author: GREEN, J. HARDIN, P. J. (concurring in result). FOLLETT, J. (dissenting).

text:
    People, Resp't, v. Frank Lytle, App'lt.
    Supreme Court, Appellate Division, Fourth Dept.,
    Filed June 17, 1896.)
    1. Statutes—Repeal.
    Where the amendatory statute omitted from a repealing schedule is designedly omitted, because it is not germane to the matters embraced in the revision and does not properly come within the classification, it is not abrogated merely because much of the original chapter of which it is a part is repealed.
    2. Save.
    It was not the desig-n of the revisers to repeal sections of the various laws revised which were reserved for incorporation into the Codes, except by a repealing act to be enacted by the adoption of the proposed amendments to the different sections of the Codes.
    3. Same.
    It was not the intention to repeal chapter 123 of 1883 by the schedule annexed to the County Law.

      4. District attorney—Special appointment.
    The power of the court to appoint a special district attorney, in case of the absence or disqualification of the district attorney or of the vacancy in such office, is untrammeled by any other conditions whatever.
    5. Statutes—Construction.
    The principle, that “and” and “or” are convertible as the sense and intent may require, applies to their use in statutes.
    Appeal from a judgment of conviction of burglary in the third degree, and from an order denying a motion to set aside the indictment and from an order denying a motion for a new trial.
    The indictment was signed by Daniel W. Forsyth, “Special District Attorney of the County of Monroe. Howard H.Widener, Assistant District Attorney;” and it was indorsed, viz.: “Monroe Oyer and Terminer. The People v. James Franklin and Frank Lytle. Indictment for Burglary Third Degree, Larceny and Receiving Stolen Goods. George D. Forsyth. District Attorney. A True Bill. Thompson G. Jones. Foreman. Filed the 18th day of March, 1895. Sent to the Sessions the 18th day of March, 1895:” In the sessions the defendant made an affidavit upon which the motion to dismiss the indictment was made. The affidavit contains the following language: “I further say, upon information and belief, that while the grand jury of said county which did find said indictment had the charge embraced in said indictment under consideration, and were receiving evidence concerning the same, one Daniel W. Forsyth was present in said grand jury room, in the hearing of said grand jury, and, as I am informed and believe, did examine witnesses in relation to said charge before said grand jury, and took part in the framing of said indictment, and signed the same as special district attorney of the county of Monroe, under an alleged appointment made by Hon. William H. Adams, justice of the supreme court. I further say that the said Daniel W. Forsyth is not the district attorney for Monroe county, nor is he either of’the assistants to the district attorney, nor even a clerk in the district attorney’s office; that he was not a member of the grand jury, was not a witness before the grand jury; and that his only right to be present in said grand jury room was derived under said alleged appointment as special district attorney, which appointment, I am infonned and believe, was illegal and void, in that the said Hon. William H. Adams had no authority to make such appointment, under the circurm stances hereinafter set forth.” The affidavit further states: “t further say, upon information and belief, that while said grand jury were in session, and while it had under consideration the charges embraced in said indictment, both the said assistant district attorneys of said county and said clerk, Fred C. Hanford, were in the city of Rochester, and were in and about the district attorney’s office during said time, attending to the duties and affairs of said office, and none of them were incapacitated for any reason from assuming the charge and management of the business pending before said grand jury, and to present to said grand jury the charges against me.” The affidavit does not state that any officer or other person was present with the grand jury “during the expression of their opinions or the giving of their votes upon any matter.” The other facts are correctly stated in the opinion prepared by Mr. Justice Follett.
    George M. Williams, for app’lt; George D. Forsyth, Dist. Atty., and Fred C. Hanford, for the People.
   GREEN, J.

March 18, 1895, when the charge against defendant wa’s being investigated by the grand jury, and when the indictment was found in Monroe county, the duly-qualified district attorney of that county was absent from the state. He had two assistant district attorneys and a managing clerk, duly and legally appointed, qualified, and acting as such, all of whom were in attendance at the term of oyer and terminer where the indictment was found, discharging their respective duties as such assistants and clerk. An application was duly made to the- court at that terra for the appointment of a special district attorney, by reason of the illness and consequent absence from the state of the duly-qualified district attorney. Thereupon an order was duly made by that court appointing an attorney and counselor at law, residing in and practicing his profession in the county of Monroe, as special district attorney during the absence of the district attorney. The defendant claims that this order of the court was unauthorized, and that the person so appointed had no power thereunder to perform the duties of the district attorney, and that his appearance before the grand jury during the investigation of the charges against this defendant was unauthorized, and that the defendant has not been lawfully indicted and that, therefore, the judgment and orders appealed from should be reversed.

Chapter 12 of part 1 of the Revised Statutes (volume 1, p. 364) treats “Of the Powers, Duties and Privileges of Counties and of Certain County Officers.” Article 7 of title 2 of that chapter is entitled “Of District Attorneys.” By section 90 (page 383) it is provided that:

“When any district attorney shall fail to attend any of the courts above specified, it shall be the duty of such court to appoint some proper person, being an attorney or counsellor at law, to transact the business -of the district attorney during the sitting of the court; -and the person so appointed shall be entitled to the same compensation for the services he shall perform that the district attorney would have been entitled to for the like services, and his account shall be audited and paid in the same manner.”

By chapter 470, laws 1847, entitled “An act to amend the act entitled ‘An act in relation to the judiciary,’ ” passed in the same year, it was provided., in section 33, as follows:

“When the office of district attorney of any county shall be vacant at the term of any court of oyer and terminer or court of .sessions of any county, or the district attorney shall for any cause he unable to attend the term of any such court, the members of the court, except the justice of the supreme court, may designate .some suitable person to act as district attorney at such term of the court; and the person so designated shall have and exercise the same powers and discharge the same duties as district attorneys elected in the manner provided by law, and shall be entitled to such compensation, to be paid out of the treasury of the county, as the board of supervisors shall allow.”

lío repealing clause is contained in this statute.

By chapter 123, Laws 1883, entitled “An act to amend section ninety of article seven, title two, chapter twelve, part one, of the Bevised Statutes, in relation to the appointment of special district attorneys in certain cases,” section 90 “is amended so as'to read as follows

“Whenever there is a vacancy, or the district attorney of any •county 'and his assistant, if he has one, shall not be in attendance at a term of any court of record, which he is by law required to attend, or shall be unable by sickness or by being disqualified from acting in a particular case, to discharge his duties at any such term, the court may, by an order entered in its minutes, appoint some attorney at law, residing in the county, to act as special district attorney during the absence, inability or disqualification •of the district attorney and his assistant; but such appointment shall not be made for a period beyond the adjournment of the term at which made. The special district attorney so appointed shall possess the powers and discharge the duties of the district attorney during the period for which he shall be appointed. The "board of supervisors of the county shall pay the necessary disbursements of, and a reasonable compensation for the services of, the person so" appointed and acting.”

Thereupon, by the same act, section 33 of the Laws of 1847, above quoted, was repealed; but its provisions, to an extent, substantially reenacted, with other provisions added, and the whole was incorporated into and made a part of the Bevised Statutes. 'Section 90, as originally enacted, was thereby abrogated, and the provisions of the act of 1883 were substituted in its place and stead, by express legislative enactment. Consequently, the act of 1883 was embodied into and became a constituent part of chapter 12 of part 1 of the Revised Statutes. At this time the greater part of the judiciary act of 1847 had been repealed. Properly, the amendment of 1883 should have been incorporated into the Code of Criminal Procedure". Upon the enactment of the “County Law” (chapter 686, Laws 1892), all of said chapter 12 was repealed, as appears by “Schedule of Laws Repealed;” but the act of 1883 is not mentioned in that schedule, nor does it elsewhere appear to have been expressly repealed.

Counsel for appellant contends that, since the act of 1883 was made a constituent part of said chapter 12, it became abrog-ated by the repeal of that chapter; that the repeal of the whole chapter carried with it all the amendatory statutes. On the other hand, it is argued that the act of 1883 stands as an independent enactment, and since the matter of it is in no way provided for in the county law, nor any provision made upon the subject, it does not fall with the repeal of the chapter into which it has been incorporated. In the consideration of the question presented, be it observed, the court must not only take cognizance of the statutes providing for the revision and consolidation of the general statutes-of the state, but may also examine into the various reports made-to the legislature by the commissioners to whom the undertaking was intrusted, for the purpose of ascertaining the method adopted in the work of consolidating, revising, rearranging, and repealing ■the various laws within the scope of their undertaking.

By chapter 289, Laws 1889, it is provided that the commissioners shall, in their report to- the legislature, “suggest such omissions, contradictions and other imperfections as may appear in the existing statutes so proposed to be revised and consolidated, with recommendations for the amendment thereof, and they shall provide for the specific repeal of the statutes which would be suspended or covered by the general statutes so proposed by said comImissi-omens.” 3 Rev. St. (9th Ed.), § 2757. Evidently, it was-.the intention of the legislature to impose upon the commissi on-ersthe duty of providing for the specific repeal of laws which were intended to be abrogated and superseded by the provisions of the revised or consolidated laws proposed to the legislature for enactment.

A careful examination of the “Schedule of Laws Repealed," "following the various general statutes revised and consolidated, shows that it has been the endeavor of the commissioners to obey .this injunction, and to fulfiil the duty imposed upon them by the-¡legislature, to the very letter; for it appears, from a thorough inspection and comparison of these schedules with the sections of the Revised Statutes as amended, that the purpose of the revisers ¡has been, not only to repeal the particular chapter or article of the Revised Statutes, but also to specify each and every statute that may have been passed amending any particular section or sections thereof. Of course, the omission to specify in the schedule a particular statute, whether. original or amendatory, might not save it from repeal, where the revision contáins provisions upon the same subject; but where the amendatory statute omitted from the schedule is designedly omitted, because it is not germane to the matters embraced in the revision, and does not properly come within the classification, it does not necessarily follow* that it is abrogated merely because much of the original chapter of which it is a part is repealed. The original chapter is expressly .repealed, because all, or most all, of its provisions, are embodied into the revision. The provisions of the law of 1883 have no relation to counties, or the powers apd duties of any county offi'cer, but peculiarly appertain to the functions of the courts. In. respect to an amendatory statute of that character, it was particularly incumbent upon the commissioners to provide for its specific repeal. There was no reason whatever why this statute should be repealed by a revised law relating to counties and county officers, and it is evident from the report of the commissioners made to the legislature that it was not intended to specify it in the schedule of laws repealed, but, on the contrary, it was reserved for repeal by laws of different character, and for that reason it was designedly omitted from this schedule. This will appear from an examination of the reports of the commissioners of statutory revision.

In the report of the commissioners of statutory revision for the year 1890, and transmitted to the legislature of 1891, they state that they present therewith drafts of amendments to the three Codes, “containing provisions in the statutes consolidated and repealed which belong more properly in such Codes than in the new chapters of the general laws;” that “following each new chapter reported, except the amendments to the Code, is an appendix containing the laws revised by such chapter, and proposed to be repealed by it, with cross references, so that any person with the report before him can compare each section of the revision with the corresponding provisions of existing laws.”

In their report for the year 1891, made to the legislature of 1892, the “County Law,” among many other general laws revised, was presented for adoption. In the report it is stated that “various amendments to the Codes were also reported, for the purpose of including therein all provisions in the general laws revised which relate to practice and proceedings in the. civil and criminal courts, and to nenal offenses.” In part 2 of the report, at page 1361, the commissioners propose “An act to amend the Code of Criminal Procedure.” “The portions and sections of the Code of Criminal Procedure corresponding to those hereinafter specified are amended to read, respectively, as follows, to take effect October 1, 1892.” Among the sections following is section 250: “General Duties of District Attorneys, Special District Attorneys and Their Assistants.” This section embodies said section 90 of the Revised Statutes as amended by the Laws of 1883, and also section 89, which is also enlarged and extended. A reference in a note to the proposed section (section 250) shows that it was designed to take the place of and supersede said sections 89 and 90. It will be observed that there is a change in the phraseology of the amendment of 1883. It reads

“When the district attorney or his assistant shall not be in attendance at any term of any court of record he is required to attend, or shall be unable or disqualified from acting, or there is a vacancy in such office, the court may, by an order entered in its minutes, appoint some attorney to act as special district attorney during such absence, inability, disqualification or vacancy.”

Following the proposed Code amendments (at pasee 1403) is a proposed “Act to repeal certain acts and parts of acts.” “The following acts and parts of acts are hereby repealed, to take effect-May 1st, 1892.” Here follows a “Schedule of Laws Repealed.”' Chapter 12 of part 1 of the Revised Statutes is not mentioned in. this schedule, but chapter 123 of the Laws of 1883 is specified, with a statement that it is to be found in the Code of Criminal Procedure, erroneously stated as 222.

Immediately following this repealing statute comes the county law, with the “Reviser’s Note” prefixed thereto (page 1409), in which they state that:

“The following draft of a county law is designed mainly to take the place of the following statutes: Chapter twelve, part 1, of the Revised Statutes, entitled ‘Of the Powers, Duties and Privileges of Counties and of Certain County Officers,’ and laws since passed, and relating thereto, as contained in the Revised Statutes, eighth edition, pages 1019-1081.”

They also state that:

“The classification of the laws outlined in the last annual report of the commission has been adhered to, and such provisions of these statutes as more properly belong to either of the Codes have been omitted from this chapter. * * * Many of the laws comprised in the Schedule of Laws to be repealed by this chapter will be found in the Appendix, at pages 1508 to 1653. There is also a reference under most of the sections of the revision to the .pages of the eighth edition of the Revised Statutes, and to the chapters of the Session Laws, where the present statutes will be. found, which are to be superseded by the revision.”

Turning to the proposed county law (sections 200-204), we find that-it was not intended to supersede sections 89-92 of the Revised Statutes by any new enactment; but in the annexed1 schedule of laws to be repealed is specified the whole of said chapter 12 pt. 1, of the Revised Statutes, though the amendatory act of 1883 (chapter 123) is not mentioned. Page 1512a of Report. Turn now to “Appendix P, Laws to be Repealed by the County Law.’’ Page 1508. At page 1574 will be found said sections-89, 91, 92, and section 90, as amended by the Laws-of 1883, copied verbatim from page 1066 of the eighth edition of the Revised Statutes. This would seem to indicate an intention to repeal, by the county law, section 90 as amended; but it is also indicated that its provisions were to be incorporated into the “Code of Civil (Criminal) Procedure.”

It was proposed that the county law should take effect May 1, 1892, but it was enacted to take effect May 12th. If the legislature had enacted the proposed Code amendments, the question here presented would not have arisen, but it failed to carry into-eff ect the intentions of the commissioners. It will be noticed that the proposed amendments to the Code of Criminal Procedure were intended by the commissioners to take effect October 1,1892, but the repealing act connected with it was to take effect long before that time, viz. May 1,1892. If this had been done, then section 90, as amended by the Laws of 1883, would have been abrogated for that period of time. But it is hardly possible that such a blunder would have been committed when it came to enacting these laws. We have said that it would seem to appear to have been the intention of the revisers, as indicated by the “Appendix ¡F, Laws to be ¡Repealed by the County Law” (page 1508), to repeal chapter 123, Laws 1883; but we are of the opinion that this supposed intention is overborne by the circumstance that this chapter was designedly omitted from the schedule, and was reserved for repeal by the repealing act connected with the acts to amend the Code of Criminal Procedure, as appears by the schedule following. It was not the design of the revisers to repeal sections of the various laws revised which were reserved for incorporation into the Codes, except by a repealing act to be enacted by the adoption of the proposed amendments to the different sections of the Codes. But they have clearly committed a blunder in not reserving sections 89 and 91 from the repeal of chapter 12. In view of the plan or scheme adopted and carried out for the revision, consolidation, and «classification of the statutes, and the method adopted for the specific repeal of the various statutes, in obedience to express legislative direction, we must hold that it evidently was not the intention to repeal Laws 1883, chap. 123, by the schedule annexed to the county law, but that it was reserved for repeal upon the enactment of the proposed section 250 of the Code of Criminal Procedure. The design of the schedule is to show what laws are superseded by the provisions of the revised law, and which consequently should be abrogated and repealed, but not to specify provisions of laws that are intended to be incorporated into the Code or other laws to be revised. By the Laws of 1817, the court was empowered to designate some suitable person to act as district attorney whenever there should occur a vancancy at the term of the court, or the district attorney should from any cause be unable to attend the term of the court. The construction contended for by the appellant’s counsel of tb& provisions of the amendatory act of 1883, if adopted as the true and only interpretation that may properly be given to the language employed, would he to deprive the court of this power as it was previously exercised, and make the exercise of the power-conditional upon the absence or disqualification of the assistant, or the existence of a vacancy in that office. We think this would be a very literal interpretation of certain of the words in which the statute is expressed, and ooxild only be adopted by disregarding-the true purpose and spirit of the statute and the fairly manifest intention of the legislature. When it is considered that the law directs the employment of an assistant to the district attorney, we must assume that there exists an actual necessity for his employment, and, consequently, that the presence of both is necessarily required for the adequate and proper discharge of the duties of the office. That being so, why should the absence or disqualification of both be required to the exercise of the -power of the court to fill up the complement of the office? Clearly, this act was not designed to limit, or in any manner restrict, the power as it had theretofore been exercised for the period of sixty years.

We are of the opinion that the power of the court to appoint a special district attorney in case of the absence or disqualification of the district attorney or of a vacancy in such office is untrammeled by any other conditions whatever. Keeping in view the prior statutes upon the subject and the nature, character, and purpose of the act of 1883, we think this is the true interpretation of the language employed, and effectuates the legislative intention. It will be noticed that the statute authorizes the designation of a person to act as a special district attorney, but does not in terms authorize a special assistant district attorney. Now, the district attorney being absent, why may not the court appoint a" special district attorney to act in his place and stead, as it had heretofore exercised such power? Because, it is argued, he has an assistant, and therefore the office of district attorney cannot be temporarily filled while the assistant is in attendance and ready, but perhaps not able, to discharge all the duties of the office at that term of the court. We do not think that wks the legislative intention. An assistant may be a young and inexperienced lawyer, and may be lacking the requisite ability to conduct successfully or properly the important prosecutions that may be presented. It would be strange that the court should not, under such circumstances, have the power to appoint an able and experienced lawyer to prosecute important cases, simply because there is an assistant, who may or may not be competent or able to perform all the duties incumbent upon the office of district attorney. Ae we said before, we cannot perceive any intention to be fairly and reasonably derived from the words of the statute to deprive the court of the power it formerly possessed and exercised, to appoint a special district attorney during the absence of the district attorney. By so doing, the court but effectuates the legislative intention that two or more -officers are requisite to properly perform the business of the office.

The cases are numerous where the courts have construed the word “and” as “or,” and vice versa, when the reason and spirit of the law required or justified it. “The popular use of ‘or’ and *and’ is so loose and so frequently inaccurate that it has infected statutory enactments. While they are not treated as interchangeable and should be followed when their accurate reading does not render the sense dubious, their strict meaning is more readily departed from than that of any other words, and one read in place of the other, in deference to the meaning of the context.” Suth. St. Const. 252 et seq. “And” is often used interchangeably with “or,” the meaning being determined by the context. The grammatical sense of words is not adhered to in the construction of either a deed or a will, where a contrary intent is apparent; and, to give effect to the intention of parties, the word “and” may be read “or.” Jackson v. Topping, 1 Wend. 388. This principle, that “and” and “or” are convertible as the sense and intent may require, applies to their use in statutes. Townsend v. Read, 10 C. B. (N. S.) 308; Boyles v. McMurphy, 55 Ill. 236; Eisfeld v. Kenworth, 50 Iowa, 389; Simpson v. Morris, 3 Yeates, 104; People v. Sweetser, 1 Dak. 308; 46 N. W. 452; Porter v. State, 58 Ala. 66; Granite Co. v. Devereux, 72 Me. 422. And this is the rule even in a criminal statute. State v. Myers, 10 Iowa, 448; Miller v. State, 3 Ohio St. 476; Streeter v. People, 69 Ill. 595. Observe, also, in the statute under consideration, that the personal pronouns “he” and “his” are used in the singular; indicating that provisions have reference to the absence or inability of one person only.

We are of the opinion that the court had full power and authority to make the appointment which it made, and that the person so designated was duly authorized to appear before the grand jury, and perform the duties which were performed by him.

We have examined the other objections made by defendant to the legality of the judgment and orders appealed from, but discover no error calling for their reversal. The evidence was sufficient to require a submission of the case to the jury, and the charge of the learned court explicitly confined the jury to the consideration of one count in the indictment; and these instructions were fully comprehended and followed by the jury, as appears from the verdict rendered. That verdict was fully justified by the evidence, and should not be disturbed. Code Cr. Proc., § 684.

The judgment and orders appealed from should be affirmed, and the judgment of the appellate court entered in the judgment roll, and a certified copy of the entry forthwith remitted to the clerk of Monroe county, pursuant to sections 547 and 548, Code Cr. Proc.

WARD, J., concurs in result.

HARDIN, P. J. (concurring in result).

Undoubtedly, it was assumed in the oyer and terminer, on the 4th day of March, 1895, that, by reason of the sickness and inability to attend and perform the duties required of the district attorney at that term of court, the court had authority to make the order appearing in the record, to wit: “Ordered that Daniel W. Forsyfh, Esq., an attorney at law residing in said county, be, and he hereby is, appointed special district attorney to act as such during this term.” Apparently, the court of sessions, when it denied the motion to dismiss the indictment, assumed that the act of 1883 was not repealed. However, for the reasons stated in the opinion of Follett, J., it is quite evident that the court of sessions was in error, notwithstanding that error, it was contended before us that the court of oyer and terminer had inherent power, in the absence of statutory authority, to appoint an attorney and counselor at law in good standing, residing in the county, as special district attorney, when it was made to appear that the district attorney was absent by reason of sickness; and attention was called to the cases of Dukes v. State, 11 Ind. 557; Com. v. McHale, 97 Penn. St. 397; State v. Harris, 12 Nev. 414; Shafer v. State, 18 Ind. 445. The statutes of the states in which the decisions referred to were made differ so essentially from the statutes of this state that the cases cited do not-furnish controlling authority upon the question of the inherent power of the court. It has also been suggested that the appointee was a de facto officer, and, in the absence of proof that his acts were improper, that no error can be predicated in respect thereto. See People v. Petrea, 30 Hun, 111, affirmed 92 N. Y. 128. In Carpenter v. People, 64 N. Y. 483, it appeared that the person who acted as commissioner of jurors had been appointed, and, under color of the appointment-, he assumed to, and did, exercise the functions of the office. Rapallo, J., says: “He was therefore a de facto officer, whose acts-were valid as to the public, so long as he continued to occupy and exercise the functions of the office.”

Prom an inspection of the record before us, we find that the defendant had a trial in the sessions, and that no error was committed in the progress of the-trial, and that the conviction is-in accordance with the evidence given tending to establish the guilt of the defendant.

Section 684 of the Code of Criminal Procedure provides as follows:

“Neither a departure from the form or mode prescribed by this Code, in respect to any pleadings or proceedings, nor any error or mistake therein-, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in respect to a substantial right.”

Inasmuch as there is no proof that the special appointee “was present with the grand jury during the expression of their opinions or the giving of their votes upon any matter,” in violation of section 264 of the Code of Criminal Procedure, and in view of section 684 of the Code of Criminal Procedure, already quoted, and of the provisions of section 542 of the Code of Criminal Procedure, providing that, “after hearing the appeal, the court must give judgment, without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties,” "it seems proper to sustain the conviction and judgment entered thereon, and to disregard the technical objection urged by the defendant.

In Cox v. People, 80 N. Y 500, it was held:

“Mere irregularities in the drawing of grand and petit jurors do not furnish a ground for reversing a conviction, unless it appears that they operated to the injury or prejudice of the prisoner.”

In the course of the opinion delivered in People v. Petrea, supra, Andrews, J., said:

“We are of opinion that no constitutional right of the defendant was invaded by holding him to answer to the indictment. The grand jury, although not selected in pursuance of a valid law, were selected under color of law and semblance of legal authority. The defendant, in fact, enjoyed all the protection which he would have had if the jurors had been selected and drawn pursuant to the general statutes. FTothing could well be more unsubstantial than the alleged right asserted by the defendant under the circumstances of the case. He was entitled to have an indictment found by a grand jury before being put upon his trial. . An indictment was found by a body drawn, summoned, and sworn as a grand jury, before a competent court, and composed of good and lawful men. This, we think, fulfilled the constitutional guaranty. The jury which found the indictment was a de facto jury, selected and organized under the forms of law. The defect in its constitution, owing to the invalidity of the law of 1881, affected no substantial right of the defendant. We confine our decision upon this point to the case presented by this record, and hold that an indictment found By a jury of good and lawful men selected and drawn as a grand jury under color of law, and recognized By the court and sworn as a grand jury, is a good indictment by a grand jury, within the sense of the constitution, although the l.aw under which the selection was made is void.”

In People v. Dimick, 107 N. Y. 15; 11 St. Rep. 739, it was held:

“It is the duty of an appellate court to give, in a criminal action, with reason and discretion, full force and effect to the provision of the said Code (section 542) declaring that, ‘after hearing the appeal, the court must give judgment, without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties,’ and the one which provides (section 684) that ‘neither a departure from the form or mode prescribed By this Code in respect to any pleadings or proceedings, nor any error or mistake therein, renders it invalid unless it has actually prejudiced the defendant.’ ”

In the course of the opinion delived in Dolan v. People, 64 N. Y. 485, it was said:

“It is not apparent how the alleged irregularities harmed the defendant, and it is certain that they had no relation whatever to the question of his guilt or innocence of the crime charged." Under such circumstances, the indictment should be upheld, unless the facts pleaded point out some vital error.”

That sentiment was approved in People v. Petrea, 30 Hun, 108, in the opinion delivered by Bockes, J.

Following the statutes and the authorities cited, and because it does not appear that the defendant was prejudiced by the irregularity complained of, and it is inferable, very clearly, that he was not prejudiced thereby, I am led to vote for affirmance of the conviction and judgment and orders.

FOLLETT, J. (dissenting).

March 18, 1895, the defendant, then fourteen years of age, was indicted, at a court of oyer and terminer held in and for the county of Monroe, for—First, burglary in the third degree (section 498, Pen. Code); second, grand larceny in the second degree (section 534, id.); third, receiving stolen property (section 550, id.). This indictment was sent to the court of sessions of Monroe county, there to be disposed of. March 30, 1895, a motion was made by the defendant to set aside the indictment, on the ground that Daniel W. Forsyth assumed to act as special district attorney for the county when the charge against the defendant was investigated by the grand jury, examined the witnesses, drafted the indictment, and signed it as special district attorney, which motion was denied. April 3, 1895, the defendant pleaded not guilty. On the same day he was tried .before the Monroe county sessions, and found guilty on the first count in the indictment,—of burglary in the third degree. Thereupon the defendant moved for a new trial, pursuant to section 465, Code Cr. Proc., which was denied. April 8, 1895, the defendant was sentenced to imprisonment in tkt State Industrial School at Rochester, N. Y. A judgment was entered, from which and the two orders the defendant has appealed.

Section 313 of the Code of Criminal Procedure provides:

“Sec. 313. The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of-the following cases: (]_)*** (2) When a person has been permitted to be present during the session of the grand, jury, while the charge embraced in the indictment was under consideration, except as provided in sections 262, 263, and 264.”

Sections 262, 263, and 264 provide that the district attorney may appear before the grand jury for the purpose of examining the witnesses, giving legal advice and information. Section 276 provides that indictments shall be signed by the district attorney.

Daniel W. Forsyth was present during the session of the grand jury while the charge embraced in the indictment was under consideration, and, unless he was legally appointed and acting as special district attorney, his presence was in violation of the statute, and the command of the Code is that in such case the indictment “must be set aside.” When this indictment was found, George D. Forsyth was the district attorney of Monroe county, duly elected as such at the general election held in 1892, and Howard H. Widener was the first, and Stephen J. Warren was the second, assistant district attorney of said county, duly appointed and acting as such, pursuant to section 203, chap. 18, Gen. Laws (The County Law), as amended by chapter 70 of the Law's of 1893 (1 Rev. St., 9th ed., p. 648). Both of the assistant district attorneys were present at the term at which the indictment was found, both of whom were qualified to act in this case; but the district attorney was unable to attend that court by reason of his sickness and absence from the state. Thereupon the oyer and terminer made and entered an order appointing Daniel W. Forsyth special district attornov during the term of the court. It appears by the record, and is undisputed, that he attended before the grand, jury upon the investigation of this case, examined, the witnesses, drafted the indictment, and signed his name thereto as special district attorney. Was there any statute in existence allowing the court to appoint a special district attorney in any case, and especially in case the assistant district attorneys were present and engaged in the discharge of their duties?

By section 90, tit. 2, chap. 12, p. 1, Rev. St., it was provided:

“Sec. 90. When any district attorney shall fail to attend any of the courts above specified, it shall be the duty of such court to appoint some proper person, being an attorney or counselor at law, to transact the business of the district attorney during the sitting of the court; and the person so appointed shall be entitled to the same compensation for the services he shall perform, that the district attorney would have been entitled to, for the like services, and his account shall be audited and paid in the same manner.”

This section was taken from section 1, chap. 254, Laws 1824 repealed by Laws 1828, 2d meeting, p. 57, chap. 21); and it remained the law until 1847, when section 33, chap. 470, Laws 1847, was passed, which provided:

“Sec. 33. When the office of district attorney of any county shall be vacant at the term of any court of oyer and terminer, or court of sessions of any county, or the district attorney shall from any cause be unable to attend the term of any such court, the members of the court, except the justice of the supreme court, may designate some suitable person to act as district attorney at such term of the court; and the person so designated shall have and exercise the same powers and discharge the same duties as district attorneys elected in the manner provided by law, and shall be entitled to such compensation, to be paid out of the treasury, as the board of supervisors shall allow.”

This statute was substituted for section 90 of the Revised Statutes, above quoted, to meet the provision of section 8 of article 6 of the constitution of 1847, which provided:

“They (judges of the court of appeals and justices of the supreme court) shall not exercise any power of appointment to public office.”

This constitutional provision was abrogated by the amendments to the constitution' ratified in 1869, since which time justices of the supreme court may and have exercised the power to appoint public officers when authorized by the legislature.

Prior to June 21, 1882, courts of oyer and terminer, except those in the city and county of New York, were held by a justice of the supreme court, and by county judges and justices of sessions; but, by section 1 of chapter 360 of the Laws of 1882, section 23 of the Code of Criminal Procedure, was amended, and provides that courts of oyer and terminer shall be held by a justice of the supreme court without an associate. County judges and justices of sessions being no longer members of courts of oyer and terminer, the power of a justice of the supreme court presiding at an oyer and terminer to appoint a special district attorney was doubted, and additional legislation was deemed necessary, the result of which was the passage of chapter 123 of the Laws of 1883, which provided:

“Section 1. Section ninety of article seven, title two, chapter twelve, part one of the Revised Statutes, is amended so as to read as follows: 'Sec. 90. Whenever there is any vacancy or the district attorney of any county and his assistant, if he has one, shall not be in attendance at a term of any court of record, which he is by law required to attend, or shall be unable by sickness, or by being disqualified from acting in a particular case, to discharge his duties at any such term, the court may, by an order entered in its minutes, appoint some attorney at law residing in the county, to act as Special district attorney during the absence, inability or disqualification of the district attorney and his assistant; but such appointment shall not be made for a period beyond the adjournment of the term at which made. The special district attorney so appointed shall possess the powers and discharge the duties of the district attorney during the period for which ho shall be appointed. The board of supervisors of the county shall pay the necessary disbursements of, and a reasonable compensation for the services of the person so appointed and acting.”

“Sec. 2. Section thirty-three of chapter four hundred and seyenty of the Laws of eighteen hundred and, forty-seven is hereby repealed.

“Sec. 3. This act shall take effect immediately.”

It will be observed that by this statute two things are accomplished: (1) Section 90 of the Revised Statutes, as passed in 1828, was abrogated, and a new section substituted in its stead, which became section 90 of chapter 12 of part 1 of the Revised Statutes of this state; (2) section 33 of chapter 470 of the Laws of 1847 was repealed.

By chapter 686 of the Laws of 1892 (chapter 18 of the General Laws, “The County Law;” 1 Rev. St., 9th Ed., 693, 660), the twelfth chapter of the first part of the Revised Statutes was repealed, but section 2 of chapter 123 of the Laws of 1883, being no part of the Revised Statutes, was not repealed; so that since the passage of the county law, in 1892, no statute has existed authorizing courts to 'appoint special district attorneys.

The argument that the commission of statutory revision and the legislature could not have intended to repeal a statute so important and necessary, without providing a substitute therefor, is entitled to no weight. It has been repealed in express terms, and that seems to me to be an end of the matter. Courts do not presume that the legislature is ignorant of the statutes relating to subjects upon which it undertakes to legislate. Cox v. Mayor, etc., 103 N. Y. 519, 524; 3 St. Rep. 672. Nor can they hold that a statute which has been expressly repealed is not repealed because it ought not to have been. This would be usurping a power which the courts have not and should not possess. So far as I know, it has never heen doubted or argued that the repeal of a chapter, title, or section of the Revised Statutes did not carry down with it all previous amendments of the chapter, title, or section repealed. Since 1828 it has been the practice of the legislature to repeal chapters, titles, and sections of the Revised Statutes by referring to the chapters, titles, and sections; and a decision that those repealing acts did not repeal all previous amendments to those statutes would throw the law of this state into inextricable confusion.

If it could be held that section 90 of chapter 12 of the Revised Statutes as amended in 1883, is still in force, I should be unable to hold that a court could appoint a special district attorney unless the district attorney of the county and his assistant, if he has one, .should not be in attendance at the term. Under section 90, of the Revised Statutes, above quoted, the district attorney of the county and his assistant, if he has one, must both be absent or disqualified, and in such a case “the court may * * * appoint some attorney at law * * * to act as special district attorney during the absence, inability or disqualification of the district attorney and his assistant.” The statute is not a disjunctive, but it is a conjunctive, one, and all the conditions must exist before an appointment can be made under it. The word “and,” in a statute, may be construed to mean “or,” for the purpose of carrying into effect the clear intent of the legislature; and for the same purpose “or” may be construed to mean “and,” but never for the purpose of thwarting the intention of the legislature, nor for giving a meaning to the statute not clearly intended. The plain intent of the legislature was to authorize the court to appoint a special district attorney in case there was no officer "present having authority to take charge of the criminal cases pending in the court, and so prevent a failure of justice. There was no such exigency at the oyer and terminer at which this indictment was found. Two assistant district attorneys were present, and were qualified to act in this case.

It is suggested that the oyer and terminer had inherent power to appoint a special district attorney, and Dukes v. State, 11 Ind. 557, is cited in support of the suggestion. The appointment considered in that case was made pursuant to section 5 of chapter 3 of the Revised Statutes of the State of Indiana (2 Rev. St. 1852, p. 386; 2 Rev. St. 1870, p. 430; 2 Rev. St. 1888, § 5865), which provides: “If any prosecuting or district attorney fail to attend any court of his circuit or district, as the case may be, the judge of such circuit or district shall appoint some one to prosecute for such term.” In the case cited, the district attorney was absent, and the court appointed an attorney for the term who had been retained to defend a person whose case was pending before the grand jury, and thereupon the court appointed another attorney to prosecute that case. The court having the power to appoint for the term ,it was held that it might appoint for a part of a term or for one case. In considering the case, the term “inherent power” was used, but the case was not decided on that ground, but upon the ground that power was given by the statute quoted. If it be assumed that the oyer and terminer had inherent power to appoint a special district attorney so as to prevent the failure of justice, there was, as before stated, no exigency requiring the exercise of such a power, as there were two assistant district attorneys present at the term, who were qualified to act.

It is also suggested, though I think the point is not much relied on, that Daniel W. Forsyth was a “de facto district attorney.” A de faci>o officer is one who, by virtue of an election or appointment claimed to be valid, enters upon and assumes to discharge the duties of a public office; but the term does not denote one who assumes to perform, for a brief period, some of the duties of an office. Daniel W. Forsyth did not claim to be the de jure or de facto district attorney, for that office was filled.

In the opinion of the learned presiding justice it is said, in effect, that assuming that there was no statutory or inherent power in the court to make this appointment, and that Daniel W. Forsyth had no authority to appear before the grand jury, examine the witnesses, draft and authenticate this indictment, no harm was done to the defendant, and the judgment of conviction should be sustained, under sections 542 and 648 of-the Code of Criminal Procedure, which are as follows:

“Sec. 542. After hearing the appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

“Sec. 684. Neither a departure from the form or mode prescribed by this Code, in respect to any pleadings or proceedings, nor any error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice in respect to a substantial right.”

These sections are not designed to cure errors affecting the jurisdiction of courts to try a defendant for a felony. Before a person can be legally tried for a felony under the constitution, a legal indictment must be found in the manner prescribed by the statute; and the section of the Code quoted at the beginning of the opinion provides that, in case an unauthorized person is present when the grand jury is investigating the charge embraced in the indictment, it must be set aside for this cause on the motion of the defendant, which, to my mind, makes it clear that it was not intended that sections 542 and 684 should cure this error.

The judgment should be reversed, and the defendant discharged.


source: Caselaw Access Project

author: PATTERSON, J.

license: Public Domain

text:
    Georgette Goldschmidt, Resp't, v. New York Steam Company, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    1. Nuisance—Jury trial.
    An equitable action to restrain the continuance of a nuisance is not an action for a nuisance, within section 968 of the Code.

      2. Same.
    In such case, the defendant is not, as of right, entitled to a trial by jury.
    Appeal from an order denying a motion to strike the cause from the special term calendar.

      James W. Hawes, for app’lt; Charles Steele, for resp’t.
   PATTERSON, J.

This action was placed upon the calendar of the special term of this court. The defendant moved to strike it from that calendar, that it might he remitted to the calendar for the trial of jury issues. The motion was denied, and, from the order entered thereupon, this appeal is taken.

The defendant is a corporation organized under and by virtue of the laws of the state of New York, and is engaged in the business of supplying steam to various customers in the city of New York, who use such steam for the purposes of heating, Cooking and motive power in dwelling houses or in other buildings in that city. In the conduct of its business, the defendant uses an extensive plant, apparatus, and appliances for generating such steam, and among the appliances thus used are boilers, furnaces, and chimneys.

The defendant’s works are located quite near a house in the city of New York owned by the plaintiff, and it is alleged in the complaint that the operations of the defendant are so negligently or improperly conducted and carried on as to constitute a nuisance near the premises of the plaintiff, greatly diminishing their value and the enjoyment thereof by the occupant, and that in the conduct of its business at the works, and with the apparatus and appliances referred to, the defendant causes and suffers large quantities of steam, ashes, coal dust, cinders, and soot to escape from its works, thereby corrupting and tainting the air, making it noxious and disagreeable and injurious to the health of the inhabitants of the neighborhood. The complaint also contains specific charges of the manner in which injury is occasioned both to the exterior and interior of the plaintiff’s premises, and to the household furniture and effects contained therein; and various other matters are stated in the complaint which, if true, establish that the defendant’s works are not only negligently conducted, but that, in their operation, they are, in and of themselves, a nuisance. The relief prayed for is that the defendant and its officers, etc., be forever enjoined and restrained from operating and conducting its said works, or using the premises upon which those works are, situated, in any manner so as to produce the effects complained of, and that the plaintiff recorder damages already sustained, in an amount claimed. The complaint also contains allegations that by reason of the continuing character of the wrong perpetrated by the defendant in the use of its wo-rlcs, or by the maintenance of the nuisance, an adequate remedy at law does not exist. Issue was joined upon this complaint, and the cause, being ripe for trial, was put on the special term calendar.

The defendant insists that it is, as of right, entitled fo a trial by jury, inasmuch as the action is for a unisance, and, being such, the Code of Civil Procedure provides that there must be a trial by jury. The section of the Code relied upon is as follows:

“Sec. 968. In each of the following actions, an issue of fact must he tried by a j ary, unless a jury trial is waived, or a reference is directed: Rirst, an action in which a complaint demands a judgment for a sum of money only; second, an action of ejectment; for dower; for waste; for a nuisance; or to recover a . chattel.”

The point to he determined on this motion is whether the action is for a nuisance. In the disposition made of it in the court below, the learned judge held it was not; and in this view of the •case we concur.

Section 1660 of the Code of Civil Procedure provides for actions for a nuisance in the following words: .

“An action for a unisance may be maintained in any case where such an action might have been maintained under the laws in force immediately before this act takes effect.”

What is referred to in this section, we think, is the common-law action of nuisance,—either an action on the case for damages, or an action to abate a nuisance. But this present action is not brought exclusively to accomplish either of those purposes. It is in analogy with, and we think is to he governed by what was held in, the case of Cogswell v. Railroad Co., 105 N. Y. 319; 7 St. Rep. 203. It is true that in that case the question arose upon an application made by the plaintiff for a trial by jury, on the ground that he was, as a matter of right, entitled to it, and that it was held that facts were shown which deprived him of that right, and that he had waived it; but the nature of an action such as the present, in which a plaintiff seeks the relief of a permanent injunction to restrain the continuance of a wrong, which wrong happens to consist in the maintenance of a nuisance, was considered by the court of appeals, and sections 968 and 1660 were construed by that court, and an authoritative statement of their meaning given. It was held that when brought in the form of this suit, and for similar relief to that now demanded, the action is not one for a nuisance, within the meaning of the Code. The court says in the case referred to:

“This is not, we think, an action for a nuisance, within section 968 of the Code of Civil Procedure. The action of nuisance is mentioned in the section together with other common-law actions, all of which must, the section declares, he tried by jury, unless a jury is waived or a reference is directed. Reading the section in connection with section 1660, it is clear, we think, that an equitable action to restrain the continuance of a nuisance (demanded) is not an action for nuisance, within section 968.”

It is sugggested that the case of Lefrois v. County of Monroe, 88 Hun, 109; 68 St. Rep. 535, explains and shows the inapplicability of the Cogswell Case to the facts set forth in the complaint in the case at bar; but the opinion of the court in the Lefrois Case, in commenting upon the Cogswell Case, deals only with the question of waiver. It does not overthrow the authority of that case classifying an action such as this is as an equitable action, to be tried in the only way equitable actions can be tried; that is, by the court, without a jury. The authority of the Cogswell Case justified the decision of the court below, and is controlling upon us; and the order appealed from should therefore be affirmed, with $10 costs and disbursements.

All concur.


author: BARRETT, J.

text:
    Henry Wagner, App'lt, v. Charles H. T. Collis, as Commissioner, etc., Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    Mandamus—Exempt firemen.
    Mandamus will not issue to restore an exempt fireman, who is a detailed laborer upon public works, to such position from which he was removed without cause shown or a hearing under chapter 577 of 1893.
    Appeal from an order denying a motion for a peremptory writ of mandamus.
    Louis J. Grant, for app’lt; Terence Farley, for resp’t.
   BARRETT, J.

It is not claimed that exempt firemen are entitled to preference in employment upon public works, as are honorably discharged soldiers and sailors. The claim is that, being in such employment, they gan only be removed for cause shown, after a hearing had under chapter 577 of the Laws of 1892. But this act relates only to persons holding positions by appointment, receiving a salary from the city. It has been held that a day-laborer does not come within this provision. Meyers v. City of New York, 69 Hun, 291; 23 N. Y. Supp. 484. In the case at bar the petitioner was not even a regular laborer. He was simply a detailed laborer. He was removed because his service as such detailed laborer was not required, and no one was appointed in his place.

The mandamus was properly refused, and the order appealed from should be affirmed, with costs.

All concur.


author: GREEN, J.

text:
    Wesley J. Penny, by Guardian, etc., Resp't, v. Rochester Railway Company, App'lt.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed June 17, 1896.)
    1. Negligence—Child—Question of fact.
    Where there is doubt as to a child being of the age and capacity that, in law, he should be held sui juris, it should be left to the juiy to say whether he is so or not.
    2. Same.
    In deciding the question as to whether parents are guilty of contributory negligence in allowing k child non sui juris to be on the street unattended, the jury may consider the age of the child, his want of maturity, of judgment aud memory, inexperience, timidity, inability to care for himself, habits and training, all presumably within the knowledge of his parents, and also his conduct and acts at the time of the accident.
    8. Same—Degree on care.
    In the ease of an infant of tender years, less discretion is required than in an adult, and the degree depends upon his age and knowledge.
    4.' Same—Street railroads.
    It is the duty of a street railway company to have its car under control as it approaches and crosses a street, and, if not actually slowed down, the motorman should have the means at his command to stop the car immediately upon the appearance of danger.
    6, Same.
    The degree of care, in the management of its cars, exacted of a street railway company using electricity as a motive power and traversing the streets of a populous city, where danger to pedestrians is to be constantly guarded against, is not less than that required of the company to its passengers.
    6. Same—Evidence—Opinion.
    In an action for personal injuries, the question of the rate of speed of cars is not a question necessarily for experts. It may be shown by a person of ordinary experience.
    i7. Witness—Impeaching.
    It is discretionary with the trial court whether inquiries tending to disgrace a witness shall be excluded or admitted, unless the evidence would hear directly upon the issue.
    8. Same—Evidence.
    In an action for personal injuries, a question calling for what was probable and likely to occur from the injury is proper.
    9. Appeal—Reversal.
    The appellate court will not reverse upon a correct ruling because founded upon a wrong reason, unless possibly in a case where ihe grounds given for the ruling can be seen to have misled a party to his injury.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on tbe minutes.
    On September 12,1894, tbe appellant was operating an electric street railroad with double tracks on Grape street, in Rochester.
    Tbe respondent was then an infant of seven years and two months, and resided with bis parents on Orange street, 550 feet east of Grape street. He had lived there for several years before the accident. On the afternoon of the above-named day, plaintiff, with other boys, had been playing on the walk in front of the house and lot of Mr. Greenwood on the northwest corner of Orange and Grape streets. About half past six Mrs. Greenwood told him it was time to go home, and he started for home on the north cross walk over Grape street. As he reached the west track of the railroad, and just as he stepped over the first rail, he was startled to hear- some one call to him to “get out of the way,” and the gong of a car sounded. He glanced towards his left, and saw a car coming from the north, almost upon him. He jumped to the right, and was struck by the guard of the car, thrown thereon, and carried three-fourths of the way across the street, when he was jolted off. His right leg was crushed, and, later, amputated at the knee. The double tracks of appellant branched from a single track about 278 feet northerly from the north cross walk of Orange street. The whole width of Grape street at the north -cross walk of Orange street was visible from the center of the west track 225 feet north of the walk. When the car reached the north cross walk it was running from eight to twelve miles an hour. A city ordinance limited the rate of speed to seven miles per hour. The car ran nearly to the south cross walk,—over fifty feet,—after the motorman called to plaintiff, before it was stopped. The car was equipped with a sand box, and the evidence tended to show that if it had been provided with sand, and used by the motorman, the accident could have been avoided.
    Charles J. Bissell, for app’lt; Henry M. Hill, for resp’t.
   GREEN, J.

It was conceded on the argument that there was -evidence of defendant’s negligence sufficient to require the submission of that question to the jury. The defendant insisted on the trial, and now contends, that the evidence disclosed such knowledge and appreciation upon the part of plaintiff of the danger of crossing defendant’s tracks as rendered him sui juris, and convicted him of contributory negligence as mater of law. The trial court held that the question of whether this child was sui juris or non sui juris was a question of fact for the jury to determine, and that, if they found he was non sui juris, then they must determine whether the parents were negligent in allowing him to be upon the streets unattended; and, further, that if the jury found the plaintiff sui juris, they should pass upon the question of plaintiff’s contributory negligence; and so instructed the jury. Plaintiff had attended school for a year before the accident, and in going to and from school crossed over these tracks at the junction of Grape and Orange streets. He had been told by his mother of the danger at this crossing. He had been careful, and usually looked both ways before crossing. At times, when with his mother, he would look to the right and left, and if he saw a car

a long distance away would take hold of her dress and detain her. Told by his mother of the danger, like a timid child, he was afraid, and for a time remembered, and yet, like a child, too, he forgot the admonition on the day of the accident, upon being told by Mrs. Greenwood, at whose house he was playing, “to run home, because it was getting dark.” Thus suddenly brought to the consciousness that darkness was coming on, and that he must “run home,” he obeyed, and started on a trot across the street. A little companion preceded him. The crossing, free from obstruction, was before Mm. With the one idea of reaching home before darkness came on, seeing the boy ahead of him crossing in safety, forgetful, thoughtless as a child, he passes on to the track, hears a gong, and the quick sharp command, “Get out of the way!” and. the car is upon him, and he receives the injury. This evidence, appellant claims, was sufficient to authorize the court in holding as a matter of law that this infant was sui juris. It appears tods that it shows the direct opposite. Here was the heedlessness, the lack of care, of judgment, of deliberation, and of discretion which are the invariable characteristics of those of tender years. He had been told of the danger at the crossing. There was now-presented to him another danger,—the darkness; and he was-away from home and mother. All other danger was forgotten, and with the timidity of a child he became intent on the one idea of getting home before he was overtaken by the present danger. Is not this view, under the circumstance, more consistent than that he was capable of considering, or, in that moment of time, of exercising, sufficient judgment to guard against the danger of attempting to cross a public street upon a walk prepared for pedestrians, and which was clear, open, and free from any obstruction?' Mrs. Greenwood, a neighbor, says he was a very timid and quiet child, and that “when he had been plagued by the boys, I had him taken home to my house. He never would fight for himself.” He had not learned to care for himself, and, with the helplessness of cMldhood, trusted to others. TMs act on his part was itself evidence tending to show he was so lacking in judgment and experience as to be irresponsible for negligence on his part. Scrutinizing this evidence, considering the conduct of this child under all the circumstances surrounding him at the time of the accident, we can readily understand' that the tendency of the law- in the-case of a child of his age is to consider him non sui juris. Certainly, upon the evidence presented, different minds might honestly and conscientiously disagree upon that question. If there is any doubt as to the child being of the age and capacity that, in law, he should be held sui juris, it certainly should, be left to-the jury to say whether he is so or not. Mangam v. Railroad Co., 38 N. Y. 455, etc.; Ihl v. Railroad Co., 47 id. 317. The appellant relies upon Wendell v. Railroad Co., 91 N. Y. 420, as supporting Ms contention. It was assumed in that case both on the trial and on appeal that the child whose conduct was in question. was sui juris. ¡Neither was it decided in that case that all children of the age of seven years are sui juris. We are of the opinion that the learned trial justice committed no error in submitting that question to the jury. If the jury found that the plaintiff was non sui juris, then they would have to decide the question of whether the parents were guilty of contributory negligence in allowing him to be upon the street unattended. Upon that question the jury had before them the age of the child, his want of maturity, of judgment and memory, his inexperience, his timidity, his inability to care for himself, his habits and training, all presumably within the knowledge of the parents; and also his conduct and acts at the time of the accident; and from this they were to decide whether the parents, in allowing this child to be upon the streets unattended, acted as ordinarily careful and prudent parents would, under like circumstances. If the jury decided that plaintiff was sui juris, then it became necessary to decide whether he had acted with that degree of prudence which might reasonably be expected under such circumstances in a child of his years. They would have been called upon to say whether it was negligence for a child of seven year’s and two months of age to run across a street railroad track when he might cross in safety if the approaching car is operated at the rate of speed provided by the city ordinance. It would be a fair question, too, for their decision whether this child, from the lack of appreciation of danger, or from want of maturity and judgment, did not miscalculate in deciding to cross, as his companion did just before him, or in relying upon the crossing being clear as when he started, for the-short space of time necessary to reach the opposite side of the street, or in relying upon the railroad company operating its cars over that crossing within the limit prescribed by the ordinance. All of this, and more, did the jury have before them upon this question. The degree of care and discretion used must be determined in each case by the circumstances of that case. The measure of the degree of care and prudence the omission of which would constitute negligence must be graduated by the age and capacity of the individual in each ease. In the case of an infant of tender years less discretion is required than in an adult, and the degree depends upon his age and knowledge. The trial court very properly decide to submit that question also to the jury.

Upon the trial exceptions were taken by defendant to the charge of the court and to its refusal to charge as requested. Of these, two only need be considered, as the others are directed to the subjects already discussed and decided, and the conclusion already reached upon that branch of the case governs the disposition that should be made of those two exceptions. Plaintiff’s counsel asked the court to charge the jury:

“That if the jury shall find that by the use of sand at the time this accident happened the car might have been stopped in a shorter space than it was, it is a question for them to say whether-it was not negligence on the part of the defendant that there was no sand there to use.”

By the Court: “I think I have instructed the jury that that, is one of the questions in this case that they are to consider in determining this evidence.”

Defendant’s counsel excepted to the instruction, and requested the court to charge:

“That under the evidence in the case the omission on the part of defendant to provide sand in the box upon the car at the season of the year when this accident occurred is not any evidence of negligence upon the defendant’s part.”

By the Court: “I decline to charge that, and state, as I have already stated, that it is a question for the jury.”

Defendant’s counsel excepted.

The plaintiff gave evidence tending to show that the rails were dry and dusty at the time of the accident, and claimed that under those conditions the car could have been stopped in much less space and time than it was, as it appeared from the evidence that with a dry rail the car'could be stopped almost instantly. The defendant, to meet this, gave evidence tending to show that the street had been sprinkled shortly before the accident, and that the rails were “greasy” with thin mud. One of the defendant’s motormen testified:

“On a greasy rail, with the reverse, it locks the wheels, and they slide along until they strike something gritty. On a greasy rail I have known the wheels to be revolving the other way, and the car still sliding in the opposite direction. On a greasy rail I cannot give you any particular distance in which a car can be stopped.”

Another motorman said:

“When your track is greasy, a man might stop a car maybe within one hundred feet, running seven miles an hour. Might stop it in a hundred feet, but could net estimate that. You couldn’t make any estimate on it any nearer than that.”

Another said:

“Assuming the rail was slippery, or a greasy rail, I could not give you any particular distance in which I could bring it to a stop, because the car is sliding, and no one knowing when she will stop when she gets to sliding.”

Another testified:

“Assuming that I had got a greasy rail, I cannot give you any distance in which I could bring it to a stop, either by the úse of the brake or the reverse.”

The motorman in charge of the car testified that by the use of. sand the car could have been stopped more quickly than it was. If this had been done, the injury to the child could probably have been prevented, as only the front wheel of the car barely passed over his leg; a few inches of space would have saved him. The defendant had equipped all of its cars with sand boxes. The sand is carried in a "box under the seat of the car, and is sprinkled upon the rail by the motorman by pressing with his foot upon a valve. The car in question was provided with a sand box and valve. The defendant claimed that the sand was apt to cake in warm weather, and that it was actually used on its car only in the fall, winter and spring; hut it was shown to he as useful, necessary and effectual to stop or start a ear on a greasy rail in one season of the year as another. The claim of the defendant was that the injury was unavoidable; that by reason of the greasy condition of the rail the motorman could not stop his car in time to prevent the accident. The motorman said he could have stopped it if there had been sand. The necessity for the use of sand on .greasy or slippery rails had become apparent to the defendant. Its effect and operation upon rails in that condition were known. It had adopted its use, and provided attachments tind appliances on its cars for that purpose. It was the duty of defendant to have its car under control as it approached and crossed Orange street, and, if not actually slowed down, the motorman should have had the means at his command to stop the ear immediately upon the appearance of danger. O’Neil v. Railroad Co., 129 N. Y. 125; 41 St. Rep. 107; Buhrens v. Railroad Co., 53 Hun, 571; 25 St. Rep. 191. This was not a question of the introduction of a new appliance, hut as to the obligation of defendant, in the management of its cars, to use an appliance already approved and used, and the degree of care to be exercised in operating its road over the street crossings of a city. The degree of care, in thp management of its cm, exacted of a street-railway company using electricity as a motive power, and traversing the streets of a populous city, where danger to pedestrians is to he constantly guarded against, is not less than that required of the company to its passengers. Booth, St. Ry. Law, 33, 305-328, etc. We conclude that the court committed no error in its charge, nor in its refusal to charge upon the subject.

There were exceptions, also, by defendant "to the rulings of the trial court upon the admission and exclusion of evidence which also required consideration. The plaintiff’s mother testified that since the wound had apparently healed it had broken out, and dis•charged blood and matter; that the wound was very tender; that she called no physician, but cared for it herself. Rr. Rutherford, testified as to the cause of its breaking' out, and that, from the fact that the wound had once broken out, it was liable to do so again. He was then asked: “What do you say as to whether that result is probable and likely to occur?” To this question the defendant’s counsel objected as altogether too speculative, and not within the rule. The objection was overruled, and defendant excepted. Answer: “I hardly know how to answer that question. Still, as I said before, it might occur.” He had previously testified to this without obipctiou. Ho was made as to want of knowledge by the witness of the facts, or that the form of the question should have been hypothetical. The question was proper as calling for what was probable and likely to occur. Filer v. Railroad Co., 49 N. Y. 42; McClain v. Railroad Co., 116 N. Y. 459; 22 N. E. 1062; Alberti v. Railroad Co., 118 N. Y. 77; 23 N. E. 35; Reynolds v. City of Niagara Falls (Sup.), 30 N. Y. Supp. 954.

There were further exceptions by defendant to the rulings of the court during the examination of one of plaintiff’s witnesses. The witness testified that he was at the corner of Grape and Orange streets, and witnessed the accident; that he was 18 years of age; residing in the city of Rochester, and had formerly been a messenger boy; that he had timed himself while walking, and ascertained he could walk a mile in 15 minutes; that he saw the car before thmplaintiff was struck, and that it was going very fast. Question: “ITow can you express it in any other way?” Answer: “It was going twice as fast as I can walk.” The appellant’s counsel asked that the answer be stricken out, on the ground that it was within the ruling of the court on former objections, improper manner of proving the speed, and too indefinite. The motion was denied, and defendant excepted. Later the witness stated, “I think this car was going twice as fast as I went when I walked a mile in fifteen minutes.” There was no objection to the competency of the witness. The witness expressed no opinion, but stated a fact as to the speed qf the ear. He knew how fast he could walk. He had been a messenger boy in the city, with experience which that service gave him. The question of the rate of speed of cars is not a question necessarily for experts. It may be shown by a person of ordinary experience. Scully v. Railroad Co., 80 Hun, 197; 30 N. Y. Supp. 61. A man of ordinary experience in walking or riding about a city, observing the movement of other objects, with a knowledge of time and distance, would be capable, the first time he saw an electric car, of forming a judgment of its speed in passing. His evidence might not bo as satisfactory as that of a person who had been accustomed to time the speed of cars, but this would not render his evidence inadmissible. It would go to the weight, and not the admissibility, of the evidence. This evidence was cumulative, and corroborative only of other testimony given in behalf of plaintiff as to the speed of the car. We think it was competent. Salter v. Railroad Co., 59 N. Y. 632; Railroad Co. v. Van Steinburg, 17 Mich. 99; Guggenheim v. Railway Co., 66 id. 150. On the cross-examination of the same witness he was asked, “Did you enter your grandfather’s house in the nighttime, through an open window, and take from the room an article of value, and carry it away with you without his permission?” This was objected to by plaintiff “as immaterial and incompetent.” Objection was sustained, and defendant excepted. The only object of this question was to discredit the witness. Defendant’s counsel insists that the ruling was error, and urges that it was the rig’ht of defendant to impeach the character of this witness by a cross-examination, showing that he had committed the crime of burglary. Counsel asked no further question upon that subject, nor did he offer to show that witness had committed a crime. We hardly think that, even though the question had been answered in the affirmative, the crime of burglary would have been established, or that the jury would have been justified in so construing it. The boy, at the time of the trial, was 18 years old. By the question no time was fixed when he had entered his grandfather’s house. It might have been at an age when the law declares him incapable of committing a felony. For aught that appears, he may have done what is implied by the question actuated only by the spirit of boyish mischief, and with no intent of committing crime. The relationship of the parties—grandfather and grandson—seems to us to indicate an innocent, rather than a criminal, intent on the part of the grandson. However that may be, the question was upon irrelevant matter, and whether it was allowed was within the discretion of the court, and, in the absence of manifest abuse or injustice, not subject to review. The learned trial justice had the opportunity of seeing the witness, of observing his conduct and bearing while on the witness stand, and was capable of judging whether such examination into this boy’s life ought to be permitted or denied. He decided, in the interest of justice, that this witness— so far as appears, perfectly disinterested and truthful—should not be subjected to such an examination, and permit it to be perpetuated in the record of this action. The ruling of the learned trial justice is in accord with the decision in Turnpike Road Co. v. Loomis, 32 N. Y. 127. In the course of the opinion in that case, the court says:

“The judgment now under review was rendered on the assumption that it is the absolute legal right of a litigant to assail the character of every adverse witness, to subject him to degrading inquiries, to make inquisition into his life, and drive him to take shelter under his privilege, or to self-vindication from unworthy imputations, wholly foreign to the. issue in which he is called to testify.” “If the judgment of the court below be upheld by the sanction of this tribunal, it will embody in our system of jurisprudence a rule fraught with infinite mischief. It will subject every witness, who, in obedience to the mandate of the law, enters a court of justice to testify on art issue in which he has no concern, to irresponsible accusation and inquisition in respect to every transaction of his life affecting his honor as a man or his character as a citizen.” “A question which is alike degrading to answer or decline to answer, should never be put, unless, in the judgment of the court, it is likely to promote the ends of justice. A rule which would license indiscriminate assaults on 'private character under the forms of law would contribute little to the development of truth, and still less to the furtherance of justice.” “None of the decisions tend to sustain the proposition that the exclusion of inquiries as to the particular transactions, wholly irrelevant to the issue, for the purpose of degrading the witness, is cause for reversal hy any appellate tribunal.”

While this question has seemingly been one where diverse views have been held by judicial writers, the weight of the authorities has clearly established the rule that it is discretionary with the trial court whether inquiries tending to disgrace a witness shall be excluded or admitted, unless the evidence would bear directly upon the issue. Lohman v. People, 1 N. Y. 380—385; Greton v. Smith, 33 N. Y. 345, affirming 1 Daly, 380; La Beau v. People, 34 N. Y. 223, affirming 6 Parker, Cr. R. 371; Shepard v. Parker, 36 N. Y. 517; Southworth v. Bennett, 58 id. 659; People v. Casey, 72 id. 393; People v. Brown, Id. 571; People v. Crapo, 76 id. 288.

The appellant claims that the trial court did not base its ruling upon the discretionary powers vested in the court, but upon other grounds. We do not so understand the record. In any event, we ought not to reverse upon a correct ruling because founded upon a wrong reason, unless possibly in a case where the grounds given for the ruling could be seen to have misled a party to his injriry. Marvin v. Insurance Co., 85 N. Y. 278.

We are of the opinion that the judgment and order should be affirmed, with costs.

All concur.


text:
    George L. Pratt, App'lt, v. Dwelling-House Mutual Fire Insurance Company of Orleans, Niagara and Monroe Counties, Resp't.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed June 17, 1896.)
    1. Insurance—Mutual eire—Receiver.
    Section 7, chapter 362 of 1880, as amended hy chapter 171 of 1881, does authorize a mutual insurance company or its receiver to assess the solvent members of the company for the deficiency caused hy nonpayment of assessments hy insolvent members.
    S. Same,
    In such case, the receiver is authorized by statute to make the assessment, and to that end to make application to the court, setting out the necessity for levying assessments.
    3. Same.
    Notice of the hearing before the referee should he given hy him to all members sought to'be assessed, and they should be allowed to contest the application, and, if necessary, to accept to the referee’s report and oppose its confirmation.
    4. Same.
    It is the duty of the claimant in such proceedings to inform the receiver and the court of the members of the association liable to assessment for the payment of his claim.

      Appeal from an order denying a motion to conform the report of a referee.
    The defendant was a mutual insurance company, organized under chapter 362, Laws 1880, as amended by chapter 171, Laws 1881. July 27, 1892, the plaintiff recovered a judgment against defendant, on account of loss by fire, covered by a policy of insurance issued by defendant for the sum of $2,601.30 damages and $800.94 costs and disbursements. An execution was issued thereon and returned wholly unsatisfied. Thereafter an action was instituted for the appointment of a receiver of the defendant corporation, and judgment obtained appointing a receiver, who duly qualified, and is still acting as such. The company had no assets, and the only person having a claim against the company is this plaintiff. The only mode of paying plaintiff’s judgment was by assessment of the members. The court, upon application on behalf of plaintiff, granted an order allowing the receiver to make an assessment upon the members of said corporation. Said receiver made such assessment, and the same would have been sufficient to pay said judgment, expenses, and fees had all the persons assessed paid their assessments. This was not done, and the receiver has paid on such judgment the sum of $2,200, leaving a balance unpaid of about $1,000. The plaintiff again applied for an order that the receiver make a reassesment upon the solvent members of defendant to pay this deficiency. It was claimed that some of the members assessed were insolvent, that some claimed to have been assessed erroneously, and some that they were not members of the defendant at the time of the loss by fire, and therefore the assessments could not be collected in full. Upon the application a reference was ordered, and the referee required to take proofs and report to the court on the propriety and legality of making a reassessment against the members of the company who have already paid an assessment for the purpose of paying-said claim against the company. The referee reported in favor of such reassessment. The court refused to confirm the referee’s report, and denied the application for the order permitting receiver to malee such reassessment, and from that order this appeal was taken. The receiver opposes the application, and alleges that there are no assets in his hands as such receiver, and demands that, if the receiver be ordered to make a second assessment, plaintiff be required to indemnify the receiver for all coste and expenses he may incur in an attempt to enforce such an assessment, if one shall be ordered.
    John J. Ryan, for app’lt; Edmund L. Pitts, for resp’t receiver.
   GREEN, J.

The defendant was organized as a mutual insurance company by virtue of chapter 362 of the Laws of 1880, as amended by chapter 171 of the Laws of 1881. By section 7 of that act it is provided that:

“Every person * * * so insured shall give his contract or agreement, binding him, her or them, or assigns, to pay their pro rata share to the company of all losses or damages, caused by fire or lightning, which may be sustained by any member or members thereof. He^ she, it or they, shall also pay such percentage in lawful money, and such reasonable sum for policies and expenses and within such time as may be required by the by-laws of said company.”

It is over the construction of this section that the main contention on this appeal arises. The appellant insists that this provision of the statute should be construed to authorize the company or its receiver to assess the solvent members of the company for the deficiency caused by nonpayment of assessments by insolvent members. The words of the statute are direct, plain, and unambiguous. A literal and unrestricted interpretation preserves the plain, paramount intention of the lawmakers clearly expressed by the statute. The title of the act under which this company is organized is, “An act to provide for the formation of county and town co-operative insurance companies,” indicating at the outset that those who organized themselves into a corporation under the act were to operate jointly and together to the same end. It is provided by the statute that every person who becomes a member of the corporation shall pay his pro rata share to the company of all losses or damages caused by fire or lightning which may be sustained by any member or members thereof. It surely would be a strained construction to say that it. was intended by the use of these words to bind eaeh member of the company to the payment of an entire loss, if all other members should prove to be insolvent. If it were so intended, the words “pro rata”—that is, a distribution proportionally—would not have been used in expressing the intention of the legislature. There is nothing in the statute which indicates that the members of a corporation organized thereunder were to indemnify those insured against loss by reason of the insolvency of a member, nor any obligation to pay the share or proportion of any other member who might become insolvent, or from any cause unable to pay bis proportionate share of the loss. Under the construction contended for by appellant, a solvent member might be compelled to pay the entire loss, and also the expenses of the company or receiver in ascertaining and determining the question of the solvency or insolvency of the members. Will it be contended for a moment that any person would become a member of such a corporation knowing that he might become liable individually to pay all the the losses occurring in the class where he was insured ? If such were the intention expressed in this statute, and so expressed as to be clearly understood and comprehended, there would be no corporation organized under the law, for no sane man would venture upon so hazardous an undertaking. The regnant idea and intention of the statute are that each member of the company is to pay such proportion of the loss as the amount of his insurance bears to the whole amount of insurance in the same class. The liability of the member is not joint and several, but the principle is that each one contracts that, in respect of a certain sum or premium to be levied by a» pro rata contribution on the amount for which he himself is insured, he will contribute to pay the contingency insured against, which may occur to any other member; but there is no párticipation by any member in respect of the liability of any other in regard to solvency, default, or dishonor. ¡No member insures the solvency, the honesty, or good faith of other members. The question of contribution depends on the contract, and not on equitable considerations. A member undertakes no liability other than that of being able to contribute his share of the losses, and he never in any way made himself a party to the debt or obligation of any other member to a suffering member. Each member, foreseeing the contingency •of himself suffering a loss, took his chances with the rest. ITe dcncw when he executed his contract that, if he suffered loss by fire, his entire loss might not be made up to him, for the contract he and all other members executed provided that each member should pay only his proportionate share of such loss, and not tHe share of a defaulting or dishonest member. Each man agreed to pay, but his proportion was limited, and beyond that he could not be called upon. In my opinion, this is the true intent and meaning of the statute. Undoubtedly the receiver is authorized by statute to make the assessment, and to that end to make application to the court, setting out the necessity for levying assessments. The petition is ex parte, the order for making the assessment granted in an ex parte order, and the confirmation thereof ex parte. The members have no day in court, and no opportunity of ascertaining the nature and extent of the indebtedness, or the amount necessary to be assessed upon each member to pay the debts and liabilities of the company, and the expenses of the receiver in collecting the assessment. This was the course adopted in the proceeding upon malting the assessment which has been made, and the course adopted in the present proceeding. The members received no notice of the hearing before the referee, who was appointd to take the proof, and report, with his opinion as to whether a second assessment should be made. Such a course is obviously liable to abuse, and provocative of litigation. ¡Notice of the hearing before the referee should have been given by him to all members sought to be assessed, and they should have been allowed to contest the application, and, if necessary, to except to the referee’s report, and oppose its confirmation. One assessment has already been authorized by the court and made by the receiver for the purpose of paying the indebtedness of the company to plaintiff. There was a deficiency, caused, as plaintiff claims, by reason of the fact that some of those assessed as members contested the assessment, and were successful, some were dead, and some insolvent. The statement as to the cause of the deficiency is vague and indefinite. The record does not disclose how many members so assessed were insolvent, nor how many were dead, nor how many were successful in contesting the assessments. The former proceeding was instituted solely in the interest of plaintiff, who was a former officer of the company, and a member of the same. It was his duty in such proceeding to have informed the receiver and the court of the members of the association liable to assessment for the payment of his judgment, and, not having done so at that time, and not definitely informing the court upon this application, made by himself, as to who or how many of the members he claimed are liable to assessment, he ought not to complain if he is now precluded from compelling the receiver to malee another assessment. The present proceeding is conducted by the plaintiff and against the opposition of the receiver, who insists that it is unauthorized, and, if ordered, will he resisted by the members assessed, on the ground that they have already been assessed their pro rata share,, as provided by their contracts, and are under no further liability. This assessment should not be authorized by the court under these circumstances, unless it clearly appears that the members are under further liability under the statute and their contracts executed in accordance with the statute. We think this has not been shown, and that the order appealed from should he affirmed, with costs against the plaintiff.

All concur, except WARD, J., who dissents.