text:
    Mamie Maiorano, as Administratrix of the Estate of Frank Maiorano, Deceased, Appellant, v. Long Island Railroad Company, Respondent.
    Negligence — railroads — motor vehicles — crossing accident — when driver of automobile not guilty of contributory negligence, as matter of law, in crossing tracks while warning bell ' was sounding — burden on defendant to establish contributory negligence of decedent — not conclusively established by evidence that decedent failed to look again after starting to cross — erroneous dismissal of complaint.
    1. A driver of an automobile killed by being struck by a locomotive at a grade crossing is not chargeable with contributory negligence as matter of law because he attempted to cross the tracks while the warning signal was sounding, where there is evidence that he had crossed twice a day for three days during which the bell was ringing practically all of the time, so that the bell might have been out of order, and that a locomotive at th" head of a work train stood on a switch track fifty feet from the highway, the presence of which might have caused the ringing, and where in addition decedent brought his car to a complete stop sixteen feet from the first rail and looked carefully to the right and left.
    2. Nor may decedent be charged with contributory negligence as matter of law by reason of the facts that at the point he stopped his car he could have seen fifteen hundred feet in the direction from which the train approached and it does not appear that he looked again in that direction after he started his car and proceeded to cross at a rate of three miles an hour. It is undisputed that the train approached at the rate of sixty miles an hour and must have traversed the distance to the crossing in about seventeen seconds and there is evidence that a view of the track may have been obscured by smoke from the work train. Many things required decedent’s attention. He had to start and guide his car and watch the locomotive on the work train. The burden of establishing negligence on his part rested on defendant, and under the circumstances it was not established conclusively. A dismissal of the complaint was, therefore, error.

      Maiorano v. Long Island R. R. Co., 216 App. Div. 799, reversed.
    (Argued January 19, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 21, 1926, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.

      W. Bur dell Banister for appellant.
    The trial justice erred in dismissing the complaint, as a matter of law, at close of plaintiff’s case. Plaintiff is entitled, upon appeal, to the benefit not only of all the facts proved, but also to the most favorable inferences reasonably to be drawn therefrom. (Hogan v. N. Y. C. R. R. Co., 208 N. Y. 445; Sackheim v. Pigueron, 215 N. Y. 62; Chamberlain v. Lehigh Valley R. R. Co., 228 N. Y. 233; Carr v. Penn. R. R. Co., 225 N. Y. 44; Tichnor v. Penn. R. R. Co., 208 App. Div. 461; Druskey v. Schenectady R. R. Co., 149 N. Y. Supp. 762; Salt City Express & Trucking Co., Inc., v. N. Y. C. R. R. Co., 213 App. Div. 371.) The deceased was not guilty of contributory negligence, and defendant was guilty of negligence. (Chamberlain v. Lehigh R. R. Co., 228 N. Y. 233; Carr v. Penn. R. R. Co., 225 N. Y. 44.)

      Philip A. Brennan, Matthew J. Keany and Joseph F. Keany for respondent.
    The evidence shows conclusively, as a matter of law, that the deceased was guilty of contributory negligence. (Dolfini v. Erie R. R. Co., 178 N. Y. 1; Keller v. Erie R. R. Co., 183 N. Y. 67; May v. New York C. & H. R. R. R. Co., 137 App. Div. 7; Bonert v. Long Island R. R. Co., 145 App. Div. 552; McSweeney v. Erie R. R. Co., 93 App. Div. 496; Swart v. New York Cen. R. R. Co., 81 App. Div. 402; McAuliffe v. N. Y. Cen. R. R. Co., 88 App. Div. 356; Spencer v. N. Y. Cen. R. R. Co., 123 App. Div. 789; Cassidy v. Fonda, J. & G. R. R. Co., 200 App. Div. 242; 234 N. Y. 599.)
   Kellogg, J.

This action was brought by the administratrix of the estate of Frank Maiorano, who was killed in a collision between an automobile, which he was driving, and a steam locomotive of the defendant, to recover damages for his death. The question in the case is whether or not Maiorano was so clearly shown by the proof to have been contributorily negligent that a dismissal of the complaint was properly granted.

The scene of the collision was a highway crossing of the defendant’s railway tracks by a highway known as Great Neck road. The highway runs north and south. The railway tracks extend easterly and westerly. There are three sets of parallel tracks at the crossing; an eastbound track to the south; a switch track to the north; and between these two a west-bound track. The collision occurred on the center track. The colliding automobile was traveling north at a slow rate. The colliding locomotive was proceeding west at the rate of sixty miles an hour. To the east of the highway, 135 feet distant, was the defendant’s railway station. The building was 32 feet long and 20 feet high. It stood 16 feet to the south of the most southerly rail of the east-bound track. About 100 feet further east, on the same side of the track, and about the same distance therefrom, stood a freight house 25 feet long and 20 feet high. About 10 feet to the south of the freight house there was a thick grove of trees. There was a billboard to the east of the highway, and about 110 feet south of the railway tracks, which was 15 feet high and 110 feet long. The westerly end of the billboard was a short distance from the easterly edge of the highway. As Frank Maiorano drove north on Great Neck road he could have had no view of the railway to the east until he had passed the billboard 110 feet distant from the track. From then on, to a point in . line with the northerly face of the station, or 16 feet from the most southerly rail, his view to the east was greatly restricted by the station, the freight house and the woods, except for a gap between these two latter objects which was not more than 10 feet wide. The evidence is undisputed that he drove his car to a point in line with the station, where he stopped it within about 16 feet of the most southerly rail and 29 feet from the first rail of the west-bound track. It is undisputed that at this point he looked, leaning over the wheel of the car, carefully to the east and to the west several times. At the time a bell was ringing at the crossing. The proof was to the effect that the bell had been ringing for the greater part of three days. On the switch track, beyond the two main tracks, and 50 feet from the highway, stood a locomotive at the head of a work train. Smoke was pouring, from its stack and drifting in a southeasterly direction across the main tracks. One witness testified that she could see the track to the east underneath the smoke. Another witness said: The wind was a puffy wind and the smoke didn’t rise; it hung low.” ■ Another said: “ It was just drifting. It was a heavy day. It just seemed to lay on the air and blowed to the southeast very lazily and slowly.” After looking carefully to the east and west, Maiorano started up his car and, at the rate of three miles an hour, proceeded on his journey to cross the tracks. The rear of his car was struck by a locomotive, drawing a train, going west on the second track from the south.

The trial court seems to have thought that Maiorano was negligent in attempting to cross when the crossing signal was sounding. Maiorano had crossed the tracks twice a day for the three days during which the witnesses say the bell was ringing practically all the time. He may well have thought that the bell was out of order. Or he may have thought, what might truly have been the case, that the ringing was caused by the presence of the locomotive on the switch track. Moreover, Maiorano did give heed to the signal, for he brought his car to a complete stop 16 feet from the first rail, and looked carefully to the right and left. We think there was no negligence on his part in proceeding to cross, notwithstanding the ringing of the bell.

There is evidence that when Maiorano stopped his car he could have seen down the track to the east for a distance of 1,500 feet, at which distance the track made a bend. Even so, it does not clearly appear that the defendant’s west-bound train must have been in sight. It was undisputed that the train was proceeding at the rate of 60 miles an hour. It must have traversed the distance to the crossing in about 17 seconds. Maiorano, then, if the train was just beyond the range of his vision when his car was stationary, in order to have met the train in the collision, needed only to have consumed 17 seconds in starting his car, getting under way, and traveling, at the rate of three miles an hour, a distance of 29 feet plus the length of his car. Clearly it might have required Maiorano this brief period to do these things and make the trip. Therefore, no certainty exists that the train was in sight when Maiorano, 16 feet from the first rail, looked to the east. Moreover, it may well have been that, at that moment, or subsequently, a wisp of smoke from the locomotive of the work train hung down to intercept the view of Maiorano, even though a full view of the track to the east, unobscured by smoke, was had by a witness stationed at a different point. It must be remembered that the burden of establishing negligence on the part of Maiorano rested upon the defendant. Under the circumstances of the case we do not think it to have been established conclusively that Maiorano was negligent. We do not think that, having stopped his car to look, at a point 16 feet from the nearest rail, and having looked carefully both ways, Maiorano, as a matter of law, was negligent in not looking again to the east. Many things required his attention. He had to adjust levers to start his car. He had to guide his car onto and along the roadway. It was necessary for him to watch the locomotive of the work train, which was headed toward the crossing, only 50 feet therefrom. He may well have thought that his greatest danger lay in the sudden starting of that train. Certainly it required watching. Under these circumstances we do not think that Maiorano, as a matter of law, was negligent in failing to look again. For all these reasons a dismissal of the action should not have been made.

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

Cabdozo, Ch. J., Pound, Cbane, Andbews and Lehman, JJ., concur.

Judgments reversed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Marie Helene Fluegel, as Administratrix of the Estate of Ernest J. Fluegel, Deceased, Appellant, v. Frederic R. Coudert, Respondent, Impleaded with Another.
    Negligence — motor vehicles — master and servant — death from negligent operation of automobile by driver upon his own errand without consent and against commands of owner — section 282-e of Highway Law not applicable.
    1. Where, in an action to recover for death alleged to have been occasioned through the negligent operation of an automobile, uncontradicted evidence necessitates the conclusion that the driver of the ear was using it at the time of the accident for his own purposes exclusively, without the permission and against the commands of the defendant, his employer, the plaintiff gains nothing from section 282-e of the Highway Law (Cons. Laws, eh. 25) providing that owners of motor vehicles, operated upon public highways, shall be liable for death or injuries to person or property resulting from their negligent operation by any person legally using the same with the permission, express or implied, of the owner.

      Fluegel v. Coudert, 218 App. Div. 755, affirmed.
    (Argued January 19, 1927;
    decided February 23, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 11, 1926, affirming a judgment in favor of defendant entered upon an order of the court at a Trial Term granting motions to set aside the verdict and for a dismissal of the complaint, in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned by the negligence of defendant.

      Sidney S. Bobbe and Clarence W. Roberts for appellant.
    Since the enactment of section 282-e of the Highway Law, there is a presumption arising from the ownership of an automobile that it is being used with the consent, express or implied, of the owner; and since there was a complete failure to show through Ryan that the respondent had not given him express consent to his use of the car, the presumption remained unrebutted. (Norris v. Kohler, 41 N. Y. 42; Gulliver v. Blauvelt, 14 App. Div. 523; Ferris v. Sterling, 214 N. Y. 249; Van Blaricom v. Dodgson, 220 N. Y. 111; Orlando v. Pioneer B. Towel Co., 239 N. Y. 342.)

      Alfred M. Bailey and Frank J. O’ Neill for respondent.
    The presumption arising from ownership of the automobile driven by Ryan is not that its owner gave him permission to use it. (Ferris v. Sterling, 214 N. Y. 249.)
   Per Curiam.

We think the uncontradicted evidence necessitates the conclusion that the driver of the motor car was using it at the time of the accident for his own purposes exclusively, without the permission and against the commands of the defendant, his employer (Der Ohannessian v. Elliott, 233 N. Y. 326).

This being so, the plaintiff gains nothing from section 282-e of the Highway Law (Consol. Laws, ch. 25), which provides that “ every owner of a motor vehicle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.”

The effect of this statute is to render obsolete the doctrine of such cases as Van Blaricom v. Dodgson (220 N. Y. 111) and Potts v. Pardee (220 N. Y. 431, 436). Liability is no longer dependent upon use or operation by a servant in the “ business ” of a master. Liability is dependent upon legal use or operation in business or otherwise,” with permission or consent. The owner who loans a car to a friend or an employee will be liable hereafter for the negligence of the operator though the loan is unrelated to employment, a mere friendly accommodation. The father will be liable for the negligence of the son to whom he has intrusted the use of the family automobile (Van Blaricom v. Dodgson, supra). We make no attempt at exhaustive enumeration. What has been said will suffice for illustration and example.

The driver employed by this defendant was not using or operating this car with the owner’s permission, express or implied. He was not using or operating it legally. Use or operation without the consent of the owner may now constitute a crime (Penal Law, § 1293-a).

The judgment should be affirmed with costs.

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

Judgment affirmed.


author: Pound, J.

text:
    M. Morton Ansorge, Respondent, v. Corrine P. Kane, Appellant.
    Appeal — vendor and purchaser — contract — specific performance — Court of Appeals may consider merits of appeal though they were involved in decision overruling demurrer not noticed for review — memorandum of purchase and sale of real property stating sum to be paid on signing of contract to be agreed on — failure to agree on amount — contract incomplete and may not be specifically enforced.
    1. The Court of Appeals is not precluded from considering the merits of an appeal because they are involved in a decision of the courts below overruling a demurrer to the complaint and the order entered thereon is not mentioned in the notice of appeal as being brought up for review. The demurrer forms no part of the record and defendant may raise any objection to the maintenance of the action that he does not waive by answering. No distinction in principle exists between the practice on demurrer and the present practice when demurrers are abolished and the same objection is taken by motion. (McCargo v. Jcrgens, 206 N. Y. 363, 370, followed.)
    2. A memorandum of purchase and sale of real property which describes the property, acknowledges the receipt of a sum stated as binder thereon, provides as to the price, the amount to be paid in cash and the amount to remain on mortgage, the date of signing the contract, the date of passing title two months lator, and then provides that the sum to be paid on signing of contract is to be agreed upon, cannot be specifically enforced where the parties never agreed on the sum to be paid. The amount to be paid on the signing of the contract was an important element of the complete contract. It was left open. The law implies nothing as to such terms. The contract was never completed and the transaction was destitute of legal effect.

      Ansorge v. Kane, 216 App. Div. 841, reversed.
    (Argued January 19, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 28, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

      I. Maurice Wormser, Warren I. Lee and J. Harlin O’Connell for appellant.
    A memorandum is not sufficient to satisfy the Statute of Frauds, wherein it is stated that the amount of cash which is to be paid on the signing of the contract is left open for future negotiation between the parties. (St. Regis Paper Co. v. Hubbs & Hastings P. Co., 235 N. Y. 30; Varney v. Ditmars, 217 N. Y. 223; United Press v. N. Y. Press Co., 164 N. Y. 406; Mandel v. Guardian Holding Co., Inc., 200 App. Div. 767; 234 N. Y. 564; Petze v. Morse Dry Dock & Repair Co., 125 App. Div. 267; 195 N. Y. 584; Muller v. Idler, 126 App. Div. 366; Hawksworth v. Durant, 93 Misc. Rep. 149; Lipschitz v. Grace Co., 104 Misc. Rep. 55; 188 App. Div. 912; Spielvogel v. Veit, 197 App. Div. 804; Eisenberg v. Spochira, 190 N. Y. 662.)

      H. H. Nordlinger, Myron Sulzberger and Isidor Enselman for respondent.
    A complete written agreement was reached between the parties. (Williston on Contracts, § 48; Clark New York Law of Contracts, § 67; Newburger v. American Surety Co., 242 N. Y. 141; Wertheimer v. Boehm, 241 N. Y. 575; Weintraub v. Kruse, 234 N. Y. 575; Marks v. Cowdin, 226 N. Y. 138; Sanders v. Pottlitzler Bros., 144 N. Y. 209; Roberge v. Winne, 144 N. Y. 709; Spiritusfabriek Astra v. Sugar Products Co., 176 App. Div. 829; 221 N. Y. 581; Roskam-Scott Co. v.
      Thomas, 175 App. Div. 84; Pelletreau v. Brennan, 113 App. Div. 806; Bayles v. Strong, 104 App. Div. 153; Single Paper Co. v. Hammermill Paper Co., 96 App. Div. 535; McIntosh v. Miner, 53 App. Div. 240; Standard Fashion Co. v. Ostrom, 16 App. Div. 220.)
   Pound, J.

At the threshold we are met with the assertion of the respondent that we may not consider the merits of this appeal because they are involved in a decision of the courts below denying defendant’s motion for judgment on the pleadings on the ground that the complaint does not state facts sufficient to constitute a cause of action, and that the order entered thereon is not mentioned in the notice of appeal as being brought up for review. Suffice it to quote from McCargo v. Jergens (206 N. Y. 363, 370), where Chase, J., says for the court:

The fact that a defendant demurs to a complaint upon the ground that it does not state facts sufficient to constitute a cause of action does not, where such demurrer is withdrawn and leave to answer is given, preclude the defendant from setting up any facts which he might originally have set up by way of answer. * * *

The demurrer in such a case forms no part of the record and the defendant may raise any objection to the maintenance of the action, that he does not waive, by answering. The question whether the facts stated in the pleadings sustain the recovery is before this court for consideration.” We see no distinction in principle between the practice on demurrer and the present practice when demurrers are abolished (Civ. Prac. Act, § 277), and the same objection is taken by motion. The cases cited by the respondent have to do with other shifts of the kaleidoscope and are inapplicable.

The main point is simply stated. Defendant owned real property in Flushing, New York. Plaintiff desired to purchase it. Through her agent the parties came together March 25, 1925, and made a memorandum of purchase and sale which describes the property and acknowledges the receipt of $500 as binder thereon and then provides:

The price is $32,625; payable $12,625 cash; balance of $20,000 to remain on 1st mortgage for five years. The sum to be paid on signing of contract on March 25th, 1925, to be agreed on. The balance of cash payment on passing of title on May 26th, 1925.”'

The parties never agreed on the sum to be paid on signing the contract. When the owner refused to sign a contract or execute a deed the court below ordered specific performance at the suit of the purchaser. That the parties had not agreed was held immaterial. It was said that the agreement in substance was that the balance of the cash payment would be payable when title passed unless the parties in the interim agreed otherwise. (Swedish-Am. Nat. Bank v. Merz, 179 N. Y. Supp. 600.)

Appellant contends that the scheme or plan of the parties was left incomplete by the failure to name the sum to be paid when the contract was signed; and that until the sum was named the contract was unenforcible. (Wright v. Weeks, 25 N. Y. 153, 155.) The memorandum states the price to be paid but it does not state all the terms of payment. The peculiar rules of the Statute of Frauds merely require that to be put in writing which may be left to parol in other cases. The fundamental question here presented is whether there was any contract; any actual meeting of minds on all the material elements of the agreement.

If a material element of a contemplated contract is left for future negotiations, there is no contract enforcible under the Statute of Frauds or otherwise. The price is a material element of any contract of sale and an agreement to agree thereon in the future is too indefinite to be enforcible. (St. Regis Paper Co. v. Hubbs & Hastings Paper Co., 235 N. Y. 30, 36.)

The terms of payment may be no less material. Is this memorandum in effect an agreement to convey the property described if the parties can agree upon the amount to be paid on the signing of the contract but for no sale if they do not agree? Or is the agreement on the sum to be paid on signing the contract a minor and non-essential detail of the transaction? That is the question before us. (Spiritusfabriek Astra v. Sugar Products Co., 176 App. Div. 829, 831; 221 N. Y. 581.) The ■memorandum was on its face a mere binder. The formal contract was to be prepared and executed on the next day. As a part of the agreement was left to future negotiations, the contract was embryonic. It never reached full time. It was not for nothing that the parties provided that a sum should be agreed on to be paid on the signing of the contract; nor was it a minor matter for the owner whether nothing should be paid when the contract was signed and she should wait two months for her money, or whether she should receive a substantial sum, the stronger to bind the agreement, on which she also might receive interest, or even a greater increment, if she had her hands on it. In this connection we observe that the broker demanded that his full commission of ten per cent be paid on the signing of the contract which further suggests that the down payment had more than theoretical importance to the vendor.

The parties had decided to purchase and sell. They had agreed on the purchase price. They had not agreed on the terms of payment. The law implies nothing as to such terms as it does in cases where the rate of interest and date of maturity of a mortgage are not stated (Roberge v. Winne, 144 N. Y. 709, 713; Weintraub v. Kruse, 234 N. Y. 575; Wertheimer v. Boehm, 241 N. Y. 575) or where it appears that an agreement is to take effect and be acted upon before the details reserved for future agreement, such as time of delivery, are settled, when an implication may arise that, in the event of a failure to agree, the terms shall be such as are reasonable or customary. (Spiritusfabriek Astra v. Sugar Products Co., supra.) The amount to be paid on the signing of the contract was an important element of the complete contract. It was left open. The contract was never completed. The transaction was destitute of legal effect. Specific performance is, therefore, impossible. If the contract had been partly performed by the act of the purchaser in taking possession and making improvements, as in Morris v. Ballard (16 Fed. Rep. [2d] 175) and. Roberge v. Winne (supra), equity might grant relief but that question is not presented. The parties have nothing to stand on but their legal rights.

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

Cardozo, Ch. J., Crane, Andrews, Lehman and Kellogg, JJ., concur.

Judgment accordingly.


text:
    In the Matter of the Estate of Frank Crouse, Deceased. Minerva E. Crouse, Appellant; Leo F. Crouse et al., Respondents.
    Will — decedent’s estate — estoppel — mere enumeration of specific articles in residuary clause does not make bequest specific as to such —■ when general legacy to wife not supplanted by mention of specific articles in residuary clause — widow’s exemptions, Surrogate’s Court Act, § 200 — estoppel of widow, by acceptance of enumerated articles in lieu of her interest in household effects, from asserting claim to other articles — entitled to allowance of money or other personal property not exceeding one hundred and fifty dollars.
    1. The mere enumeration of specific articles in a residuary clause will not make the bequest specific as to such articles. The intention of the testator as expressed by the language of the will, read as a whole, should prevail over artificial rules of construction expressed in general terms.
    2. Where testator, by his will, gave specified articles to his son, a stated sum to his wife and the residue of his estate to his grandson, subject, however, to the right of his son to use “ farming implements, horses, harness ” and an interest in a dairy as long as he continued to farm, and an inventory of the estate shows that the residue and the enumerated articles are practically the same, the arrangement does not suggest that testator intended by the mention of specific articles in the residuary clause to supplant the legacy to his wife. The general legacy to the wife plainly was to come first.
    3. Where the widow has agreed in writing with the executor to take and accept certain enumerated articles “ in lieu and in full of all interest in and to the property of said Frank Crouse at the date of his decease in the form of any household furniture and household effects of said decedent,” and no advantage was taken of her, she is estopped from asserting her claim to further articles she would have been entitled to under subdivision 1 of section 200 of the Surrogate’s Court Act, relating to widow’s exemptions. She is, however, entitled, under subdivision 4, to money or other personal property not exceeding in value one hundred and fifty dollars, where there is “ other ” property of that value available.

      Matter of Crouse, 215 App. Div. 736, reversed.
    (Argued January 20, 1927;
    decided February 23, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 23, 1925, which affirmed a decree of the Montgomery County Surrogate’s Court directing distribution of the estate of Frank Crouse, deceased.

      Edward R. Hall and George H. Hall for appellant.
    The gift to respondents is residuary and must defer to the payment of the legacy of $1,000 to petitioner. (Crawford v. McCarthy, 159 N. Y. 514; McCorn v. McCorn, 100 N. Y. 511; Matter of Matthews, 122 App. Div. 605; Redfield’s Law and Practice [6th ed.], 633, § 758; Matter of Sargent, 215 App. Div. 639; Bliven v. Seymour, 88 N. Y. 469.) The legacy of $1,000 to petitioner cannot be cut down by an alleged inconsistent provision in the . residuary clause. (Roseboom v. Roseboom, 81 N. Y. 356; Adams v. Massey, 184 N. Y. 62; Tillman v. Ogren, 227 N. Y. 495.) Respondents were not given specific legacies under the fourth paragraph in the will. (Tifft v. Porter,
      8 N. Y. 516; Matter of Reynolds, 124 N. Y. 388; Matter of Sargent, 215 App. Div. 639; Le Rougetel v. Mann, 63 N. H. 472; Pierrepont v. Edwards, 25 N. Y. 128.)

      George C. Butler for respondents.
    The gift to the grandson, Leo Crouse, of the personal property mentioned in the fourth paragraph of the will is a specific legacy, it being a bequest of a particular thing. (Matter of Reynolds, 124 N. Y. 388; Matter of Lowe, 149 App. Div. 347; Matter of Matthews, 122 App. Div. 605; Trust Co. v. Plummer, 142 Mass. 257; Matter of Delaney’s Will, 133 App. Div. 409; Getman v. McMahon, 50 Hun, 531; Crawford v. McCarthy, 159 N. Y. 514.) The fact that the specific bequest is contained in the residuary clause of the will makes it no less a specific bequest. (Matter of Reynolds, 124 N. Y. 388.) The bequest of $1,000 to petitioner is a general legacy and must fail of payment as there is not sufficient property with which to pay the same, because a specific legacy is not subject to abatement with general legacies on a deficiency of assets. (Toch v. Toch, 81 Hun, 410; Wallace v. Wallace, 23 N. H. 149; Humphrey v. Robinson, 52 Hun, 200.) The agreement between petitioner and Raymond Crouse, executor, is valid and binding upon petitioner. (Matter of Campbell’s Estate, 48 Misc. Rep. 278; Manufacturers & Traders’ Bank v. Hazard, 30 N. Y. 226.)
   Pound, J.

Small causes establish great principles but no great principle is to be established in this contest over the meager estate of a tenant farmer. The only question is whether the testator so expressed his intention to make provision for his wife, son and grandson that the law can determine such intention and apply well-known rules to give it legal effect. The right to litigate is common to rich and poor but a disposition to adjust family differences without litigation, although resulting is mutual sacrifices of asserted legal rights, might have kept this controversy out of the courts. It is now before us, however, and if the litigants lose, the law is enriched by another precedent.

Frank Crouse on January 22, 1921, made and executed his last will and testament. He died April 2, 1923. His will was admitted to probate in' the Surrogate’s Court of Montgomery county. The general inventory of his estate totaled the sum of $3,861.75. He left a wife, Minerva, sixty years of age; a son, Raymond, thirty-five years of age, and a grandson, Leo, five years of age. By his will he first bequeathed his automobile and his tractor, which are inventoried at $700, to his son; he then gave his wife the sum of One Thousand Dollars; ” he then provided as follows:

“Fourth: All the rest, residue and remainder of my estate of every name and nature, both real and personal, I hereby give, devise and bequeath to my grandson Leo Frank Crouse, son of my said son Raymond Crouse, to be paid and delivered to him upon his becoming twenty-one years of age, subject, however, to the right of my said son Raymond Crouse, to have the use of all my farming implements, horses, harness and the use and income from the undivided one-half interest in the dairy of cows on the farm now occupied by me belonging to Earl Bellinger. But upon my said son Raymond ceasing to farm, said personal property shall be sold by my executor and the proceeds thereof invested and paid to my said grandson Leo, upon his arriving at the age of twenty-one years.”

Outside of the farming equipment, the automobile and household furniture, testator had no property when he died. The courts below have found that the legacy of $1,000 to the wife was wholly abated. They agree that the proper rule to apply is that, in the absence of an indicated intent to the contrary as to the order of abatement, a bequest of a residuum abates before general legacies while general legacies yield to specific legacies. (Crawford v. McCarthy, 159 N. Y. 514; McCorn v. McCorn, 100 N. Y. 511, 514.) They have found an indicated intent to the contrary in this instance in the language of the residuary clause which mentions specific articles and have read therein a specific bequest of such articles to the son Raymond. Because the residue and the enumerated articles are practically the same it has been held that the wife takes nothing. But the mere enumeration of specific articles in a residuary clause will not make the bequest specific as to such articles, although the gift may be regarded as specific if the articles are so named as to distinguish them from the residue, as by the words together with,” “ as well as ” and also ” or the like. (Le Rougetel v. Mann, 63 N. H. 472; Matter of Kemp’s Estate, 169 Mich. 578.) The intention of the testator as expressed by the language of the will, read as a whole, should, however, prevail over artificial rules of construction expressed in general terms.

It is doubtful whether testator fully apprehended the distinction between specific and general legacies or the complications that would arise in the administration of his estate, but the use of the word “ residue significantly suggests that he had in mind something which might remain after paying his wife her legacy.

Looking at the facts in the aspect most favorable to the son, it appears that testator did not intend to bequeath the articles enumerated in the residuary clause except for the use of his son until he ceased to farm. If the son ceased to farm, which he might do to-morrow, the articles were then to be sold and to become a part of the residuary estate. The testator, after providing for his wife, evidently desired to make provision for his son to carry on the farm if he so desired with what was left of the estate. This arrangement does not suggest that he intended by the mention of specific articles in the residuary clause to supplant the legacy to his wife. The creation of a residue which shall include and not exclude the farming equipment is clearly expressed. The general legacy to the wife plainly was to come first. Otherwise we would say that either the testator or the law mocked the widow with a mere polite phrase, not having or intended to have any efficacy.

Further questions arise under section 200 of the Surrogate’s Court Act in relation to the widow’s exemptions. Under subdivision 1 she is entitled to “ all housekeeping utensils, musical instruments, sewing machine and household furniture used in and about the house and premises, fuel and provisions, and the clothing of the deceased, in all not exceeding in value five hundred dollars.” She agreed in writing with the executor to take and accept certain enumerated articles “ in lieu and in full of all interest in and to the property of said Frank Crouse at the date of his decease in the form of any household furniture and household effects of said decedent.” The enumerated articles were less than $500 in value and did not include all the articles enumerated in section 200, subdivision 1. But she voluntarily relinquished her right, which the law implies that she knew, to the larger exemption. She has, therefore, elected to dispense with that which at her option she might have demanded or insisted upon, and she may not now insist thereon. As no advantage was taken of her, her conduct will estop her from asserting her claim to further articles under subdivision 1 after the executor has taken them and included them in the inventory. (Cowenhoven v. Ball, 118 N. Y. 231, 234.)

Under section 200, subdivision 3, the widow is entitled to domestic animals with their necessary food for sixty days, not exceeding in value one hundred and fifty dollars, and under subdivision 4 to money or other personal property not exceeding in value one hundred and fifty dollars. She has had set off to her under subdivision 3 an interest in the undivided live stock to the extent of $150,” but she has had no allowance under subdivision 4, although there is other personal property ” to the value of $150 available therefor. Section 200 provides that “ no allowance shall be made in money or other property under subdivisions one, two and three if the articles mentioned therein do not exist.” The allowance under subdivision 3 has not been questioned by the executor. An allowance under subdivision 4 should also be made.

The decree of the Surrogate’s Court and the order of the Appellate Division should be reversed, with costs in all courts, payable out of the estate, and the matter remitted to the Surrogate’s Court for final action in accordance with this opinion.

Cardozo, Ch. J., Crane, Andrews and Lehman, JJ., concur; Kellogg, J., not sitting.

Ordered accordingly.


author: Lehman, J.

text:
    Mary M. Ledwith, Appellant, v. Otto A. Rosalsky, Respondent.
    New York city — officers — corporation counsel — judges — judge of Court of General Sessions not an officer in service of city or county of New York — corporation counsel of city of New York may not appear and defend action brought against him — appearance and demand for copy of complaint not void — corporation counsel appears as attorney as well as city officer and his appearance and demand may not be vacated — defendant directed to substitute another attorney.
    1. A judge of the Court of General Sessions in and for the county of New York is not an “ officer ” in the service of the city or county of New York within the meaning of section 256 of the city charter (L. 1917, ch. 602), providing that the corporation counsel may appear in any action or proceeding brought against any officer “ in the service of the city of New York, or of any of the counties embraced therein, by reason of acts done or omitted while in the performance of his duty.”
    2. The corporation counsel of the city of New York, therefore, may not appear and defend an action brought against a judge of the Court of General Sessions, but where, pursuant to the request of such a defendant, he appeared in an action, in which a summons only had been served and demanded a copy of the complaint, the appearance is not entirely void. The corporation counsel appears in court not only as an officer of the city of New York but as an attorney at law and officer of the court and the statute has not attempted to dictate the effect of his appearance as an attorney for a defendant other than the city. The defendant, therefore, is not in default since ho has appeared by an attorney at law duly authorized to appear for him and the court may not vacate the notice of appearance and demand. It should, however, direct the defendant to substitute another attorney.

      Ledwith v. Rosalsky, 217 App. Div. 749, reversed.
    (Argued January 12, 1927;
    decided February 23, 1927.).
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 11, 1926, which affirmed an order of Special Term denying a motion to vacate a notice of appearance as defendant’s attorney.
    The following questions were certified:

      “ 1. Does defendant’s affidavit show any act on his part, in its nature official, performed or performable by the Court of General Sessions or a judge thereof, within their jurisdiction as defined and limited by the Code of Criminal Procedure?

      “ 2. Does the jurisdiction of the Court of General Sessions or of a judge thereof extend to the subject-matter of insanity, either for inquiry thereinto or commitment for such purpose, except as incidental to a criminal action or proceeding?

      “ 3. Is a judge of the Court of General Sessions of the county of New York an ‘ officer ’ within the intendment of sections 255 or 256 of the New York city charter?

      “ 4. Before the service of the complaint and the disclosure thereby of the gravamen of plaintiff’s cause of action as a basis for the exercise of discretion by the corporation counsel, were not the request to, and the appearance by, the corporation counsel on behalf of the defendant, premature? ”

      Julius Albers for appellant.
    A judge of the Court of General Sessions of the county of New York is not an “ officer ” within the intendment of sections 255 or 256 of the New York city charter. (Donahue v. Keeshan, 91 App. Div. 602; Briggs v. Lahey, 101 App. Div. 136; Dixon v. People, 53 Colo. 527; Chickasha Cotton Oil Co. v. Lamb, 114 Okla. 337; State v. Breckenridge, 34 Okla. 649; Matter of Richards, 179 App: Div. 823; 221 N. Y. 684; Prendergast v. Cohalan, 101 Misc. Rep. 712; 179 App. Div. 883; 226 N. Y. 636; People v. N. Y. Ct. of Gen. Sessions, 13 Hun, 398; Whitmore v. Mayor, 67 N. Y. 21.)

      George P. Nicholson, Corporation Counsel {Joseph P. Reilly of counsel), for respondent.
    Judges of the Court of General Sessions of the city and county of New York come within the intendment of sections 255 and 256 of the Greater New York charter (L. 1901, ch. 466).
   Lehman, J.

The defendant is a judge of the Court of General Sessions in and for the county of New York. The plaintiff has served a summons upon him in this action. No complaint has been served and the nature of the action has not been disclosed. On April 16th, 1923, the defendant committed one Thomas A. Ledwith to Bellevue Hospital as an apparently insane person. While Ledwith was held in custody under this commitment, a writ of habeas corpus was obtained upon the relation of Mary M. Ledwith, his wife. Upon appeal from the order of the Appellate Division which dismissed the writ, this court reversed the order and Ledwith was discharged from custody. (People ex rel. Ledwith v. Bellevue Hospital, 238 N. Y. 403.) Mary M. Ledwith thereafter has brought this action. The defendant assumed that the action is based upon the fact that he issued a warrant for the arrest of Thomas A. Ledwith and then committed him to Bellevue Hospital as an apparently insane person, and he has requested the corporation counsel of the city of New York in writing to appear in this action as his attorney and defend the same in his behalf. Pursuant to this request a notice of appearance and demand for a copy of the complaint was served. This notice is subscribed George P. Nicholson, Corporation Counsel of the City of New York, Attorney for the Defendant.”

The plaintiff moved for an order striking out and vacating the said notice of Appearance as null and void and of no effect, on the ground that the said George P. Nicholson, as corporation counsel, has no authority to appear as attorney for the defendant herein, and for such other or further relief as may be just.” The motion was denied at Special Term, and the order denying the motion was affirmed by the Appellate Division, which has granted leave to appeal to this court certifying four questions for review.

The duties and functions of the corporation counsel of the city of New York are regulated by statute. Section 256 of the Greater New York charter provides that neither the corporation counsel nor any of his assistants shall appear as attorney or counsel in any action or litigation except in discharge of his official duties, * * * but the corporation counsel may in his discretion appear or direct any of his assistants so to do in any action or proceeding, criminal or civil, brought against any officer, subordinate or employee in the service of the City of New York, or of any of the counties embraced therein, by reason of any acts done or omitted while in the performance of his duty by such officer, subordinate or employee, whenever said appearance is requested by the head of the department, office or bureau in which said officer, subordinate or employee is employed.”

Unless the defendant is an officer ” in the service of the city or county of New York within the intendment of the statute, the corporation counsel may not appear for him, even though the action is brought by reason of acts done or omitted by the defendant while in the performance of his duties as a judge of the Court of General Sessions in and for the county of New York. Though this court decided that Thomas Ledwith should be discharged from custody under the order committing him as an apparently insane person, its decision was not based on any ground of invalidity of the order because of want of jurisdiction in the court or judge making the order, but solely on the ground that the time during which Ledwith might be held in custody thereunder without further hearing had expired. We assumed, if we did not directly decide, that the original order was valid and that the defendant acted within his jurisidction as judge of the Court of General Sessions. (People ex rel. Ledwith v. Bellevue Hospital, supra.) We may make the same assumption now and proceed to consideration of the question of whether the defendant is an officer of the city or county of New York within the intendment of the provisions of the charter, since negative answer to this question alone is decisive of this appeal, regardless of the answer that we should give to the other questions certified by the Appellate Division.

It may be that in some sense a judge of a court established “ in and for ” a city or county may be said to be a city or county officer or even an officer in the “ service ” of that city or county. Sometimes constitutional or statutory provision requires such construction. (Matter of Salary Superior Court Judges, 82 Wash. 623; Wolf v. Hope, 210 Ill. 50; Perry v. Bianchi, 96 N. J. Law, 113; People ex rel. Garrity v. Walsh, 181 App. Div. 118; Matter of Compensation of County Judges, 18 Colo. 272.) Except in a special and limited sense a judge may hardly be regarded as an officer of a local governmental agency merely because the court is established in and for a subdivision of the State. “It is clear that the selection by the organic law of a local sub-division of the state known as a county,’ for and within which to establish a court, does not make the functions of the court, county functions, or the officers of the court, county officers. A court of record is essentially not an office; it is an institution, an entity, or agency within itself, invested with certain functions, just as the county is another agency within itself, invested with other duties to perform.” (Dixon v. People, 53 Colo. 527; People ex rel. Douvielle v. Board of Supervisors of Manistee County, 40 Mich. 585; State ex rel. Simpson v. Fleming, 112 Minn. 136; State ex rel. Devening v. Bartholomew, 176 Ind. 182; State ex rel. Buchanan County v. Imel, 242 Mo. 293; Day v. Buffington, 11 Wall. 193; Freedman v. Sigel, 10 Blatchf. 327.)

We must determine the sense in which the Legislature in the statute under consideration used the words officer * * * in the service of the City of New York or of any of the counties embraced therein.” This court has held in construing other statutes that a clerk of the District Court of the city of New York is a “ judicial officer, embraced within the judiciary system of the State ” and not strictly a city officer. If the Legislature intended to embrace other than strictly city officers, it must be presumed that the statute would have so declared in express terms.” (Whitmore v. Mayor, etc., of N. Y., 67 N. Y. 21.) So we have held that the surrogate of the county of New York is not an official or employee of the city or county of New York within the meaning of section 149-a of the charter.” (Matter of Prendergast v. Cohalan, 101 Misc. Rep. 712; affd., 179 App. Div. 883; 226 N. Y. 636.)

There are no words in the charter provision under consideration which indicate any intent to include judicial officers who are performing a function of the State and are part of the judiciary system of the State in the description of officers in the “ service ” of the city or county of New York. Indeed, the language of the statute seems rather to exclude such intent, for it may hardly be said that a judge is employed ” in a city or county department, office or bureau. The corporation counsel is, therefore, not permitted by the provisions of the charter to appear for the defendant.

The parties have assumed that if the corporation counsel is not permitted by statute to appear for the defendant, the appearance which has been entered is void and must be stricken out. Such relief has been granted on similar assumption in Donahue v. Keeshan (91 App. Div. 602). The plaintiff may challenge the right of the corporation counsel to appear for the defendant. The State prohibits such appearance, and the plaintiff is aggrieved thereby. It does not follow that appearance by the corporation counsel is entirely void. He is an officer of the court and he has received authority from the defendant to represent him.

Though the functions and powers of the corporation counsel in his official capacity as an officer of the city of New York are determined by the provisions of the statute, he appears in court not only as an officer of the city of New York but as an attorney at law and officer of the court. The Legislature has limited his right to appear as an officer of the city of New York; it has not attempted to dictate the effect of an appearance as an attorney at law for a defendant other than the city, though such appearance transcends the limits of his official powers as corporation counsel. When the plaintiff challenges the right of the corporation counsel to appear for the defendant the court may direct its officer to confine his activities as an attorney at law in accordance with the interpretation which the court places upon the statute regulating the functions and powers of the corporation counsel, but such direction does not nullify the earlier appearance as attorney at law. The defendant is not in default since he has appeared by an attorney at law duly authorized by him to appear for him. He may not be placed in default because under mistaken interpretation of the statute the attorney believed that such appearance came within the scope of his duty as corporation counsel. Though the court may not vacate the notice of appearance and demand, it should under the plaintiff’s general prayer for “ other and further relief ” make an order compelling the defendant to substitute another attorney within ten days after notice of entry of order herein.

Order of the Appellate Division and that of Special Term should be reversed, without costs, and motion granted to the extent indicated in the opinion and the third question certified answered in the negative; other questions not answered.

Cabdozo, Ch. J., Pound, Cbane and Andbews, JJ., concur; Kellogg, J., absent.

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. John Farson, Appellant.
    Statutory crimes — manipulation, of prices of securities — indictment — validity of indictment not affected by words which may be rejected as surplusage — test of sufficiency — indictment charging continuing offense — demurrer thereto on ground of insufficient identification of the acts relied on properly overruled — function of bill of particulars to indicate particular transactions.
    1. The validity of an indictment is not affected by the words “ and by divers other fictitious transactions and devices a more particular description of which is to the grand jury aforesaid unknown.” They are uncertain but may be rejected as surplusage.
    2. An indictment is sufficient if it identifies the charge against the defendant so that his conviction or acquittal may prevent a subsequent charge for the same offense; notifies him of the nature and character of the crime charged against him to the end that he may prepare his defense; and enables the court upon conviction to pronounce judgment according to the right of the case. In applying the test of sufficiency, the indictment should be liberally construed and an objection thereto rejected if technical or impracticable.
    3. In drafting an indictment it is sufficient to follow the statutory language it if contains all that is essential to constitute the crime and apprise the accused of the nature of the crime charged. But where analogous offenses at common law require more particular allegations or where such language would not fairly inform the accused of the nature of the charge preferred against him, the act charged must be defined with greater particularity.
    4. An indictment charging defendant with the crime of manipulation of prices of securities (Penal Law, § 953) and alleging that defendant in the city of New York, between stated dates, feloniously inflated and attempted to inflate the market price of the stock of a named corporation, by means of pretended purchases and sales of such stock for and on account of the said defendant, whereby neither in whole nor in part was a simultaneous change of ownership of or interest in such stocks effected, sufficiently sets forth the statutory offense and a demurrer thereto, on the ground of insufficient identification of the pretended purchases and sales relied on, is properly overruled. It is the function of a bill of particulars rather than the indictment to indicate the particular transactions.

      People v. Farson, 218 App. Div. 488, affirmed.
    (Argued January 24, 1927;
    decided February 23, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 13, 1926, which reversed an order of the Court of General Sessions of the county of New York sustaining a demurrer to the indictment and overruled such demurrer.

      Robert S. Johnstone, Charles Albert Perkins and Saul S. Myers for appellant.
    The indictment does not contain a plain and concise statement of the act constituting the crime. (People v. Hoyt, 145 App. Div. 695; 205 N. Y. 533; People v. Dumar, 106 N. Y. 502; People v. Peckens, 153 N. Y. 576; People v. Helmer, 154 N. Y. 596; People v. Willis, 158 N. Y. 392; People v. Klipfel, 160 N. Y. 371; People v. Kane, 161 N. Y. 380; People v. Corbalis, 178 N. Y. 516; Pettibone v. United States, 148 U. S. 197; United States v. Carll, 105 U. S. 611; United States v. Cruikshank, 92 U. S. 542; Armour Packing Co. v. United States, 209 U. S. 56.)

      Joab H. Banton, District Attorney (Robert C. Taylor of counsel), for respondent.
    The demurrer upon the ground that the indictment did not conform to sections 275 and 276 of the Code of Criminal Procedure, as it did not contain a plain and concise statement of the act constituting the crime; that it charged more than one crime in violation of sections 278 and 279; and that the facts stated did not constitute a crime was properly overruled. (People v. Seldner, 62 App. Div. 357; People v. Bush, 4 Hill, 133; People v. Farrell, 28 N. Y. St. Repr. 43; People v. Dorthy, 20 App. Div. 308.)
   Pound, J.

Penal Law, § 953, reads as follows:

“ Manipulation of prices of securities.

Any person, who inflates, depresses, or causes fluctuations in, or attempts to inflate, depress or cause fluctuations in, or combines or conspires with any other person or persons to inflate, depress or cause fluctuations in, the market prices of the stocks, bonds or other evidences of debt of a corporation, .company or association, or of an issue or any part of an issue of the stock, bonds or evidences of debt of a corporation, company or association, by means of pretended purchases and sales thereof, or by any other fictitious transactions or devices, for or on account of such person or of any other person, or for or on account of the persons so combining or conspiring, whereby either in whole or in part a simultaneous change of ownership of or interest in such stocks, bonds or evidences of debt, or of such issue or part of an issue thereof, is not effected, is guilty of a felony, punishable by a fine of not more than five thousand dollars or by imprisonment for not more than two years, or by both.

A pretended purchase or sale of any such stocks, bonds or other evidences of debt whereby, in whole or in part, no simultaneous change of ownership or interest therein is effected, shall be prima facie evidence of the violation of this section by the person or persons taking part in the transaction of such pretended purchase or sale.”

Defendant was indicted for a violation of this section. The indictment charges defendant with the crime of manipulation of prices of securities and alleges that such crime was committed as follows:

The said defendant in the City and County of New York, on and from the 29th day of April, 1919, and thence to and including the 17th day of July, 1919, feloniously did inflate and attempt to inflate the market price of the stock of a certain corporation, company and association called Hercules Petroleum Company, by means of pretended purchases and sales of such stock and by divers other fictitious transactions and devices, a more particular description of which is to the Grand Jury aforesaid unknown, for and on account of the said defendant, whereby neither in whole nor in part was a simultaneous change of ownership of or interest in such stocks effected, as he, the said defendant, then and there well knew.”

Defendant demurred to the indictment on the grounds: (1) That it does not contain a plain and concise statement of the act constituting the crime, as required by Code Criminal Procedure (§§ 275-276); (2) that it charges more than one crime; (3) that the facts stated do not constitute a crime. The Trial Term sustained the demurrer but the Appellate Division overruled it.

At the beginning we may reject as surplusage the words: and by divers other fictitious transactions and devices, a more particular description of which is to the Grand Jury aforesaid unknown.” They are clearly too uncertain in failing to state what such fictitious transactions and devices were. The validity of the indictment is not affected thereby. (Lohman v. People, 1 N. Y. 379; Commonwealth v. Bolkom, 3 Pick. 280.)

Defendant contends that the act constituting the crime is not sufficiently stated by the allegations that on and between certain dates defendant feloniously inflated and attempted to inflate the market price of the stock of a certain corporation by means of pretended purchases and sales of such stock for and on account of defendant whereby neither in whole or in part was a simultaneous change of ownership of or interest in such stocks effected; that the indictment should contain averments to identify the particular pretended purchases and sales relied on to sustain the charge and state the specific acts which constituted them, such as from whom the purchases were made and to whom the sales were made. The People contend that the indictment states all the circumstances which constitute the definition of the offense in the statute itself, and more, so that the accused is brought precisely within it and that no other description of the way in which the offense was committed is necessary. (Phelps v. People, 72 N. Y. 334, 349; People v. Weldon, 111 N. Y. 569; People v. Willis, 158 N. Y. 392, 393.)

In drafting an indictment it is sufficient to follow the statutory language if it contains all that is essential to constitute the crime and apprise the accused of the nature of the crime charged. But where analogous offenses at common law require more particular allegations or where such language would not fairly' inform the accused of the nature of the charge preferred against him, the act charged must be defined with greater particularity. (Jelke v. U. S., 255 Fed. Rep. 264, 274, 275.) In applying this test we are to construe the indictment liberally and reject the objection if it is technical or impracticable. The indictment is sufficient if it identifies the charge against the defendant so that his conviction or acquittal may prevent a subsequent charge for the same offense; notifies him of the nature and character of the crime charged against him to the end that he may prepare his defense; and enables the court upon conviction to pronounce judgment according to the right of the case. (Code Crim. Pro. §§ 284, 285; People v. Williams, 243 N. Y. 162.)

Starting with these fundamental rules we are met with much difficulty in their practical application. A wealth of authority is to be found in the books both for and against the sufficiency of indictments challenged for lack of definiteness. (31 C. J. 71A-720.) They are helpful but by no means controlling. No accumulation of such decisions will sustain this indictment nor condemn it. Illegal sales of liquor may be charged without naming the persons to whom the sales were made. (People v. Seeley, 105 App. Div. 149; 183 N. Y. 544.) But Cullen, J., in People v. Corbalis (178 N. Y. 516), which was a peculiar case under a peculiar statute, said that a charge of pool-selling should name the person to whom the sale had been made to identify the occurrence and enable the defendant properly to meet the charge, although an allegation of sales to persons unknown would be sufficient. Parker, Ch. J., in the same case took the view which Cullen, J., rejected that a charge of poolselling must state how the crime was committed, whether by placing a wager, maintaining a building or by some other act included in the statutory definition of poolselling. Cullen, J., said that there is only one way of engaging in poolselling and that is by selling pools. In People v. Devinny (227 N. Y. 397) His cock, Ch. J., following Cullen, J., in the Corbalis case, asserted that in charging the illegal practice of medicine, the language of the New York statute precluded the application of the rule that a general description is enough where the crime consists of a series of continuous acts grouped together, such as keeping a disorderly house. (King v. People, 83 N. Y. 587.) He wrote that the law requires that the person treated for disease should be named in the indictment. Three of the judges dissented. The same difference of opinion is constantly recurring as in the opinions of the courts below in this case.

Here we have a crime known as manipulation of prices of securities.” It consists inter alia in inflating or attempting to inflate the market price of stocks. The act constituting the crime, i. e., the manner and means by which the crime is committed, is stated to be the pretended purchases and sales of stocks whereby in whole or in part a simultaneous change of ownership in such stocks is not effected. We also have the name of the stock dealt in and the charge that the crime was committed in the manner indicated at a certain place and on and between certain dates and that the pretended purchases and sales were for and on account of the defendant. The crime might be committed by a single transaction as words in the plural include the singular (General Construction Law, § 35; Cons. Laws, ch. 22), but it is here charged as a series of acts, a number of pretended purchases and sales, on and from April 29 to and including July 17,1919, the combined effect of which may have been necessary to constitute the inflation of prices charged. What more does the defendant require? It is imagined that he might have engaged in many transactions in Hercules Petroleum Company stock during the period in question, and that he must know exactly what sales the People intend to rely on as pretended in order to prepare his defense. But he knows that they are to rely on some purchases and sales of the stock named during the period mentioned and it is the function of a bill of particulars rather than the indictment to indicate the particular transactions. (People v. Williams, supra.) After conviction or acquittal on this charge, he may not again be tried for any pretended sales or purchases of the stock in question between the dates mentioned. A plea of former judgment of conviction or acquittal of the crime charged would be sustained. (Code Crim. Pro. § 332.) The principle is well settled that an acquittal or a conviction upon a charge that a continuing offense has been committed during a specified time will be a bar to another prosecution for a like offense for another specified time which includes any part of the time named in the first charge. (Commonwealth v. Peretz, 212 Mass. 253, 254.)

All the special or particular means employed in the commission of the offense need not be set out in the indictment. (Burton v. U. S., 202 U. S. 344, 372.) The crime is sufficiently identified (People v. West, 106 N. Y. 293) and the further particulars constituting the offense are matters of evidence which need not be set forth. (People v. Knapp, 206 N. Y. 373, 384.)

An analogy is sought between the crime charged and the crime of obtaining property by false pretenses, where the indictment must state what the false pretenses were. (People v. Blanchard, 90 N. Y. 314, 319.) Such analogies, although many may be found, are mostly illusory. The same historic reasons which require tfie false pretenses to be stated permit a common-law indictment for larceny in the words “ steal, take and carry away to be supported by proof of larceny by trick or device. (People v. Miller, 169 N. Y. 339.) Furthermore false pretenses is the gist of the offense charged while here the offense is the manipulation of the stock market. In cases of murder in the first degree an indictment charging that defendant “ willfully, feloniously and of malice aforethought shot and killed A. B. with a revolver has been held sufficient to cover a charge of felony homicide. (People v. Nichols, 230 N. Y. 221.) General terms of law having a common-law significance seldom particularize the act charged. They have obtained a meaning sanctified by age.

We are not bound by precédent in determining what is a good indictment under Penal Law, section 953, for there are no precedents. We seek a guiding principle. We should not start with narrow and technical objections as to form. (Code Crim. Pro. § 285; People v. Spiegel, 143 N. Y. 107, 111.) The statutory offense is sufficiently set forth and the demurrer was properly overruled.

The order should be affirmed.

Cardozo, Ch. J., Crane and Andrews, JJ., concur; Lehman and Kellogg, JJ., dissent.

Order affirmed.


author: O’Brien, J.

text:
    Frank C. Titus, Appellant, v. Neville J. Booker et al., Respondents.
    Stocks and stockholders —■ foreign laws — statute of foreign State requiring judgment against corporation and return of execution unsatisfied in that State as condition to action by creditor against stockholder to recover amount unpaid on stock — judgment and return of execution unsatisfied in this State insufficient to sustain action here based upon such statute.
    1. Sections 20 and 49 of the General Corporation Law of Delaware (22 Del. Laws, eh. 394) providing that a creditor of a corporation, organized under that law, may maintain an action against any stockholder to compel payment of any balance unpaid on capital stock held by him, contemplates an action to be brought in Delaware against the corporation and an execution to be issued and returned unsatisfied in that State prior to the maintenance of an action against individual stockholders.
    2. A judgment recovered in this State, therefore, against a Delaware corporation, and the return of an execution unsatisfied, is no sufficient basis for the maintenance here of an action at law by a single creditor, suing in his own behalf, under the law o'f Delaware, to compel stockholders of the corporation, residing in this State, to pay so much of the sum necessary to complete the amount of the par value of the stock held by each of them as shall be required to satisfy the judgment. The complaint, therefore, was properly dismissed.

      Titus v. Booker, 216 App. Div. 608, affirmed.
    (Argued January 25, 1927;
    decided February 23, 1927.)
    Appeal from a judgment, entered July 7, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion by defendants for a dismissal of the complaint and granted said motion.

      Eugene A. Sherpick, Harold R. Medina and William Gilbert for appellant.
    The Delaware statute provides no exclusive or peculiar remedy preventing or limiting the enforcement of the substantive right created outside of the forum, and that the contractual right and obligation which it creates being lawful where made is enforcible everywhere. (Du Pont v. Ball, 106 Atl. Rep. 39; Shipman v. Treadwell, 200 N. Y. 472; Howarth v. Angle, 162 N. Y. 179.)

      R. Randolph Hicks and Thomas F. Compton for Neville J. Booker et al., respondents.
    The relief sought by the plaintiff is based entirely upon the statutory liability imposed by the laws of Delaware giving creditors a peculiar and exclusive remedy and will not be granted by the courts of this State.' (Christensen v. Eno, 106 N. Y. 97; Marshall v. Sherman, 148 N. Y. 9; Knickerbocker Trust Co. v. Iselin, 185 N. Y. 54; Bottlers Seal Co. v. Rainey, 243 N. Y. 333.)

      William R. Crawford and Dean Emery for Dean Emery, respondent.
    The cause of action set forth in the complaint cannot be maintained in this State. (Marshall v. Sherman, 148 N. Y. 9; Flash v. Conn, 109 U. S. 371; Cooney v. Arlington Hotel Co., 101 Atl. Rep. 879; Shipman v. Treadwell, 200 N. Y. 472; Knickerbocker Trust Co. v. Iselin, 185 N. Y. 54.)
   O’Brien, J.

Plaintiffs’ assignor recovered a judgment in this State against a Delaware corporation, but the execution was returned unsatisfied and the supplementary proceedings revealed no assets. Any assets, if existing, are insufficient to satisfy the claims of creditors and especially of this plaintiff. Defendants are among the stockholders of this corporation, but whether they constitute all of them or even all those resident in' this State we are not informed by the record. They either have paid nothing for their stock or have paid less than the par value, which is one dollar per share. The whole capital stock has not been paid in.

Plaintiff, as a single creditor, suing in an action at law, solely in his own behalf, demands judgment against these defendants, personally, for such proportion of the sum necessary to complete the amount of the par value of each share of stock held by each of them as shall be required to satisfy the judgment obtained by his assignor. The complaint is based upon sections 20 and 49 of the General Corporation Law of Delaware (22 Delaware Laws, ch. 394) which provides:

Sec. 20. Stockholders, liability for part paid for stock: When the whole capital stock of a corporation shall not have been paid in, and the assets shall be insufficient to satisfy the claims of its creditors, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of the par value of such share as fixed by the charter of the company or its certificate of incorporation, or such proportion of that sum as shall be required to satisfy the debts of the company, in the case of stock without par value, this liability shall be limited to the unpaid balance of the consideration for which such stock was issued by the corporation, which said sum or proportion thereof may be recovered as provided for in Section 49 of this Chapter, after a writ of execution against the corporation has been returned unsatisfied, as provided for in Section 51 of this Chapter.”

“ Sec. 49. Liability of Officers, etc.— Actions for: When the officers, directors or stockholders of any corporation organized under this Chapter shall be liable by the provisions of this Chapter to pay the debts of the corporation, or any part thereof, any person to whom they are liable may have an action on the case against any one or more of them, and the declaration shall state the claim against the corporation, and the ground on which the plaintiff expects to charge the defendants personally; or the person to whom they are liable may have his remedy by bill in Chancery.”

We think it clear that this statute contemplates an action to be brought in Delaware against the corporation and an execution to be issued and returned unsatisfied in that State prior to the maintenance of an action against individual stockholders. The reference to section 51 strengthens our opinion. Indeed, the statute, in its entirety bears the stamp of an intention to enforce it locally. We ought not to assume to interpret it beyond this point but leave that function to the Delaware courts. If a judgment shall be obtained against the corporation in Delaware in conformity with the law as declared by the courts of that State and an execution against the corporation there returned unsatisfied, such judicial proceedings and their consequences will receive in our courts the full faith and credit due to them under the Federal Constitution. (Hancock National Bank v. Farnum, 176 U. S. 640; Converse v. Hamilton, 224 U. S. 243.)

The judgment should be affirmed, with costs.

Caedozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ., concur.

Judgment affirmed.