

Bookstaver v. Jayne (60 N. Y. 146), cited as an authority for defendant, was a case of want of consideration at the inception of the note. Plaintiffs broke their present promise to be performed contemporaneously with the giving of the note. In Juilliard v. Chaffee (supra) it is stated somewhat broadly that it is competent to show that the design or object of a written instrument is different from what its language, if alone considered, would indicate. But the note there in question did not constitute the agreement of the parties nor was it the foundation of the action. Routledge v. Worthington Co. (119 N. Y. 592) and Chapin v. Dobson (78 N. Y. 74) state the familiar rule that if the writing does not contain on its face the entire agreement between the parties, parol, not inconsistent with its terms may be received, not to contradict it but to show the real contract. But this. rule does not apply when it appears from inspection of the instrument that it was intended to express the full and complete intention of the parties. (Eighmie v. Taylor, 98 N. Y. 288.) Baird v. Baird (145 N. Y. 659) was another case of want of present consideration. Many of these cases were cited by Haight, J., in his dissenting opinion in the Jamestown College case and were found to be not persuasive by the court. The case of Smith v. Dotterweich (200 N. Y. 299) holds that proof of a conditiqnal delivery is a well-recognized exception to the parol evidence rule but the learned judge who wrote the opinion clearly stated the distinction applicable hereto when he said (p. 306): “ The case of Jamestown Business College Assn. v. Allen is a salient illustration of the converse of this rule. There the promissory note was rendered effective and complete by an unconditional delivery. The payee agreed to release the maker, and to cancel the note, upon a future contingency which might or might not arise. That was clearly a condition subsequent which brought the case within the general rule that a contract reduced to writing and complete in its terms, cannot be varied and contradicted by oral testimony. Thus, to state the difference most concretely, the case at bar is one in which the oral testimony tends to show that the writing purporting to be a contract is in fact no contract at all, while in the case of the Jamestown Business College the oral testimony was in direct contradiction of the written contract as to the existence and validity of which there was no controversy."

No failure of consideration is shown. The certificate was transferred to defendant for the agreed bonus value. It ran only to the end of the year. He received what he bargained for. Proof of a bad bargain does not establish failure of consideration. Defendant may have had reason to expect better treatment but the Eighteenth Amendment was ratified on January 29, 1919, and put an end to bonus values.

The judgments should be reversed and judgment directed in favor of the plaintiff for the sum of $3,400, with interest thereon from May 24, 1915, with costs in all courts.

Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgment accordingly.


author: McLaughlin, J.

text:
    The People of the State of New York, Appellant, v. Marie Williams, Respondent.
    (Argued June 8, 1926;
    decided July 9, 1926.)
    Crimes — disorderly house — sufficiency of indictment — demurrer thereto on ground it charged two crimes properly overruled.
    1. The purpose of an indictment is to identify the charge against a defendant so that his conviction or acquittal may prevent a subsequent charge for the same offense and also to notify him of the nature and character of the crime charged against him to the end that he may prepare a defense.
    2. An indictment, therefore, charging in its first count that at a certain date, in a certain town in a certain county and continously thereafter, defendant kept and maintained “a certain disorderly house,” and by its second count that the defendant at the same time, in the same town, and in the same county, kept and maintained “ a certain house of prostitution,” is sufficient, and a demurrer thereto on the ground that it charged two crimes was properly overruled. The fact that the words “ said ” or “ aforesaid ” or “ referred to ” were not used in the second count of the indictment obviously could not have affected any substantial right of the defendant or misled her as to whether the house mentioned in the second count was the same one mentioned in the first.

      People v. Williams, 213 App. Div. 571, reversed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 16, 1925, which reversed a judgment of the Orange County Court rendered upon a verdict convicting the defendant of the crime of keeping a disorderly house and maintaining a public nuisance, dismissed the indictment and discharged the defendant,

      Elmer H. Lemon for appellant.
    The indictment sufficiently complied with the requirements of the Code of Criminal Procedure. (Code Crim. Pro. §§ 275, 278, 279, 284, 285; Wharton on Crim. Proc. [10th ed.] § 32; State v. La Rue, 128 S. E. Rep. 116; State v. Haskins, 115 S. E. Rep. 720; People v. Rose, 4 N. Y. Supp. 787; People v. Rose, 15 N. Y. Supp. 815; People v. Hatter, 22 N. Y. Supp. 688; State v. Vaughn, 117 S. E. Rep. 127.)

      Henry Hirschberg for respondent.
    The order of the Appellate Division sustaining the demurrer should be affirmed. (People v. Harmon, 49 Hun, 558; 112 N. Y. 667; People v. Dunn, 90 N. Y. 104; People v. Costello, 1 Den. 83; People v. O’Donnell, 46 Hun, 358; Code Crim. Pro. §§ 278, 279; People v. Goldner, 70 Misc. Rep. 199; People v. May, 179 App. Div. 290; People v. Werber, 27 Hun, 311.)
   McLaughlin, J.

In February, 1925, the defendant was indicted. The indictment contained two counts. The first count charged that on the 26th of September, 1924, at the town of Highlands in the county of Orange and continuously thereafter, defendant kept and maintained a certain disorderly house.” The second count charged that the defendant at the same time, in the same town, and in the same county, kept and maintained a certain house of prostitution.”

At the opening of the trial defendant demurred to the indictment upon the ground that the same charged two crimes. The demurrer was overruled and the trial proceeded and resulted in a verdict of guilty on both counts of the indictment. She was thereupon sentenced to serve six months in the county jail of Orange county and to pay a fine of $200. From the judgment of conviction and the order overruling the demurrer an appeal was taken to the Appellate Division, which reversed the judgment of conviction and the order overruling the demurrer, sustained the demurrer, and dismissed the indictment. The People appeal. (Code Crim. Pro. sec. 519.)

The Code of Criminal Procedure provides what an indictment shall contain. Among other things, it must contain a plain and concise statement of the facts constituting the crime, without unnecessary repetition. (Code Crim. Pro. sec. 275.) It must charge but one crime and in one form, except where the crime may have been committed by different means. (Id. 278.) The crime charged may be in separate counts if it be stated that the same was committed in a different manner or by a different means. (Id. 279.)

The Appellate Division held that the indictment was bad because it charged two separate and distinct crimes. In other words, it held that because in the second count of the indictment some word or words were not used to indicate that the house there referred to was the same house referred to in the first count two different and separate crimes were charged. In the opinion delivered it indicated that if the, same house was referred to in each count, then any doubt on the subject could have been obviated by using the words “ said or “ aforesaid or referred to ” immediately preceding the word house ” in the second count; that in the absence of words of this character it could not be presumed that the same house was' referred to in each count.

We are of the opinion that this is too narrow and technical a construction. We have long since passed the time when an indictment is to be adjudged defective because the words “ said or aforesaid or referred to are not used. It is true that there are decisions to the effect that under the strict and technical rules of the common law this indictment might be regarded as bad, but under the liberal procedure established by the Code of Criminal Procedure we find the indictment good. Under the present practice an indictment is considered good if the act or acts charged as a crime are plainly and concisely set forth with such a degree of certainty as to enable the court to pronounce judgment according to the justice of the case without regard to technical errors or defects which do not affect the substantial rights of the parties. (Code Crim. Pro. sec. 542.) An indictment is not considered insufficient by reason of any imperfection in matters of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. (People v. Helmer, 154 N. Y. 596, p. 600; People v. Willis, 158 N. Y. 392, p. 396.) Nor does an error or mistake in an indictment render it invalid unless such error or mistake actually prejudices or tends to prejudice a substantial right of the defendant. (Code Crim. Pro. secs. 284, 285, 684.) The purpose of an indictment is to identify the charge against a defendant so that his conviction or acquittal may prevent a subsequent charge for the same offense and also to notify him of the nature and character of the crime charged against him to the end that he may prepare a defense.

Tested by this rule, we are of the opinion that the indictment was sufficient. The fact that the words said ” or aforesaid ” or “ referred to were not used in the second count of the indictment obviously could not have affected any substantial right of the defendant or misled her in any way. If she had any doubt whatever <%s to whether the house mentioned in the second count was the same one mentioned in the first count, that doubt could have been easily removed by a motion for a bill of particulars. (People v. Weiss, 158 App. Div. 235, p. 238.) But the defendant was not and could not have been misled. It will be observed that in each count the crime charged is alleged to have been committed by the same person, at the same time, in the same town, and in the same county. (People v. Fanshawe, 65 Hun, 77; affd., 137 N. Y. 68; People v. Callahan, 29 Hun, 580; People v. Thompson, 28 Cal. 215.)

The judgment of the Appellate Division should, therefore, be reversed, and that of the County Court affirmed.

His cock, Ch. J., Cardozo, Pound, Crane, Andrews and Lehman, JJ., concur.

Judgment accordingly.


author: Caedozo, J.

text:
    The People of the State of New York, Respondent, v. Grace K. Gerks, Appellant.
    (Argued June 9, 1926;
    decided July 9, 1926.)
    Crimes — trial — charge — evidence — forgery in second degree — issuing fictitious bill of lading — refusal to charge that jury must find criminal intent as to each of other fictitious bills, received in evidence on question of intent, before considering them in relation to one under consideration, proper — possible erroneous refusal to permit plaintiff to say why she believed herself entitled to sign bills unimportant where facts are brought out later.
    1. Upon trial of an indictment charging defendant with forgery in issuing a fictitious bill of lading, where other bills of lading, apparently parts of similar transactions, reasonably connected in time and character with the one under consideration, had been offered in evidence by the People and received as tending to establish motive, or intent or absence of mistake, a refusal to charge that the jury must first find that each of such bills of lading was signed by defendant with criminal intent to defraud before they could be considered in connec. tion with the one for issuance of which defendant was being tried, was proper. As bearing upon intent the jury were at liberty to consider the fact that the particular bill of lading in question was one among a series of fictitious bills, issued at different times but in fulfillment o£ a common plan. Each of them when shown to be fictitious cast light upon the intent that was behind the making of every other. The first throws light upon the last, but equally the last throws light upon the first. (People v. Altman, 147 N. Y. 473, distinguished.)
    2. Defendant having been permitted to testify that she had no intention to defraud and that she believed herself privileged to sign the station agents’ names, though they had nob authorized her to do so, a refusal of the court at one point to let her say why she believed this and to state her employers’ instructions with reference thereto, if error, is unimportant where the facts were brought out later.

      People v. Gerks, 217 App. Div. 714, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 5, 1926, which affirmed a judgment of the Orleans County Court, rendered upon a verdict convicting the defendant of the crime of forgery in the second degree.

      Arthur V. D. Chamberlain for appellant.
    The exceptions taken during the trial to the admission and rejection of evidence require reversal. (People v. Weaver, 177 N. Y. 434; People v. Corbin, 56 N. Y. 363; Kerrains v. People, 60 N. Y. 221; Filkins v. People, 69 N. Y. 101; People v. Dinser, 49 Misc. Rep. 82; People v. Johnston, 186 App. Div. 248; People v. Molineux, 168 N. Y. 264; People v. McKeon, 64 Hun, 504.) The exceptions to the court’s charge and the court’s refusal to charge as requested present error requiring reversal. (People v. Altman, 147 N. Y. 473; People v. Van Tassel, 156 N. Y. 561; People v. Barker, 153 N. Y. 111.) This is not a case where the court can disregard the errors under section 542 of the Criminal Code. (People v. Gerdvine, 210 N. Y. 184; People v. Harris, 209 N. Y. 70; People v. Altman, 147 N. Y. 473; People v. Tribus, 219 N. Y. 18; People v. Milch, 178 App. Div. 875; People v. Smith, 172 N. Y. 210.)

      Gordon H. Payne, District Attorney (William H. Mun-son of counsel), for respondent.
    The exceptions taken during the trial to the admission and rejection of evidence do not require reversal. (People v. Gaffey, 182 N. Y. 257.) The exceptions to the court’s charge, and the court’s refusal to charge as requested present no error requiring reversal. (People v. Peckens, 153 N. Y. 576; People v. Katz, 209 N. Y. 311; People v. Molineux, 168 N. Y. 264; People v. Malone, 205 App. Div. 257; People v. Shulman, 80 N. Y. 373; People v. Hudson Valley Co., 217 N. Y. 172; People v. Everhardt, 104 N. Y. 591; People v. Conrad, 102 App. Div. 566.) No errors affecting the substantial rights of the defendant were committed. (People v. Meyer, 162 N. Y. 357; People v. Brandsby, 32 N. Y. 525; People v. Swerski, 216 N. Y. 471; People v. Ferola, 215 N. Y. 285.)
   Caedozo, J.

The defendant was employed by the Lewis E. Sands Company as a general office assistant. She had care, in particular, of its transactions with the banks. The Sands Company, which was engaged in the business of selling beans, had an account with the Union Trust Company of Rochester, where it had a line of credit of $90,000. It borrowed money from the trust company through the discount of drafts drawn on its customers with bills of lading attached. The Sands Company became badly embarrassed early in 1924, and bankruptcy was even then discussed by the directors in the presence of the defendant. Business went on, however, for some months, though with accumulating difficulties. They accumulated so fast that fictitious collateral was fabricated in the effort to escape them. On September 5, 1924, the defendant filled out the bill of lading set forth in the indictment, signing thereto the names of Mahoney and Ellis, the New York Central agents at Albion, New York. She admits that she did this without authority from either of them. A draft for $2,800 with the fictitious bill of lading attached to it was presented to the trust company, and by it discounted in the belief that the security was genuine. Another draft for $2,400 with a bill of lading also forged was discounted at the same time. These were not, however, the first offenses. Nine other bills of lading had already been forged by the defendant and used in the same way. Bankruptcy followed on September 12, 1924.

When the crash came, the defendant went to San Antonio, Texas, where she met Lewis E. Sands, the president of the company. They remained there till word came that a warrant was out for their arrest. Upon this they separated, going in opposite directions, Sands to Florida, and the defendant to Huntington, Indiana. In Texas and in Indiana, she lived at times under the assumed names of “ Grace Richards ” and “ Edna Grey.” Before leaving Albion, she told the attorney for the Sands Company that she had forged a number of bills of lading. She made the same admission to the district attorney at Buffalo, on her return from Indiana, saying also that she had done this to keep the company going. There was little variance from these admissions in her testimony upon the trial. By her testimony as by her admissions, she had signed the names of the railroad’s representatives without their knowledge or authority. She had done this, she protested, because her employers had instructed her accordingly, and what they told her she believed was right. Even so, she had made out the instruments and. sent them to the trust company for the purpose of obtaining money, and this for an employer whose embarrassments were known. She was thirty-three years of age, and in those years had acquired not a little experience in business. She owned all the stock of the Brayton Bean Company, a subsidiary of the Sands Company. She also ran a roadhouse known as the Lone Star Inn. Despite this background of experience, her defense reduced itself to a denial that she had any intention to defraud. The jury refused to find her so ingenuous. A different verdict was hardly possible unless duty was to be ignored.

On this appeal the chief question grows out of the court’s refusal of one of the requests to charge. The court had said in the body of the charge: These other bills of lading appear to have been parts of similar transactions, reasonably connected in time and character "with the one under consideration, and the purpose of the People in offering them and the purpose of receiving them was that it might be considered by you as tending to establish a motive or an intent or an absence of mistake.” When the charge was ended, the defendant’s counsel recurred to this subject with the following request: I ask the court to charge the jury that before they are permitted to consider the nine other bills of lading offered in evidence here upon the question of intent, that they must first find that each one of those bills of lading was signed by her with the criminal intent to defraud.” The Court: “ I refuse to charge that. They must find that they were transactions of a similar nature to the one under consideration.”

We think the ruling is correct, though there is plausible argument for error. The question to be determined was the fraudulent intent of the defendant in making and issuing a fictitious bill of lading. As bearing upon that intent, the jury were at liberty to consider the fact that this particular bill of lading was one among a series of fictitious bills, issued at different times, but in fulfillment of a common plan (People v. Marrin, 205 N. Y. 275; People v. Katz, 209 N. Y. 311, 328; Mayer v. People, 80 N. Y. 364; People v. Shulman, 80 N. Y. 373; Wigmore, Evidence, § 302). Each one of them, when shown to be fictitious (People v. Altman, 147 N. Y. 473), cast light upon the intent that was behind the making of every other. The intent was not something to be found separately for each as a preliminary fact, before any one of them could be considered in relation to the bill in controversy, but the mass, when viewed together, had a cumulative value in giving meaning to the parts. A defendant is indicted, let us say, for issuing a counterfeit bank bill. He protests that he issued it innocently. Evidence is offered that he issued another bill, also counterfeit, the day before (People v. Marrin, supra, at p. 285; People v. Dolan, 186 N. Y. 4; People v. Shulman, supra; 1 Wigmore, Evidence, § 309). A finding that there was fraudulent intent in the earlier transaction does not precede the consideration of its significance in relation to the second. The two are to be viewed conjunctively, with all the sidelights east by one upon the other. Repetition reduces the likelihood of mistake or mere coincidence. We miss the evidence of system when we ignore the succession, and concentrate our gaze upon the isolated acts (1 Wigmore, Evidence, §§ 302, 321, p. 637).

What is true of counterfeit money in the case supposed for illustration, is true, and for like reasons, in this case of fabricated documents. The ten forgeries collectively elucidate and characterize the purpose served by each. There is no analogy between such a case and People v. Altman (147 N. Y. 473), where the earlier acts to be compared were not shown to be wrongful. Here the acts are undisputed, and the only element of criminality that is doubtful is the state of mind accompanying them. On the trial the defendant took the position that she had not attempted to imitate the genuine signatures of the agents of the railroad. This circumstance was relied upon as significant, though not decisive, of innocent intention. An expert in handwriting, a witness for the People, examined the signatures, and found the marks of simulation. Here was a situation in which repetition was significant. Correspondences might be thought to be accidental or uncertain if discovered in a single instance. A jury could hardly hold them, to be other than intentional if rediscovered in a dozen. Other phases of the defense bring out the same conclusion. The defendant took the position that in filling out the documents, she followed the orders of superiors, heedlessly and blindly. The People might legitimately contend that the multiplication of the forgeries and the scope of the fraudulent transactions gave opportunity for reflection and for foresight of the consequences. Illustration could be multiplied, but there is no need to elaborate the argument. We are unwilling to announce a rule that an earlier forgery may not even be considered in its bearing on a later one unless found at the outset to have been made with fraudulent intent. The first throws light upon the last, but equally is it true that the last throws light upon the first.

If error, however, were to be assumed, our duty would still be to disregard it as not affecting the result (Code Grim.- Pro. § 542). Again and again the jury were instructed in the body of the charge that the defendant was not to be convicted unless found to have acted with fraudulent intent. If the defendant acted innocently, believing that what she did was right, the jury were to acquit her. The changes were rung upon this theme to such an extent that misunderstanding was impossible. Whatever the significance of documents of earlier date, the jury cannot have been doubtful that unless the particular document set forth in the indictment had been made with fraudulent intent, there must be a verdict of acquittal. In these circumstances, the attempted distinction in respect of quality of intention between this transaction and the others is merely abstract and unreal, without relation to the facts. The defendant would have us suppose that the jury believed the earlier fabrications to be innocent, and yet were swayed by what was innocent to a verdict that the final- one was fraudulent. We do them wrong when we impute to them for the impeachment of their verdict a course of reasoning so tortuous.

A word should be said as to some rulings upon evidence. The trial judge allowed the defendant to testify that she had no intention to defraud and that she believed herself privileged to sign the station agents’ names, though they had not authorized her to do so. He refused at one point to let her say why she believed this, and to state her employers’ instructions with reference thereto. The error, if any, is unimportant, for the facts were brought out later. The defendant stated on her redirect examination that her instructions with reference to the signing of these names had come from her employers; that she supposed they would not act without authority; and that in this belief she signed.

Other rulings challenged in the defendant’s brief are so plainly without error that discussion becomes needless.

The judgment should be affirmed.

His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgment affirmed,