author: Rumsey, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. NATHAN O. GREENFIELD, Plaintiff in Error.

      Evidence— when a, witness, not am, expert, ma/y state that a spot consists of blood,— the depoi'tment of one while freshly accused of crime may be shown on his tnial— what statements a/re inadmissible as heresay — deelan'ations of a third, person that he is guilty of the offense an'e inadmissible — what declarations a/re inadmissible as pond ' of the res gestas — when the jwry may co-nsid&t' the refusal of the accused to testify before the coroner — what emroi's in a change ma/y be cured by subsequent instruction.

    The plaintiff in error, was indicted, tried and convicted of murder in the first degree for killing his wife. The wife was found dead in her bedroom, with the mark of a severe blow from a club upon her head, and with her throat cut; the walls of the room and articles therein were spattered with blood and a pool of it lay upon the floor under her bed. Upon the trial a witness called for the prosecution having testified that on the morning of the day of the murder he saw a spatter or spot of a darkish red color on a flat stone in the path leading from the prisoner’s house to the road, and having stated that he could swear, as a matter of fact, what the substance on the stone was, was asked to state what it was. The prisoner’s counsel having objected to this question on the ground that it was immaterial and irrelevant, and that the witness was not qualified to express an opinion whether it was blood or not, as he was not an expert, the court instructed the witness that his opinion was not asked for, and if he answered he would only be allowed to answer, as a fact, what the spot was. The witness then answered that the spot was blood..

      Held, that the witness was properly allowed to answer the question, as the evidence referred to a matter of common observation, as to which an ordinary witness could speak.

      Upon the trial evidence as to the conduct and bearing of the prisoner on the day of the murder, tending to show an indifference on his part as to the death of his wife, was offered by the People and received against the defendant’s objection and exception. ^

      Reld, that the evidence was properly^ received for the purpose of showing how the prisoner demeaned himself when the imputation of this crime was fresh upon him, and also to rebut the legal presumption that the affection existing between husband and wife will deter either one of them from wantonly doing an injury to the other.
    The counsel for the plaintiff in error offered in evidence two letters purporting to have been written by one Royal Kellogg, from Indiana, one to his brother Alden Kellogg, who resided at the place of the murder, and the other to the sheriff. In these letters he admitted that he committed the murder, and that the prisoner was innocent. Both of the Kelloggs were in court at the time, bvt neither of them was called as a witness by either party.

      Reid, that the court properly excluded the letters as hearsay or derivative testimony, and also on the general ground that upon a trial for murder, declarations or admissions of persons, other than the prisoner, that they had killed the deceased, are not competent evidence in his favor.
    One "Wyman, a witness for the defense, who lived in the house of one Taplin, about a mile and a-half from the prisoner’s house, testified that, at about four o’clock in the morning of the day of the murder, he was awakened by the barking of a dog, and on looking out of the window he saw the two Kelloggs and Taplin standing back of the house; that Alden Kellogg had a double-barreled gun and Taplin a bag with something in it; that one of the men washed his hands at .the pump; that they changed their coats; that the Kellogs went away with the gun and bag, and Taplin came into the house; that he heard a part but not all of the conversation. The counsel for the prisoner then offered to prove that on that occasion the witness heard Taplin say to Kellogg, “you were damned fools to do it,” and that one of the Kelloggs replied, “if we had not done it we should all have been hung.” No other evidence was given tending to show that Taplin was with the Kelloggs on that night, or to connect the Kelloggs or either of them with the murder, or to show that the parties, or the gun and bag, came from the prisoner’s house.

      Reid, that the court properly refused to allow the question to be put.
    One Snow, a witness for the People, testified that on the evening of the day of the inquest the prisoner, after having been arrested and told by the coroner that he might get counsel or answer', or decline to answer, as he chose, asked the witness what he should do, and that the witness told him “ if you are innocent you can answer all the questions they can ask you, if not you can decline, ” and that the prisoner said he would answer any questions they wanted to ask. The People then proved that the prisoner had declined to answer any questions before the coroner. The court, in charging the jury, stated that the fact that the prisoner refused to answer any question was not a circumstance which could be taken into consideration against him, as one indicating his probable guilt, unless it was accompanied by the statement made by Mr. Snow that if he was guilty he should decline, but if he was innocent he should go on. The counsel for the prisoner excepted to the latter portion of the charge.

      Held, no error; that as the evidence had been received without objection by the prisoner the jury might properly consider it as showing a part of his conduct while acting under the charge, and as tending to show a vacillation somewhat suspicious.
    That his answer to Snow might be considered as a consent to submit to an examination, and that he was thereafter subject to the same presumption as if his subsequent refusal to answer questions had occurred during an actual examination.
    After the charge, and before the jury had consulted on the case, the court called the jury back and in the presence of the prisoner and his counsel instructed them that as the evidence relating to the prisoner’s declining to answer, after the interview between him and Snow, was somewhat equivocal and they might be inclined to give it more weight than it should receive, they should not consider the fact of his declining to answer questions as evidence tending in any degree to establish his guilt in the case, but should wholly exclude all such ■ evidence, and what had been said about it in the charge, from their consideration, and give it no weight whatever in the case.

      Held, that the error, if any, in the charge was thereby cured.
    Writ of error to the Court of Oyer and Terminer to review the trial and conviction of tbe plaintiff in error of murder in tbe first degree.

      8. O. Huntington, for tbe plaintiff in error.
    Tbe court erred in admitting tbe evidence of Albert E. Stevens and George Pennock, as to blood stains. Stevens and Pennock were not experts as to blood stains, nor were tbey competent or qualified to testify, nor bad tbey sufficient knowledge of tbe facts to testify as to whether tbe stains upon said stone and upon said pump and platform were caused by blood or not. {Mayor v. Spies, 66 Barb., 576 ; Mrndc, v. The People,, 17 Hun, 410 ; Messner v. The People, 45 N. Y., 104; The People v Reetor, 19 Wend., 569; Wilson v. The People, 4 Park., 619 • Pirn Zandt v. Mutual Benefit life Insurcmee Oq., 55 N. Y., 169; Haggerty, by Guardian, v. The Brooklyn Gity and Newtown R. R. Go., 61 id., 624; Morehouse v. Mathews, 2 id., 514; Sloan v. N. T~. O. R. R. Go., 45 id., 125 ; 2 Best on Evidence [Wood’s ed.], §§ 511-517, and note a • Wbart. and Stille’s Medical Juris. [2d pt., 3d ed.], §§ 724-770, and notes; Taylor’s Medica? Juris., by Reese [7th Am. ed.], 291-300; Forensic Medicine, Guy and Eerrier, 321-334; Trial of Webster [Rev. ed., 1879], 131,132; Be Witt v. Ba/rley, 5 Seld., 371; 29 N. Y., 27; Nelson v. Sun

      Mutual Ins. Go., 71 id., 453-460; Lane v. Wilcox, 55 Barb., 615; Rust v. Holder, 41 N. Y., 488; "Wills on Circumstantial Ev., 174, 188, 189; Ya/ndervoort v. Gould, 36 N. Y., 644; Wbart. on Homicides [2d ed.], 683-686, and notes.) Tbe court erred in admitting evidence to show tbat the prisoner shed no tears on tbe day of bis wife’s death. (1 Wbart. & Stille’s Medical Juris., §§ 426-428; Bush on tbe Mind, 40, 346, 347; Doctor Cbeyne on Derangement in Connection with Religion, 107; Marshall’s Physiology, 419 ; Gibson v. American Life Ins. Go., 37 N. Y., 580 ; 1 Greenl. Ev. [13th ed.], §§ 12, 13, 52; Mental Physiology, by W. B. Carpenter [1874],- 324-330, §§ 365-369; Tbe Emotions, by James McCosb, Prest, of Princeton College, 89, 90, 94, 95; The Emotions and Will, by Alexander Bain, LL.D. [3d ed.], 26, 27, 31, 36, 41-45, 359-363.) Tbe court erred in excluding tbe letters by Royal Kellogg, and also in excluding tbe evidence of E. D. Wyman as to tbe conversations between A. & R. Kellogg and John Taplin. Tbe following authorities establish tbe competency of such conversation and letters; neither was irrelevant nor immaterial; each tended to qualify and explain tbe acts of tbe Kelloggs, and to give character to such acts: 1 Greenl. Ev., §§ 108, 109, 111, 114, 90, 100, 108, 124, 125,135, 138, 139, 147-155,156-160,169, 181, 251; Commonwealth v. McPike (3 Cush.,'181); Insurmice Go. v. Morley (8 Wall. [U. S.], 397); Jordons. Case(25 Grat. [Ya.], 943); Munchj v. The Slate (32 Ga., 672); Ilcvrt v. Powell (18 id., 635); Roach v. Lecurned (32 Me., 110); Dobbs v. Justice (17 Ga., 624); 1 Wbart. Ev., §§ 259-266; Mobile R. R. Go. v. Ashcraft (48 Ala., 15); 1 Whart. Ev., §§ 175, 258; 2 Best on Ev., § 495; Casey v. _ZY Y. Gent, cmd H. R. R. R. Co. (78 N. Y., 518); Brownell v. Pacific R. R. Go. (49 Mo., 239); Lambert v. The People (29 Mich., 71); Week v. Perry (36 Miss., 109); The People v. Roach (17 Cal., 297); Starkie on Ev. (10th. ed.), 78, 87-90; 1 Phillips’ Ev. (Cow. II. & Ed. notes, ed. 1859), 185-188, 202, 203; id. (ed. 1868), 152-164. A fatal error was committed by tbe court in charging tbe jury as to their right to consider tbe refusal of tbe prisoner to answer questions before tbe coroner. Tbe fact tbat Snow bad told him that if be was innocent he better answer, but if guilty be better not answer, does not, cannot and should not change tbe legal consequences of a refusal to answer. (1 R. S. [6th ed.], 31, and cases in note 1, 82 ; art. 1, § 6, and cases in note 1, 83 ; 3 R. S. [6th ed.], 1000, § 15, 1032; Ruloff v. The People, 45 N. Y., 213, 221; Crandall v. The People, 2 Lans., 309-313; Commonwealth v. Scott, 123 Mass., 239; 25 Am., 87; Commonwealth v. Nichols, 114 Mass., 285; 19 Am., 346; 110 Mass., 411; State v. Commonwealth, 65 Miss., 374; 27 Am., 291; The People v. McCoy, 45 How. Pi’., 216.) The judge had no legal right to recall and so charge the jury a second time. (Myer v. Clark, 45 N. Y., 285 ; O. Sullivan, v. Roberts, 7 J. & Sp., 360; Furst V. Second Avenue R. R. Co., 72 N. Y., 542; Erben v. Lorillamd, 19 id., 299; Green v. White, 37 id., 405 ; Duffamy v. Ferguson, 66 id., 482; Smith v. Isaacs, 58 id., 680; Baya/rd v. Daily, 68 id., 547; Brague v. Daily, 67 id., 495; Hydorn v. Cushman, 16 Hun, 107; Lambert v. The People, 6 Abb. [N. 0.], 181; The People v. Willy, 3 Hill, 194-214 ; Tracer v. Eighth Avenue R.. R. Co., 3 Keyes, 497 ; Allen v. James, 7 Daly, 13; Newman v. Godda/rd, 48 How. Pr., 363; Ferguson v. Lord, 67 N. Y., 495 ; Wright v. Eguitable life Ins. Co., 9 J. & Sp., 1; Commonwealth v. Scott, 123 Mass., 239; 25 Am., 87 ; Commonwealth v. Nichols, 114 Mass., 285 ; 19 Am., 346; Commonwealth v. Follow, 110 Mass., 411; State v. The Commonwealth, 65 Mo., 374; 27 Am., 291; Baird v. Gillett, 47 N. Y., 186; Williams v. Fitch, 18 id., 566 ; Osgood v. Manhattan Ins. Go., 3 Cow., 612 ; Worrall v. Pa/rmela, 1 Com., 519 ; Sta/rbi/rd v. Barrows, 43 N. Y., 200; Arthur v. Griswold et al., 55 id., 400, 408 ; Green v. Hudson R. R. R. Co., 32 Barb., 25, 34; Coleman v. The People, 58 N. Y., 561, 562; Scribbs v. Reilly, 35 Mich., 371; 24 Am., 575, 582, 583; 6 Hill, 292; Games v. Platt, 6 Robt., 270, 281; Tramer v. Eighth Avenue R. R. Co., 6 Abb. [N. S.], 46, 49; Ct. of App., 3 Keyes, 497; Watertown Bank and Loan Co. v. Mix, 51 N. Y., 558 ; Brown v. Swinford, 44 Wis., 282 ; 28 Am., 582.)

      William C. Ruger, for the defendants in error.
    The evidence of the witnesses Stephens and Pennock, as to the existence of bloodstains upon stones lying along the road leading from the house of the prisoner to that of his father, and upon the platform of Richard Greenfield’s pump, was competent, and the objections were properly overruled. {Com. v. Dorsey, 103 Mass., 412; Peo. v. Eastwood,
      14 N. Y., 562; Clapp v. Fullerton, 34 id., 190.) The evidence establishing the absence of physical .demonstrations of grief by the accused was also competent, and the exception was not well taken. {McCann v. People, 3 Parker’s Or., 273; Roscoe’s Or. Ev., 18*; Burrill on Circumstantial Ev., 502; McKee v. Nelson, 4 Cow., 355 ; Trelaumey v. Coleman, 2 Stark., 191; Culver v. Dwight, 6 Gray, 444.) The letters purporting to be in the handwriting of Royai Kellogg, and alleged to contain a confession that he murdered Alice Greenfield, were properly rejected. (2 Best on Ev., §§ 559, 560, 563, 565, 570; 1 "Wharton’s Am. Or. Law, § 684; Commonwealth v. ChdbbocTc, 1 Mass., 144; Smith v. State, 9 Ala., 990; Snow v. State, 54 id., 138 ; 58 id., 372; State v. May, 4 Dev. Law, 328; State v. Duncan, 6 Iredell Law, 236.) The declarations of Taplin and the Kelloggs, offered to be shown by the witness "Wyman, were properly rejected. {Carter v. Buchanan, 3 Ga., 813; "Wharton’s Or. Ev., § 262; Moore v. Meacham, 10 N. Y., 210; Bockwellv. Taylor, 41 Conn., 56.) The declarations must not be a narrative of the past, but the natural or inseparable concomitants of the principal fact in controversy, and therefore presumed to have been induced by the motive that led to the act in question. (1 Greenleaf on Ev., § 110; Meek v. Perry, 36 Miss., 190; Biggs v. State, 6 Cold., 517; People v. Davis, 56 N. Y., 95-102; Luby v. Hudson B. B. B. Co., 17 N. Y., 131; Ins. Co. v. Moseley, 8 Wall., 405; People v. Symoncls, 19 Oal., 275; Taylor on Ev., § 526; Lund v. Tyngsborough, 9 Cush., 36; Com. v. Harwood, 4 Gray, 41; Scraggs v. State, 8 Sm. & M., 722; Bockwell v. Taylor, 41 Conn., 56; State v. Haynes, 71 N. 0., 79 ; State v. White, 68 id., 158; Biggs v. State, 6 Cold., 517.) There is no virtue in the exception taken to the judge’s charge, with reference to the conversation with Hiram Snow. {Connors v. People, 50 N. Y., 230; Stover v. People, 56 id., 315; McGary v. People, 2 Lans., 232.) Even if there was error in the charge, it was cured by the subsequent instruction given to the jury directing them to disregard and exclude from consideration, while deliberating upon the case, the charge of the judge, as well as the evidence relating to the interview between the prisoner and Snow on the day of the inquest. {Lindsay v. People, 67 Barb., 549, affirmed in 63 N. Y.; People v. Parish, 4 Denio, 156; Smith v. Maxwell, 1 Stewart & Porter [Ala.], 221; Clay v. Miller, 3 T. B. Mon., 146; Imhoff v. Chicago, etc., R. R. Co., 20 "Wis., 347.)
   Rumsey, J.:

The prisoner was indicted in Oswego county for the murder of his wife Alice, in that county, on the morning of the 21st October, 1875. He was tried in that county in February, 1877, and convicted of murder in the first degree, which was reversed in the Court of Appeals for an error in empanneling the jury by the trial court. (74 N. Y., 227.) The place of trial was changed to Onondaga county, where he was tried in September and October, 1879, when he was again convicted and sentenced to be executed on 12th December, 1879. He was three times respited by the Governor, the last time to the 23d of April, 1880, and on the 20th of April the execution was stayed on the allowance of the writ of error by a justice of this court. The bill of exceptions does not purport to contain all the evidence given on the trial, but does set out a portion in detail, and the general tendency of other portions so far as is necessary to give to the court a clear understanding of the several exceptions taken at the trial, and the relation which those exceptions bear to the case. From this general statement it is evident the case presented an array of facts and circumstances proper for the jury, calling upon them for a patient consideration and careful analysis to determine the relation of the several facts with each other, and the aggregate weight of the whole. Such consideration, we have no doubt, the evidence received, but this court is not called upon to examine it, further than may be necessary to determine the validity of the exceptions taken as to the admission or rejection of testimony given or offered on the trial, and to the charge of the court upon the relation of the rules of law to such evidence. Four exceptions are insisted upon on the part of the prisoner, and they have been discussed by his counsel with such zeal and ability as the peril in which his client is placed demands. In order to understand the full scope of the first exception, it is necessary to refer to some of the facts in the case.

The prisoner and his wife were young; had been married about four years; their married life had been one of discord and was characterized on his part with much cruelty, at times manifested by personal violence. The prisoner lived a short distance back from the highway in front of his house, his father resided about twenty rods, and his uncle, ¥m. Grinned, about thirty rods distant from the prisoner’s housé. On the day before the murder he had been engaged threshing, some two miles from home, and did not intend to return that night, but hearing that his wife intended to leave him and a man named Hinds was to help her off, he went home and had an interview with her about twelve o’clock in the night, in which she said she intended to leave him and go to Michigan, where, after a year’s residence, she could obtain a divorce and marry another person. There was also evidence tending to show the prisoner asked her to release all claim to his property, which she refused to do, and that prisoner in repeating this interview the next morning said he had made up his mind if she was not to be his wife- she shouldn’t be anybody’s else. After this interview the prisoner went to his father’s house and went to bed, which was not usual for him to do. The indications were that while the deceased was sleeping she received a severe blow from a piece of edging off a board which left a plain indentation from the eyebrow to the hair, and the club broke from the force of the blow, and her throat was cut severing the artery, the jugular vein and the nerves. As there was no discoloration or swelling around the bruise on the forehead it is probable the wound on the throat was inflicted directly after the blow on the head. The blood from this wound had spurted on the wall near the bed; there was a considerable pool of blood on the floor iinder where the body lay, and when found it was still warm. The evidence tended to show that on the night of and immediately before the murder, the prisoner wore an army overcoat without a cape, much soiled and greasy, which could not afterwards be found. The prisoner swore that after going to bed at his father’s the night of the murder he saw a light at one of the windows of his house; that he dressed himself, went down stairs where he had left his boots, took them out doors and put them on to avoid disturbing his father and mother, who were asleep ; that he then went over, and, inside the yard in front of the house, saw through the window a man he took to be Hinds carrying the light; stood there a minute, went back to his father’s, called him up and then went to his uncle Grinnell and told him to get up that Hinds had come and he must come right down there; that he then went back to his father’s, and while doing so the light went out in his own house; all these went over to prisoner’s house and he pushed the door open a little; then went to the barn and found all right; went back and asked what they should do, and his uncle replied go in the house; that he went in, and as he was going into the bedroom for a lamp 'he struck his foot against the corpse of his wife and went back to get a match. Grinnell swears that when the prisoner in the house had walked about the time and distance necessary to cross the floor to within two or three feet of the bedroom door he said, “ Oh my God! I’ll bet she is dead; ” that there was no light there, and all the window curtains but one were down. The prisoner also swore that when he left his house and went to his father’s he left the lamp, of which they had but one, on the stand in his wife’s bedroom.

On the trial Alfred E. Stevens for the prosecution testified that about ten o’clock in the forenoon of the day of the murder he saw a spatter or spot on a flat stone in the path leading from the) prisoner’s house to the road, and about two rods from the house; that the stone was about three to five inches across; that there were a few drops or spatters from the size of a hay-seed to the size of a kernel of wheat; the color was a darkish red; that he was able to state what that substance on the stone was. He was then asked to state what it was, to which prisoner’s counsel objected for the reasons: 1st. It was irrelevant and immaterial. 2d. That the witness was not qualified to express an opinion whether it was blood or not as he was not an expert. The court held and instructed the witness that his opinion was not asked for, and if he answered he could be only allowed to answer as a fact what the substance was, that his opinion was not to be stated. The witness said he could swear as a matter of fact what it was, and was allowed to do so. To which the prisoner’s counsel excepted. The witness answered, the spots were blood. Similar evidence as to spots of blood found near the father’s house was allowed under similar circumstances, to which an exception was also taken by the prisoner’s counsel. The objection to this evidence is founded upon the assumption on the part of the prisoner’s counsel, that no one save an expert witness can state as a matter of fact whether the substance upon the stone was blood or not when there is nothing in the case to sustain such assumption. The witness was not ashed foi’ an opinion, but was in express terms informed that unless he could state as matter of fact what the substance was, he was not to answer, and upon his statement that he could tell as a fact what it was he was allowed to answer that it was blood. In view of this statement of the ease the admission of the evidence was correct, and it became a question for the jury to detezmine the credit to be given to it when, on a cross-examination of the witness or otherwise, the means of his knowledge should more fully appear'. To sustain an objection under such circumstances would exclude a large amount of evidence which has heretofore been admitted by the courts unquestioned.' Soap and salt and other's of the most common substances are composed of ingredients unknown to those in daily contact with the compounds, yet they know their names and are familiar with their use, while none bút a chemical expez't upon a careful analysis could say whether they were in truth the substances they are supposed to be. The deceased was found dead with a quantity of red substance upon the floor and spattered upon the wall near, and the witnesses testified, apparently without objection, that it was blood. It would have been a strange, not to say absurd, application of the rule in regard to expert testimony to apply it to the case of the blood thus found by the body, yet the objection may with equal propriety be made to that as to the substance fozznd upon the stone. This same qzzestion was fully and sensibly discussed by Judge Porter, in The People v. Gonzalez (35 N. Y. 49, at pages 60, 61 and 62), in which it was held that evidence precisely like this was properly admissible, and that matters of common observation may ordinarily be proved by those who witness them without resorting to mechanical or scientific tests to verify them. (See, also, Commonwealth v. Sturtivant, 117 Mass., 122, 132, and cases there cited; People v. Eastwood, 14 N. Y., 562.) If the question, instead of being whether the substance was blood, had been whether it was the blood of a human being or some other animal, the known difficulty of distinguishing between the two, without resorting to scientific or professional tests for that purpose, would, pezhaps, have been sufficient to sustain an objection to the evidence without proof of such difficulty, but as the case stood the evidence objected to referred to a common matter of which an ordinary witness could speak. The fact that the death occurred from means which induced a large flow of blood so that it spattered upon the wall of the room in which the body lay, in connection with the other facts that the prisoner’s knife was found the same morning with blood upon it not yet dried; that the lamp which the prisoner swore he left the night before on the stand in the bedroom of his wife was found with spots of blood upon it, and the army overcoat worn by the prisoner the night before the murder could not afterwards be found, rendered this evidence as to the blood on the stone in the yard and around the pump a few rods distant from the prisoner’s house material and proper to be submitted to the jury, and they alone were to judge of its weight.

At the trial evidence was offered on the part of the People of the conduct of the prisoner on the day of the homicide, tending to show an indifference on his part to the death of his wife. This evidence was-confined to the day of the homicide, and was given by witnesses who saw him in the presence of his wife’s remains, as well as by others who did not see him in such presence. Amongst others the following question was asked: “ Did you frequently see the prisoner on the day of his wife’s murder, the day of the coroner’s inquest upon her body ? ” To which the answer was, I did. The question was then put. “ Did you see the prisoner shed any tears that day ? ” The prisoner’s counsel objected to this as irrelevant, incompetent and improper, and as constituting no legal evidence of his guilt, which was overruled by the court and the prisoner’s counsel excepted, and the answer was, I did not see him shed any tears. One witness testified he did see the prisoner weeping on the day of the homicide. It is evident, from the bill of exceptions, this is but part of an extended examination as to the indifference manifested by the prisoner at the death of his wife. The acts of a party charged with crime, tending to show he had procured the means of committing an offense, or that he was in a situation where he might have done so, have always been competent as evidence, although such acts constitute no part of the criminal act. So, too, his threats previously made are proper evidence, not for the purpose of proving he had committed the crime, but to show he had the means of doing so, and that it had been the subject of his contemplation. “ In almost every criminal case a portion of the evidence laid before the jury consists of the conduct of the party either before or after being charged with the offense, presented not as part of the res gestae of the criminal act itself, but as indicative of a guilty mind ” (Roscoe’s Crim. Ev., 17), or as an uneasy deportment justifying the supposition of a guilty conscience, as it is expressed in "Wharton’s American Criminal Law (§ 861). Burrell, in his treatise on Circumstantial Evidence, devotes several sections of chapter one, part two, to the discussion of this class of evidence; and Judge Allen, in case of Lindsay v. The People (63 N. Y., 143), says: “The acts and declarations of a party are evidence against him, and whether they tend to fix a crime upon him is for the jury.” (Roscoe on Or. Ev., 18, before cited.) Under these authorities the evidence objected to was properly admitted, for the purpose of showing how he demeaned himself when the imputation of this crime was fresh upon him. This evidence was also properly admissible for another reason. The courts recognize certain presumptions of law based upon the relations of society, one of which is that the affection existing between husband and wife will deter either from wantonly working an injury to the other. This, like all other presumptions of law, may be overthrown by facts leading to a contrary presumption. (Will on Circumstantial Ev., 20.)

The facts that the prisoner had, before her death, treated his wife with much cruelty; that he stood apparently unaffected beside her murdered body, and that when the witness Alginer said to him, “ this is a pretty sad affair that occurred at your house last night, Orlando,” the only response he had to make to it, was, “ yes, sir; I had a load of oats stole,” all-indicate that if he ever had any affection for his wife, it had ceased to exist. The evidence was proper to repel the presumption of law referred to. (The People v. Hendrickson, 8 How. Pr., 412, 413; affirmed, 10 N. Y., 12; The People v. McCann, 3 Parker’s Cr., 272-294.)

At the trial the prisoner’s counsel produced a letter dated August 21, 1876, purporting to have been written from Lafayette, Ind., by Royal Kellogg to his brother Alden Kellogg. The body of the letter referred to family matters, and after the name is the following: “"Write soon; from your brother Royal Kellogg. "We will not think of the past, but of the hereafter. Tell me all about the murder. If you think it all right tell them I am in Lafayette, and if they want me they can come and get me,” etc. .The prisoner’s counsel also produced another letter with an envelope. The letter was as follows: “ Spare Greenfield i killed his wife after satisfying my inhuman lust on her senseless form since that time i have been in the wilds of Mich, yet I can’t doo a dubble murder i am a jirman & before you get this I shall be gon far away why clamer after his life he is inocent.” Upon the envelope was a postage stamp, the postmark was “ Grand .Rapids, Mich., May 9, 10 a. m.,” and the address was to the “ sharuf of Oswego Co., N. Y., put this thru in hast it will save a man.” Elizabeth Kellogg, a witness for the prisoner, testified she was sister-in-law to Royal Kellogg, had seen him write and was acquainted with his handwriting, and that the letter and envelope were in his handwriting. The letters and the envelope were severally offered in evidence on the part of the prisoner, were objected to by the counsel for the prosecution and excluded, and the prisoner’s counsel excepted to each ruling severally. Both the Kelloggs were in court during the time the evidence was given for the prosecution and defense, and neither party called either as a witness. It is difficult to discover any principle upon which this evidence was admissible. In a civil action brought to recover the price of a horse sold by one party to the other, the defendant would hardly think of offering the oral or written statement of a third person that he was the party who purchased the horse of plaintiff, and the defendant was in no manner a party to the transaction. Such an offer would not be entertained for a moment in any court, and would be rejected, not because the alleged statement was immaterial, but for the reason that the proof offered to establish it was entirely unreliable and in direct conflict with every recognized rule of evidence. The letters thus offered have none of the features which would make them competent evidence in favor of the prisoner, for they are not acts tending to establish the fact that Kellogg killed Mrs. Greenfield, nor are they res gestee or declarations cotemporaneous with an act and tending to give character to it. They come strictly within the rule that no hearsay or derivative testimony shall be received which has been well defined to be evidence which shows on its face that it only derives its force from some other which is withheld. • (1 Best’s Ev., §§ 89, 507.) Such evidence cannot be given to establish any specific fact which in its nature is susceptible of being proved by witnesses who can speak from their own knowledge. (1 Greenl. Ev., § 99.) The question with regard to this class of evidence is not whether it comes by word of mouth or by writing, but whether it is original in its nature or indicates any better source from which it derives its weight. (2 Best’s Ev., § 495.)

These letters derive all their force or effect as statements of an alleged fact from any credit which may be given to Royal Kellogg, from whom it is claimed they emanated, and he is the better source from which they derive all the weight there is in them, and it is an effort to make his mere written statement, proof of a fact which can be established only by his sworn evidence. But it is not necessary to resort to inferences from the rules of evidence to warrant the rejection of these letters, for it is supported by express authority. Declarations of third persons in reference to the offense with which the prisoner is charged are hearsay and inadmissible as evidence. (Whart. Crim. Law, § 662.) And on a trial for murder the admissions of other persons than the prisoner, that they killed the deceased are not competent evidence. (State v. Duncan, 6 Iredell, 326; Smith v. State, 9 Ala., 990; Commonwealth v. Chabbook, 1 Mass., 144.)

Wyman, a witness for the prisoner, swore that he lived one and a-half miles from the prisoner, and on the night of the murder staid at the house of his son-in-law John Taplin, about three-fourths of a mile from prisoner’s house, and slept up stairs; that about four o’clock in the morning he was awakened by the barking of a dog; looked out the window and saw three men who took out a bottle and drank from it, and stopped four or five minutes back of the house; that the men were Alden and Royal Kellogg and John Taplin, and Alden had a double-barreled gun and Taplin a bag with something in it; one of the men went to the pump and washed his hands; Taplin got a coat and put it on; took off his coat and went to the horse barn and got a coat; that Royal Kellogg put on the coat brought from the horse barn; that the Kelloggs went away taking the gun and the bag; Taplin went in the house, and witness saw no more of them that night; that while there he heard them talk, but did not hear all they said. The prisoner’s counsel then offered to prove that on that occasion he heard Taplin say to Kellogg, “ You were damned fools to do it,” and one of the Kellogg’s replied, “ If we had not done it we should all have been hung.” This was objected to on the part of the People. The objection was sustained and the prisoner’s counsel excepted. No other evidence was given tending to show that Taplin was with the Kelloggs that night, or tending to connect the Kelloggs or either of them with the murder. So much of the evidence of Wyman as was thus received on the trial tended to some extent to create a probability that the Kelloggs and Taplin were in some way connected with the murder, and was therefore admissible for that purpose. On the part of the People it was contradicted by the evidence of Mrs. Alden Kellogg that her husband and Eoyal Kellogg, who lived with them, left home after supper; were gone until between ten and eleven o’clock, when they returned, went to bed and remained there all night. Mrs. Hinds testified that the two Kelloggs came to her house between eight and nine o’clock that evening to see her husband, who was absent; that they remained there till he returned, between nine and ten, and they left there about ten o’clock. A number of witnesses gave evidence tending strongly to show that some two weeks before the murder, Taplin and his family went to his father’s, some twenty-seven miles from his residence, and did not return until the day after the murder, when he came home bringing with him a load of apples. The evidence of Wyman, and that offered in regard to the letter for the purpose of inducing the belief that Kellogg killed Mrs. Greenfield, is so entirely at variance with the statements of the prisoner at the time of the murder, and testified to by him afterwards, tending to fasten the crime on Hinds, as to excite the suspicion that both were devices to save the prisoner from the effect of the array of circumstances proved against him. This, however, was a matter for the consideration of the jury, and does not affect the question of the rejection of the declarations of Taplin and Kellogg on the night referred to. If the question and answer taken together are to be construed as an admission of the parties, directly or indirectly, that they had killed Mrs. Greenfield, then taken together they are but the narration of a past event, and become but the declai’ation of a third party that he, and not the prisoner, had committed the offense, and upon the authorities cited to the last exception were properly rejected. This principle does not exclude proof of res gestee, and if these declarations are included within that class of evidence it was error to reject them. Were they ras gestee ? “Res gestee are events speaking for themselves through the instructive words and acts of participants, and not the words and acts of the participants when narrating the events. (Wharton on Or. Ev., § 262.) They must be concomitant with the principal act, and so connected with it as to be regarded as the mere result and consequence of the coexisting motive. (1 Greenleaf s Ev., § 110.) They must accompany the act and so harmonize with it as to be obviously a part of the same transaction. (Moore v. Meacham, 10 N. Y., 207; Enos v. Tuttle, 3 Conn., 250.) From these and all the authorities, it is evident that declarations to malee them res gestee must be the reasonable and natural expression of the party, while doing the particular act which is the subject of the inquiry, which will tend to give character to the act itself or to show the motives or purposes of the party who does it; and the authorities are uniform that if such declarations are but a narrative of past évents they are inadmissible as res gestee. Not everything that is said while doing the act is admissible, but only such as give character and effect to it or show the motive or purpose with which it is done. (O’Kelly v. O’Kelly, 8 Metc., 436-440.)

The acts testified to by Wyman were a mere link in the chain of circumstances tending to charge the Kelloggs and Taplin with the offense, and of the class occurring after the act, which are always competent. Alone it was useless for any such purpose, and unless other proof was offered tending to connect the parties with the crime this was entirely ineffectual. There was nothing to show they came from the direction of prisoner’s house, or that the gun or bag came from there; and the declarations were not necessary, nor did they tend to illustrate or in any way give character to the acts Wyman had testified to. They related entirely to matters that had before transpired and not to what the parties were then doing, and were not, therefore, res gestee so far as such acts were in question, even if declarations made at the time those parties stood by Taplin’s house could be res gestee in the case.

The thing done, or res gestee, was the murder which occurred at another time and place than that at which these parties were; and it seems a clear proposition that anything said at such other time and place by the parties, indicating that they committed the murder, would necessarily be a naked statement of what they had done, not what they were in the act of doing, and would, therefore, be incompetent. In this respect the case is very like The People v. Davis (56 N. Y., 96).

There is another and insuperable objection to the admissibility of these declarations as res gestes to the principal act of killing. There is no evidence that these three men were present or had anything to do with the murder, or from which the jury could infer they had. It does not appear that the gun or bag they had was taken from the house of the prisoner; and the language of the declaration that “ if they had not done it they would all have been hung,” repelled the idea that they referred to the homicide, for if they had killed Mrs. G. they were in great danger of being hung, while if they had not they ran no such risk. The prisoner’s counsel, by his offer, assumes without evidence that they committed the crime and asks to prove by their implied admissions they had done so, and thus form the connection between their acts and their declarations. The evidence was properly rejected.

Hiram Snow, a witness for the People, testified that on the evening of the day of inquest, and after prisoner was arrested, he • was told by coroner he could get counsel, or answer or decline to answer as he chose. He asked the witness what he should do, who told him, Orlando, if you are innocent you can answer all the questions they can ask you; if not, you can decline.” He said he would answer any question they wanted to ask. The proceedings before the coroner were produced and the prisoner’s signature proved to a statement, subscribed by him, stating he declined to answer any question. Other witnesses were called who gave evidence tending to show the prisoner declined to answer questions. The court in charging the jury referred to this evidence and stated to them that the prisoner had the right to decline to answer, and the fact that he refused is not a circumstance which should be taken into consideration against him as one indicating his probable guilt, unless it is accompanied by the statement made by Mr. Snow that if he was guilty he should decline, but if he was innocent he should go on. The latter portion ©f the charge was excepted to, and prisoner’s counsel requested the court to charge that such refusal to answer could not be considered a circumstance against tbe prisoner, which was refused and prisoner’s counsel again excepted.

The evidence of Snow and of the subsequent refusal of the prisoner to answer the questions put to him was in the case without any objection on the part of the prisoner, and therefore properly in, and could be used for any purpose to which it was properly applicable. As part of his conduct while resting under the charge for the offense, it tended to show a vacillation somewhat suspicious. If, after being advised by the coroner that he could answer or not as he chose, and consulting Snow upon the subject, his reply that he would answer any questions they wanted to ash him is to be deemed a consent by him to submit to an examination, he was thereafter subject to the same presumption as if his subsequent refusal to answer questions had occurred during an actual examination. (Connors v. The People, 50 N. Y., 242; People v. Casey, 12 id., 393.)

The jury was instructed the prisoner has the right to decline to answer without any imputation of guilt from such refusal, and the court stated to them the only way in which any inference could be drawn from the whole evidence on that subject, without intimating whether any such inference ought to be drawn from it. ¥e think there was no error in this, but if there was it was fully cured by the subsequent action of the court. This is not a case where illegal evidence has been admitted under objection, and remained long enough to make a lodgment on the mind of the jury, and subsequently struck out by the court, as was Erben v. Lorillard (19 N. Y., 299). It was admitted without objection, and there could no error grow out of it except by the charge of the court in regard to it.

Directly after the charge the court and jury, as appears by the bill of exceptions, went to dinner, and as soon as it was over the court again convened, the prisoner and his counsel and the jury were sent for, and the jury was then instructed that as the evidence relating to the prisoner’s declining to answer after the interview between bim and Snow was somewhat equivocal, and they might be inclined to give it more weight than it should receive, they were in terms instructed they should not consider the fact of his declining to answer questions as evidence tending in any degree to establish Ms guilt in • the case, but they should wholly exclude all such evidence and what had been said about it in the charge from their consideration, and give it no weight whatever in the case. These instructions were given to the jury probably before they had consulted upon the case, and gave to the prisoner more than he had any right to ask, for it not only gave the charge his counsel asked for, but it withdrew from them the whole evidence upon that subject which had been admitted without objection.

This unconditional direction to the jury that the evidence was no indication of guilt, was sufficient to cure all error in the charge if any existed. The propriety of this course is recognized in Meyer v. Clark (45 N. Y., 285), and the only difficulty in that case was, the court did not unqualifiedly retract its erroneous charge. In Chapman v. The Erie Railway Co. (55 N. Y., 579) the court say : To obviate an erroneous instruction upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it.” In Thompson on Charging the Jury (§ 93), it is laid down as a rule “ that the court has power, at any time during the trial, to modify instructions already given or revoke them entirely if, upon reflection, it concludes they are erroneous,” and cites to sustain the doctrine Sittig v. Buhestach (38 Md., 158), Jones v. Van Patten (3 Ind., 107), Hall v. State (8 id., 439-444). All that seems to be necessary is, that the erroneous instructions should be expressly withdrawn from the jury. (Jones v. Talbot, 4 Mo., 279-285.) A like rule prevails in Massachusetts, Commonwealth v. Snelling (15 Pick., 333, 334).

After a careful examination of all the exceptions on the part of the prisoner, we are satisfied none of them are well taken.

The conviction is affirmed and the proceedings remitted to the Onondaga Oyer and Terminer, with instructions to appoint a day for the execution of the prisoner in pursuance of the sentence.

Talcott, P. J., and HardiN, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    ELLA A. DANA, as Administratrix, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — mastm• and servant — what persons ao'e considered as co-employes

    Tlie defendant, a railroad company, was accustomed, to the knowledge of its employes, to run upon its single track, extending from Syracuse to Rochester via Auburn, extra or wildcat trains, the movements of which and of the regular trains were regulated hy telegraphic dispatches. By the printed rules with which employes were furnished, its telegraph operators and engineers were directed to comply strictly with the orders received hy telegraph. The defendant’s superintendent having decided, on August twenty-second, to send an extra freight train to Cayuga, telegraphed to its operator at that station to have train No. 50, of which the plaintiff intestate was the engineer, held on its arrival at that station until further orders. The operator having received the message, and replied to defendant’s superintendent, found the intestate, and, hy mistake, told him to hold his train until the arrival of a regular train, known as No. 61, instead of telling him to hold it for orders. The intestate having left the station with his train after the arrival of No. 61, ran into the extra about a mile and a-half from the depot, and was killed.
    In an action to recover the damages occasiond by his death, the court charged the jury that the telegraph operator and the deceased were not co-employes. Held, that this was error.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    Dana, the plaintiff’s intestate, had been for many years an engineer on that part of defendant’s road from Syracuse to Rochester via Auburn, which is a single track. It is usual on that road to run extra or wildcat trains, and the movement of such trains, and also of the regular trains which may be on the road and affected by such wildcat train, are directed and controlled by telegraphic dispatches which are sent from the superintendent’s office at Rochester. Dana well knew of this method of moving trains on the road and had in his possession a printed copy of the regulations for running trains. Dana, with freight train No. 50, left Rochester for Syracuse on 22d August, 1878, on time, and reached Cayuga station at 4:30 p. m., which was five minutes ahead of schedule time. A regular freight train, No. 61, from Syracuse west to Rochester, was due at Cayuga at 4:35 p. m., and its leaving time was 4:50 p. m. Keiffer was telegraphic operator at Cayuga for defendant, and was competent for his position. Defendant on that day desired to run a wildcat train from Auburn west to Cayuga on the time of Dana’s train No. 50, and the superintendent at Rochester sent a dispatch to Kieffer at Cayuga, before No. 50 arrived there, directing him to hold “No. 50 for orders.” Keiffer answered the dispatch to Rochester showing he understood the order correctly, and thereupon the superintendent telegraphed from Rochester to Auburn for the wildcat train to run from Auburn to Cayuga regardless of No. 50 and it was accordingly started. Costello was station agent at Cayuga having charge of the sale of tickets there, and by the printed regulations of defendant was forbidden to be absent from his station without leave of the superintendent, but in disregard of such orders on the 22d August, ■ 1878, left Cayuga at 2 p. m. and was gone until 6 p. m. When he left he requested Keiffer to attend to his duties at the ticket office, and he went to the office at about 4:25 p. m. and sold tickets for a passenger train going west. When he left the ticket office he met Luce, conductor of train No. 50, and then told him to hold No. 50 for train No. 61, instead of telling him to hold No. 50 for orders. Keiffer intended to give Luce the directions to hold No. 50 for orders, but failed to do so. Luce waited until train No. 61 came to Cayuga from the east and then started for Auburn with train No. 50, and about a mile and a-half east of Cayuga collided with the wildcat train referred to and Dana was killed. The action of all the employes, except Keiffer, in directing the moving of the several trains was in strict accordance with the printed regulations for running trains, and the sole cause of the collision was Keiffer’s failure to obey the orders he received from the superintendent’s office to hold No. 50 for orders. The judge charged the jury, to determine whether the defendant was guilty of negligence in sending forward the train from Auburn without talcing additional precaution to detain No. 50 at Cayuga, or otherwise providing for its safety. That if so the negligence of defendant was made out; this charge was excepted to.
    The court was requested to charge that Keiffer being a competent man for the position, the defendant had the right to send on the train from Auburn to Cayuga in reliance on Keiffers performing the duty which he was directed to perform, that of detaining train No. 50. The court declined and the defendant excepted.
    The court was further requested to charge that the defendant was not responsible for the negligence of Keiffer in the delivery of the order, which he was directed to deliver or commnnieate to the engineer or conductor of train No. 50. The court refused and defendant excepted.
    The court was requested to charge that under the evidence in the case Keiffer was a co-employe of Dana, which was refused and defendant excepted.
    The court did charge upon this last request: “ I say to you that Keiffer, who is mentioned in the rules as agent or operator, was not a co-employe of Dana, the deceased, for the purpose of dispatching this train. The order of the superintendent to him was a direction to hold the train, and I say to you he was the mere hand or means adopted by the superintendent for that purpose.” To which charge the defendant excepted.
    The jury rendered a verdict in favor of the plaintiff.

      Edward Harris, for the appellant.

      Thomas Raimes, for the respondent.
   Rumsey, J.:

It is a familiar principle that, as between the defendant and strangers, the defendant is responsible for the negligent acts of its servants while in the discharge of the duties of their employment. This is elementary. (2 Kent’s Com., 259, 260.) It is now equally well settled that the master who has used proper care in the selection of his servants, is not liable to one servant for the negligence of another servant while engaged in the same common employment. (Sherman and Redfield on Negligence, sec. 86, and authorities there cited.) The reasons for this rule are well stated by Chief-Justice Shaw in Farwell v. Boston and W. R. R. Co. (4 Metc., 57), that the servant enters upon the performance of the duties he assumes with full knowledge of 'all the risks, and adjusts his compensation accordingly; that he is as lively to know those risks and as well able to guard against them as the master, and can quit the service when he is no longer willing to face the perils of the occupation. He further says, at page sixty, that the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself.”

While this rule is admitted fully in this State, much difficulty exists as to its application, and the books contain many cases upon that subject. In this case the learned judge before whom it was tried evidently did not think the doctrine had any application, for he held as matter of law that Dana, plaintiff’s intestate, was not a co-employe with Keiffer, the telegraph operator, whose negligence caused the injury. He instructs the jury that the first question for their consideration was whether “ the peremptory order given to the wildcat train to proceed from Auburn to Cayuga regardless of No. 50, without detaining No. 50 at Cayuga, or otherwise securing its safety, was a negligent act on the part of the defendant,” and if they do so find, the defendant’s negligence is made out. This charge is clearly correct if Dana and Kieffer were not co-employes, for in that case the defendant is directly responsible for the negligent act of Kieffer and all its consequences to Dana. As there was no question but that the negligent act of Kieffer was the cause of the collision and there was no question of contributory negligence on the part of Dana, the plaintiff, under the charge, was entitled to a verdict as a matter of course. The consideration of the question whether Dana and Kieffer were co-employes was taken entirely from the jury by the direct charge that they were not so, and the determination as to the correctness of this portion of the charge necessarily includes the several requests to charge in regard to that relation and the refusals of the court to do so, which were excepted to by defendant. The practice of running extra or wildcat trains over the Auburn branch of the defendant’s railroad was of long standing, was well understood by Dana and all its employes engaged in running trains. As such extra trains would necessarily interfere to some extent with the movement of regular trains over the road, the movements of all trains which may be affected by such extra trains are directed by telegraphic dispatches sent from the superintendent’s office at Rochester. To insure safety and guard against collision of trains tlie defendant adopted rules, of which each conductor and engineer of trains on the road was furnished with printed copies. Dana was in possession of a copy of those rules. These rules peremptorily required, amongst other directions to insure safety of the trains, that when an operator receives an order to hold a train, he must obey it strictly and conductors and engine men must respect such orders and comply with them in all cases. It is a very clear proposition that such compliance is absolutely necessary to insure the safety of persons and property upon trains subject to movements by such orders, and the failure of Keiffer to obey his positive instructions was the only cause of the collision which resulted in the death of Dana. Telegraph operators, at the several points upon the railroad where extra trains must pass, are as absolutely necessary to enable the defendant to run trains by telegraph as are conductors or engineers, and it is difficult to see why they are not co-employes with such conductors and engineers engaged in the same occupation of running trains by telegraph. Doth are the instruments of the controlling power of the corporation to accomplish a common purpose, the successful accomplishment of which depends upon the diligence and care of each in obedience to orders, which care should be in proportion to the dangers to be avoided. It is not necessary that both employes should be engaged in the same sort of services under a common employer. In Farwell v. Boston and W. R. R. Co. (4 Met., 49), before cited, it was held that a switch tender and the conductor of a passenger train were co-employes, and that the latter could not recover from the company for the negligence of the former. In Gillshannon v. Stony Brook R. R. Co. (10 Cush., 228), a common laborer, in repairing the track and who rode morning and evening several miles to the place he worked, on the gravel train of the defendant, was held to be a co-employe of the person in charge of the gravel train. The case of Russell v. The Hudson River R. R. Co. (17 N. Y., 134) is like the one in the 10 Cushing, before cited, in all respects; Besel v. N. Y. C. and H. R. R. R. Co. (70 N. Y., 171.)

The risk which resulted in the death of Dana, in view of these authorities, we think must be held to be one which entered into the contemplation of Dana when he entered upon his work, and the charge of tbe judge that he was not a co-employe with Keiffer was erroneous. If the evidence upon the point was at all doubtful, the question should, have been left to the jury to say whether they were co-employes or not.

The judgment and order should be reversed and a new trial ordered, costs to abide event.

Talcott, P. J., and Hardin, J., concurred.

Order and judgment reversed and new trial ordered, costs to abide event.


text:
    SUSAN R. GREENO and JOHN A. SUTHERLAND, as Executors, etc., Appellants, v. MARY E. GREENO and Others, Respondents.

      Mutual insurance society — right of the insured to dispose of the amount payable at his death by his will — when it will not pass under the residua/ry clause thereof— Duty of an executor as to selling 'non-perishable articles of personal property.

    The plaintiff’s testator was a member of the Conductors’ Life Insurance Company, the by-laws of which provided that, upon the death of any member, each of the survivors should pay the sum of one dollar, and that the premium so to be paid in case of the death of any member, “may be disposed of by his last will and testament, otherwise it shall belong to and be paid to his widow ; or in case he shall leave no widow, then to the heirs and legal representatives of the deceased ; and in the absence of such will, and in case such member leave no widow, heirs or legal representatives, such premium shall revert to the company.”

      Held, that the power reserved to the testator to dispose of the amount payable at his death was in the nature of a power of appointment, and must be exercised as such.
    That the said amount would not.pass as a part of his estate under the residuary clause of his will, but only in pursuance of a clause expressing in clear and, unmistakable terms the intention of the testator to divert it from the purposes to which by the by-laws of the company it was to be devoted.
    Executors and administrators are not required to sell non-perishable personal property unless the will so provides, or it be necessary to enable them to pay debts and legacies; and they should not, upon their final accounting, be charged with interest upon the value of articles so retained by them.

      Appeal from a decree of the surrogate of Erie county on the final settlement of plaintiffs’ accounts, as executors of Amos H. Greeno, deceased.
    ■ Amos H. Greeno died at his residence in the city of Buffalo, March 7, 1873, leaving the plaintiff Susan B., his widow, and three minor children, viz., Mary E., Sarah E. and John C., the children of a deceased wife, and Lemuel S., his only child by the said Susan B. By his will he bequeathed to his mother, Mehitabel Greeno, an annuity of $100 charged upon his real and personal estate. Subject to that charge he bequeathed all his “ personal estate according to the provisions of the statute for the distribution of the personal estate of intestates.” He devised one-third of his real estate to his wife, and the remaining two-tliirds to his children. He appointed his wife sole testamentary guardian of his children and executrix of his will, with Converse P. Greeno, his brother, and John A. Sutherland, his brother-in-law, as executors.
    The testator had been for many years before his death a railway conductor employed by the New York Central Bailroad Company. He left personal assets amounting to about $5,300, and land which was sold by the executors under a power in the will for $2,700. In March, 1877, the executrix and Sutherland, the executor, filed their petition for a final accounting, and from the decree of the surrogate entered thereon this appeal was taken.
    The principal subjects of controversy between the parties are the following: 1. At the time of the testator’s death the sum of $1,178.32 stood to the credit of “Amos H. and Susan B. Greeno ” in the Erie County Savings Bank. This account was opened in 1870. A bank book was delivered to the joint depositors, in which were entered to their joint credit or debit deposits and drafts from time to time. The last deposit in the testator’s lifetime was $1,100, January 29, 1873. This deposit was made by his express direction. The executors in their inventory of the estate, which was filed with the surrogate in April, 1873, returned this money as assets. The widow asserted her right to the money on her final accounting, but the legatees insisted that the money should be accounted for as assets, and so the auditor and the surrogate decided. *
    2. At the time of the testator’s death the sum of $500.27 stood to the credit of Susan B. Greeno in the Bochester Savings Bank. She held a bank book, and the account had continued in her own name from 1866 till her husband’s death, with no change. There was an entry on the book: “A. Ii. Greeno may draw, October 26, 1875.” The auditor reported as to this and the deposit in the Erie County Savings Bank: “ It has been proven that these deposits were made with the money of the husband, and there is not sufficient evidence that he intended to make a gift of them to the wife. I find that they were made in the name of himself and wife for the convenience of the testator, and not otherwise.” He therefore charged the executrix with this sum as assets, but the surrogate disapproved this finding and refused to charge the executrix with the Rochester deposit.
    3. In 1868 the testator received a certificate of membership of the “United States Railroad Conductors’ Life Insurance Company,” pursuant to which Susan R. Greeno, as his widow, received after his death from the association $3,115 as for a life insurance. This so-called company was a voluntary unincorjmrated association. Its funds were derived, according to the usual plan of similar associations, by the contribution of a fixed sum (one dollar) by each member upon the occurrence of a death, the money due in that event being payable as provided in the by-laws of the company.
    Under this by-law, and by virtue of the bequest of “ all the personal estate ” of the holder of the certificate, it was claimed by his legatees that the money paid by this association should be distributed as assets, and so the auditor and the surrogate decided.

      McMaster ds Norton, for the appellants.

      W. II. Gurney, for the respondents.
   Rumsey, J.:

The first and third exceptions of the appellants to the decree of the surrogate relate to the money on deposit in the Erie County Savings Bank, and are not well taken. Mrs. Greeno, the executrix, swears that in January, before her husband’s death, she went to Syracuse and obtained ten or eleven hundred dollars which belonged to him, took it home and gave it to him. This money was subsequently deposited by her in the bank, and the book of the Erie County Savings Bank shows a deposit of $1,100 on the 29th January, 1873, at which time the testator was sick, and he died on the seventh day of March following. There is no pretense on her part that her husband ever gave her this money; and while she insisted at the time the inventory was made upon her right to the funds on deposit in the Rochester Savings Bank, and what was expected from the Railroad Conductors’ Insurance Company, she makes no claim to this money but inserts it in the inventory as the property of the testator at the time of his death. There is no evidence in the case to show a gift of this money to her; and the mere fact that it was deposited by her in the names of herself and her husband is not sufficient, as against the other evidence in the case, to vest her with the title to it. The charge for the interest followed as a necessary consequence of her liability for the principal sum.

The appellants’ second and fourth exceptions to that part of the decree which charges Mrs. Greeno, as executrix, with the sum of $3,104.80 received by her from Conductors’ Life Insurance Company, and interest on the same, are more important in view both of the amounts and the principle involved. The precise character of this insurance company does not appear, or whether it had any compulsory means of compelling its members to pay the amounts necessary upon the death of either. The by-laws do provide for the payment by each surviving member of one dollar, upon receiving notice of the death of one of their number; and by the ninth by-law it is provided “ the premium to be paid in case of the death of any member of this company may be disposed of by his last will and testament, otherwise it shall belong to and be paid to his widow; or in case he shall leave no widow, then to the heirs and legal representatives of the deceased; and in the absence of such will, and in case such member leave no widow, heirs or legal representatives, such premium shall revert to the company.”

Whether the company has the power to compel the payments necessary to create the fund required, or must depend upon the voluntary action of its members for that purpose, does not change or affect the legal rights of the parties interested in it, if the money is in fact furnished and paid over. The ownership of it is then to be determined according to the established rules of law. Where a party effects an insurance upon his own life for the benefit of his wife or his child, and the amount is made payable to them in case of his death, and no power is reserved to the insured by any act of his own to change the policy or divert the disposition of the fund, he has no interest in it, and can do no act in relation to it which shall conflict with the interest of the beneficiary. The rights of such beneficiary under the policy become vested as soon as it is issued, and no persons except those to whom it is thus payable can assign, surrender or otherwise dispose of the policy, and the courts will protect such beneficiaries against all acts interfering with their riglits. (Ruppert v. Union Mutual Ins. Co., 7 Robt., 155; Fitch v. Am. Popular Ins. Co., 59 N. Y., 557; Thompson v. Am. Tontine Life and Savings Ins. Co., 46 id., 614; Fowler v. Butterly, 18 id., 68; Barry v. Brume, 11 id., 261.) It follows from these authorities that the insured in such a policy has no property or estate in the amount payable in case of his death; that it belongs to beneficiaries named in it and would not therefore pass under a will of all his estate, for he has none in it. If, however, by the terms of the policy any power of disposition over the money payable at his death is reserved to the insured such power is in the nature of an appointment, and must be executed as such. In the case under consideration the by-laws of the company stand in the place of a policy, as none was ever issued, and by them the power is reserved to the testator by his will to direct the disposition of the money to be paid at his death, and if he had executed this power in a proper manner he would have' effectually diverted the fund from the particular purpose to which it was appropriated by the arrangement under which it became payable. For reasons before stated it would not pass under the residuary clause as part of his estate, and any intention on the part of the testator to divert the fund from the very proper purpose for which it was primarily devoted should be expressed in clear and unmistakable terms. No such intention is expressed in the will which the testator has executed, and in the absence of such proper executioir of the power, the money was properly paid to Mrs. Greeno as widow of the testator, and 'as such she has the right to retain it. In an analogous case it was held in the Kentucky Court of Appeals that it was not in the power of the company, or of the member, or both, to alter the rights of those who by charter are declared to be beneficiaries, except in the mode and to the extent therein indicated. (Masonic Insurance Company v. Miller’s Admrs., 13 Bush, 489-494; Duval v. Goodson, in same court, reported in Alb. Law Jour. [Dec. 11, 1880], 479.)

Judge Barker, at Special Term in Genesee county, in Castle v. Cone, Executor, in an opinion, a copy of which it furnished to the court, took the same view of a similar contract of insurance.

The surrogate therefore erred in charging Mrs. Greeno, as executrix, with the money received by her as widow from the Conductors’ Insurance Company, and with interest on the same.

The articles mentioned in appellants’ fifth exception, at the prices affixed thereto, were properly charged to the executors, and the exception should be overruled. A portion of them were improperly set apart in the inventory without valuation to the widow and minor children, and the remaining portion belonged to the testator at the time of his death, came to the hands of the executors and were not mentioned in the inventory of his estate at all.

None of the respondents’ exceptions to the decree of the surrogate are well taken.

The money in the Rochester Savings Bank was deposited to the credit of an account opened in the name of the wife in 1866, and deposits were made to it in the same way, from time to time, and with the knowledge of testator down to near the time of his death. The preponderance of evidence sustains the ruling of the surrogate that both that money and the watch and chain belonged to the wife, as gifts to her from her husband before his death.

There is no principle upon which the executors can be charged with the interest upon the value of the piano mentioned in the inventory and which has remained in their hands since the death of the testator. Executors and administrators are not. required to sell personal property, not perishable, unless required to do so by the terms of a will, or it becomes necessary to enable them to pay debts or legacies. (2 R. S., 87, § 25.)

So much of the surrogate’s decree as charges plaintiffs with the moneys received from the Conductors’ Insurance Company and interest on the same reversed, and the balance of the decree affirmed. Proceedings remitted to surrogate of Erie county, with direction to modify his decree accordingly, without costs to either party of this appeal.

Taloott, P. J., and Hardin, J., concurred.

Ordered accordingly.


text:
    EMELINE S. HOBART, Executrix, etc., Respondent, v. GEORGE H. HOBART and others, Executors, etc., Respondents; DELOS A. BELLIS, Referee, Appellant.

      Appeal — when a referee may appeal from an order fating his compensation— Code of Owil Procedv/re, § 1247.
    Under section 1247 of tlie Code of Civil Procedure a referee, appointed to sell real estate in pursuance of a judgment, may appeal from an order fixing his fees and compensation for the services so rendered by him.
    Appeal from so much of an order made at Special Term, confirming the report of sale of a referee, as fixes and determines his fees and compensation.

      Hobart M. Chapman, for the appellant.

      Chas. R. King, for the respondents.
   Rumsey, J.:

From the papers presented in this case it appears that Delos A. Beilis, as referee appointed by the court, made a sale of divers pieces of real estate for the gross sum of $2,827.42. His report shows that of this amount he applied sixty-two dollars and thirty-nine cents for taxes, etc., as directed by the court, retained the sum of $196.69 for his disbursements, fees and charges, and paid the balance to the county treasurer of Yates county as directed by the court. When the report came to the Special Term it was confirmed except as to the referee’s fees and disbursements, and the referee by the order was allowed fifty-eight dollars for his disbursements and twenty-five dollars for his services, and he was directed to pay over to the county treasurer the sum of $113.69, being the. difference between the amount retained by him and that allowed by the court. From this order the referee appeals.

The respondent insists that the referee, not being a party to the-action, and not occupying such a relation to the action as to entitle him to be substituted under the provisions of section 1296 of the Code of Civil Procedure as a party, that he cannot prosecute this appeal.

The referee is an officer of the court appointed for the purpose of aiding the court to carry its judgments into effect, whose compensation is provided for by law, and such compensation may be taxed by the court in the absence of any provision of law directing it to be done in some other way. (Lynch v. Meyers, 3 Daly, 261.) I must assume that the question of settling the amount of those fees was properly before the' Special Term, and if that court erred in doing so the order affected a substantial right of the referee, and he would be at liberty to appeal under section 1294 of the Code of Civil Procedure. He has such a connection with the action as gives him this right, and section 1296 was intended to apply only to those who upon the record had no apparent connection with the case.

It is incumbent, however, upon the appellant to show from his papers affirmatively that an error was committed by the Special Term in fixing his compensation, and this he entirely fails to do. In his points he assumes that the action was for partition, and he was therefore entitled, under the provisions of chapter 569 of Laws of 1869, as amended by chapter 192 of Laws of 1874, to the same commissions as are allowed by law to executors and administrators. (Richards v. Richards, 76 N. Y., 186.) There is, however, no evidence in the printed papers furnished to the court from which it can infer that the action was one for the partition of lands, and in the absence of any such evidence the Special Term has allowed to the referee all he was entitled to.

The order must be affirmed with costs and disbursements.

Talcott, P. J., and Hardin, J., concurred.

The order appealed from affirmed with ten dollars costs and disbursements, to be paid by Beilis, the referee and appellant.


text:
    WILLIAM O. ROBERTS, Appellant, v. THOMAS MARSEN and JOHN MARSEN, as Administrators, etc., of EDWARD T. MARSEN, Deceased, Respondents.

      Abatement of action of replevin by death of sole defendant— what acts deban■ the plaintiff from applying for lea/oe to discontinue the action on account of such death.

    "When, alter the death of a sole defendant in an action of replevin, his administrator has, by an order entered upon the written stipulation of the parties, been substituted in his place, and the parties have thereafter voluntarily appeared before the court and proceeded with the trial, it is too late for jfche plaintiff to apply for leave to discontinue the action on the ground that it abated by the death of the defendant.

      Semble, that under the Revised Statutes and Code of Civil Procedure an action of replevin does not abate upon the death of a sole defendant.
    Appeal from a judgment in favor of the defendant entered upon an order of the County Court of Oneida county dismissing the complaint, and also from an order of the said court denying an application made by the plaintiff for leave to discontinue the action.
    This action was originally commenced against Edward T. Marsen, before a justice of the peace of Oneida county, on a claim for the delivery of personal property which was taken by the constable and delivered to the plaintiff. The defendant interposed an answer entitling him to a return of the property. On the trial before the justice the plaintiff obtained a judgment on the 18th day of December, 1877, from which the defendant appealed to the County Court of Oneida county. In February, 1878, the cause was tried in the County Court and the plaintiff had a verdict for the possession of the property on which judgment was entered, and Edward T. Mar-sen appealed to this court on case and exceptions from the order ol the County Court denying a new trial and from the judgment. On the 18th day of September, 1878, Edward T. Marsen died, and on the 7th day of October, 1878, William Marsen, administrator of his estate, was, by an order of this court entered upon a written stipu - lation of the attorneys for the parties, substituted as defendant. The case was submitted in this'court at the January term, 1879, and in April, 1879, the judgment and order of the County Court were reversed and a new trial ordered in that court, with costs to abide the event. Before the decision, and on the 2éth day of January, 18Y9, "William Marsen, the then defendant, died, and on the 5th day of February, 18Y9, John and Thomas Marsen were appointed administrators de boms non of Edward T. Marsen, deceased, and by an order entered in the County Court on the 1st day of July, 18Y9, on the stipulation of the attorneys of the parties, John and Thomas, as such administrators, were duly substituted as defendants in- the action. The cause was afterwards noticed for trial by. both parties in the County Court for the 23d day of September, 18Y9, at which time the parties proceeded to the trial, and at the close of plaintiff’s evidence a motion was made by defendants’ counsel for a nonsuit, when, by an arrangement of the counsel for both parties, the jury was discharged and an order was made that the question reserved in the case be heard before the judge at his chambers on five days’ notice, with leave to the plaintiff at same time to move to discontinue the action, on the ground that the same had abated by reason of the death of the original defendant, Edward T. Marsen. Both these questions were presented to the County Court and a nonsuit was granted in the action, and the motion to discontinue was denied, with ten dollars costs to be paid by plaintiff. Plaintiff was present and took part-in the last trial in the County Court, and appealed to this court from the order denying leave to discontinue the action, which appeal was dismissed at the June Term, 1880. Thereupon judgment was entered on the nonsuit, in the County Court, in favor of defendants, for the possession of the property, with damages and costs, and the plaintiff now appeals from such judgment and also from the order denying the motion to discontinue the action on the ground that the same abated on the death of Edward T. Marsen.

      R. O. Jones, for the appellant.

      8. J. Borrows, for the respondents.
   Rumsey, J.:

From the foregoing statement of the case, it is apparent that all the proceedings thus far had in the action, whether regular or irregular, have been had with the full assent, and practically on the motion of the plaintiff, who now, after being finally defeated in this long contested litigation, for the first time asks to have the action dismissed, because, as he insists, it abated by the death of Edward T. Marsen, the original defendant, in January, 1878. If the proceedings of the court in the action, subsequent to the death of Edward T. Marsen, are entirely without jurisdiction, they are void, and this appeal must be sustained, otherwise not.

The rule that personal actions die with the person, applies only to actions affecting the person of the parties, as assault and battery, slander, false inprisonment, while all actions affecting the estate of parties are expressly saved from abatement and are reserved to their representatives. (2 R. S., 447, §§ 1 and 2; Haight v. Hayt, 19 N. Y., 474.) The action does not abate in cmy event if the cause of action survive (Code Civ. Proc., § 755), which is but a reenactment of the 121st section of the old Code. This action clearly affects the estates of both the plaintiff and of defendants’ intestate, for under the proceedings in it the plaintiff has obtained possession from the defendants’ intestate, of the property described in the complaint, and the result of the action shows the defendants are entitled to have it returned to them as part of the estate to be administered by them. It was held in the case of Webbers’ Executors v. Underhill (19 Wend., 447), that at common law the action of replevin abated in case of the death of a sole defendant; and apparently without examining into the effect of the provision of ,the Revised Statutes above cited, the court held that the statute authorizing the writ of scire facias, by which only actions could .then be revived, extended only to cases before then known to the jaw, and therefore did not warrant a revival of that action by that means. Byrkle v. Luce (1 Comst., 163) is the case of the death of a sole plaintiff in replevin, and does not bear upon the case under 'consideration; but the proposition is also stated there that it coidd not be revived by sevre facias, and probably for the same reason 'given in the 19th Wend., 447. Both these cases were decided before either of the Codes was adopted; and in view of the provisions of section one of the Revised Statutes before cited, which saves to •the representatives of a party all actions for wrongs done to the property, rights and interests of such party, and of section two, excepting from section one only causes of action peculiar to the person alone, it would seem that the action of replevin is saved from abatement in case of the death of a sole defendant. If it was necessary for the determination of this appeal to decide the question, we should hesitate long before holding that the death of Edward T. Marsen caused.the abatement of the action.

The County Court had jurisdiction of the subject-matter of the action, and all the parties to the action were properly before it on the appeal from the Justice’s Court, and when all parties who are to be affected by its proceedings voluntarily submit their rights to its decision, as they did in this case by their stipulations written and filed with the court on two distinct occasions, neither should be allowed to question its action at this late stage of the proceedings except for substantial errors aside from the question of jurisdiction over the person of the defendant. The Court of Appeals practically hold in Cox v. New York Central and Hudson Rimer Railroad Company (63 N. Y., 414), that jurisdiction of the person in an action for injury to the person may by stipulation be conferred upon the court so as to save the action from abatement by the death of a party. (See, also, Arthur v. Griswold et al., 60 N. Y., 143.) It would be unfair to allow the plaintiff to avail himself of the objeetion he now makes unless compelled to do so by some unbending rule of law, and none such exists in this case.

The judgment and order appealed from must be affirmed, with costs.

Talcott, P. J., and Hardin, J., concur.

Judgment and order appealed from affirmed, with costs of appeal.


author: Eumsey, J.:

text:
    CATHARINE De FOREST, as Administratrix, etc., Plaintiff, v. HUGH J. JEWETT, as Receiver of the Erie Railway Company, Defendant.

      Master a/nd servant — the servant takes upon himself the risk of accident arising from a known and patent defect.

    Upon, the trial of this action, brought to recover damages for the death of the plaintiff’s intestate which was alleged to have been occasioned by the defendant’s negligence, it appeared that the deceased, an employe of the defendant, while engaged in coupling cars caught his foot in an open ditch or trench, and being unable to extricate it was run over and killed. The counsel for the defendant requested the court to charge that if this ditch had remained, while deceased was there, in the condition in which it was at the time of the accident, and in plain sight and he knew of its existence, he took the risks incident to its existence, and that the plaintiff could not recover.

      Held, that the court should have charged as requested, and erred in qualifying it by charging that that was so if he understood fully all the dangers that might under any circumstances result to him from the existence of the ditch.
    Motion for a new trial on excejitions ordered to be beard in tbe first instance at General Term, after a verdict rendered in favor of tbe plaintiff.
    Tbe action was brought to recover damages occasioned by the alleged negligent hilling of tbe plaintiff’s intestate by tbe defendant.
    Tbe injury of which tbe plaintiff complains occurred at tbe yard of tbe Erie Railway Company on Louisiana street, in the city of Buffalo. Tbe deceased was in tbe employment of tbe defendant and was engaged in coupling cars. One car bad been run off upon a track and left standing. When tbe next car was “ kicked ” off, it approached tbe standing car at tbe rate of from three to four miles an hour. In order to couple tbe two cars it was necessary that tbe coupler should step in between them while tbe moving car was advancing and couple tbe two at tbe instant of contact. This the deceased attempted to do. There was an open ditch under tbe track six or eight inches deep and about tbe same in width, tbe sides of which were perpendicular and made by two ties laid six or eight inches apart. It happened that tbe point at which the two cars came in, contact was directly over tbe ditch, "and as tbe intestate advanced with the moving car and stepped in between the two to put in the coupling pin his foot was caught in the ditch so that he could not extricate himself and he was run over and hilled. The ditch was constructed some years before the injury, for the purpose of draining the track. It was uncovered and plainly visible. There was a conflict of evidence as to whether it was practicable to construct a covered ditch at that point owing to the lowness of the surface of the ground; whether a covered ditch would have answered as well as an open one for the purpose of drainage, and whether, if covered with wood, it would not have been more unsafe than an open drain by reason of the liability of its covering to give way from decay or other causes and be broken'in.

      A. G. Rice, for the plaintiff.

      E. C. Sprague, for the defendant
   Eumsey, J.:

This case upon the facts remains as it was on the former trial, when the plaintiff had a judgment, which was reversed and a new trial ordered, as appears by the report of the case in 19 Hun, 509. The prominent facts stand out now, as they did on the former trial, that plaintiff’s intestate had for some two years been engaged for the defendant as an employe coupling cars, etc., upon the same yard; that the sluice across the track which it is alleged caused the injury, was well known to him, was open to his view, was passed by him day after day, and had remained entirely unchanged all that time. The. learned justice, before whom this cause was tried, as is evident from his remarks on refusing the motion for a nonsuit, thought the case of Plunk v. Central Railroad Company (60 N. Y., 607) had changed or materially modified the rule of law which had before then existed in regard to the risks which an employe assumed when he entered upon any particular service. Entertaining this opinion as to the principle of that case, as the General Term did not refer to it in the opinion, it was natural for the justice to think it had been overlooked, and that if the attention of the General Term had been called to it, its ruling would have been different. While, therefore, he held that the defendant was not guilty of negligence by reason of tbe manner in which tbe sluice was maintained under tbe track of the railroad, and tbe deceased was fully chargeable with knowledge of its existence and tbe place of its location, be deemed it necessary under tbe case of Plank to find some fact to submit to tbe jury, and be selected tbe only possible one left, which, in bis own estimation, was exceedingly narrow. We think it entirely too narrow, if found in favor of tbe plaintiff, to warrant a verdict for her.

We think the justice erred in bis view of the question decided in the Plank Case. No discussion was bad as to what the rule was between employer and employe, and the only question seems to have been whether the facts so clearly appeared in the case as to warrant the court in applying the rule of law to those facts without the intervention of a jury to settle them. the only thing the Court of Appeals passed upon was that the facts did not so clearly appear, and for that reason the case should have been submitted to the jury. Plank was brakeman on a freight train, stopped at Palatine Bridge and run on a side track in the night when the ground was covered with snow. He was there required to couple cars, and while doing so stepped or fell into a trench two feet wide and deep which run under the track. the court says, in so many words, “the evidence of defendant’s negligence was sufficient to require the submission of the question to the jury; also that the fact of the knowledge of the deceased of the existence of the trench was not sufficient to charge him, under the circumstances, with contributory negligence,” etc.

Thé rule that when a party enters into the employment of another be assumes the usual risks and perils of the service, and also the risks and perils incident to the use of the machinery and property of the employer as it then was, so far as such risks were apparent, is so well settled in our jurisprudence that no court would undertake to change or modify it in a mere memorandum decision, and the subsequent action of the Court of Appeals shows it bad no such intention in deciding the Plank Case. In several cases reported since the one in 60thNew York Reports, the court has distinctly recognized and approved of the rule as above stated, and that case has never been referred to as at all modifying or changing it. (Gibson v. Erie Railway Co., 63 N. Y., 449; Mehan v. Syracuse, B. and N. Y. R. R. Co., 73 id., 584; DeGraff v. Central R. R. Co., 76 id., 125.) As there was no contradictory evidence as to the knowledge of the deceased of the situation, location and condition of the sluice, during all the time he was at work upon that yard for the defendant we think he asstuned' all the perils incident thereto, and the justice erred in refusing the nonsuit when defendant asked for it.

After the motion for nonsuit was refused, the defendant’s counsel asked the court to charge that if this sluice had remained, while the deceased was there, in the condition in which it was at the time of the accident, and in plain sight, and that hé knew of its existence, he took the risks incident to its existence, and plaintiff cannot recover.

The court charged in substance that that was so if deceased understood fully all the dangers that might under any circumstances result to him from the existence of such sluice.

The defendant excepted to the refusal to charge as requested, and also to the charge as made. Both exceptions are well taken. The request, as made by the defendants, contains the true rule by which the case is to be governed according to all the authorities and should have been given to the jury without qualification.

The qualification embraces the narrow question the justice felt compelled to submit to the jury under the PlamJc Case, and is entirely too uncertain and speculative to warrant the jury in rendering a verdict upon it. This would require every ease involving the knowledge of a party to be submitted to the jury, and a verdict rendered under such a charge would be a mere guess based upon the probable intelligence and discretion of the employe. The law presumes when a man enters upon any employment he has sufficieut .intelligence to meet its requirements, and therefore holds him responsible for its possession.

The verdict must be set aside and a new trial ordered, costs to abide event.

Talcott, P. J., and Hardin, J., concurred.

New trial ordered, costs to abide the event.