author: Andrews, Ch. J.

text:
    Sophia Booth, Resp’t, v. The Rome, Watertown & Ogdensburg Terminal Railroad Co., App’lt.

      (Court of Appeals,

      Filed December 5, 1893.)

    Nuisance—Blasting—Charge.
    Defendant, in order to comply with conditions imposed by the city autliorities, was obliged to depress its roadbed at a point adjoining plaintiff’s premises, and iiidoing so it was necessary to blast to remove rock. ¡No rock was thrown upon plaintiff’s premises, but her house was injured by the jarring oí the ground or concussion of the atmosphere, or both. It was conceded that defendant used due care in the work. Held, that the use of the explosives did not, under the circumstances, constitute a private nuisance, and that it was error to charge that defendant in using them did so at its peril and was liable for any injuries done to plaintiff’s house, and “ that it made no difference whether the work was done carefully or negligently.”
    Appeal from a judgment of the general term of the fifth department, affirming a judgment on verdict for the plaintiff. The principal facts upon which the question presented, arises are as follows:
    The defendant is a railroad corporation organized under the general railroad law of this state. In 1887 it owned a lot in the city of Bochester, extending from the west side of St. Paul street to the Genesee river, adjacent to a lot owned by the plaintiff on the south, purchased by her in 1885, on which was a dwelling occupied by her, fronting on St. Paul street, the north side of which was about six feet south of the north line of her lot. The defendant projected an extension of its road from a point east of St. Paul street to the Genesee river and thence across the river by a bridge. It obtained the consent of the tiiunicipal authorities to cross St. Paul street by a tunnel or cutting, and proceeded to extend its road across the street to the river. Its line crossed St. Paul'street from a point on the east side of the street, opposite the lot of the defendant, striking the center of the defendant’s lot on the west side, and thence ran longitudinally through the lot to the bank of the river.
    It became necessary, in order to comply with the conditions imposed by the city authorities, that the defendant’s roadbed atibe crossing should be depressed fifteen feet or more below the surface of the street. The excavation required for this purpose involved also the necessity of continuing the cutting through the lot of the defendant so as to procure a uniform grade. The soil extended about ten feet below the surface, and underlying that was rock, which it became necessary to remove to the depth of about four feet. It was loosened by blasting with gunpowder. It was claimed by the plaintiff, and evidence was given tending to show, that in consequence of the blasting the plaintiff’s house was seriously injured ; that the foundations were cracked, the beams and joists pulled apart, the plaster loosened, and that generally the house was wrenched and rendered insecure. It is not claimed that any rock or materials were thrown by the blasts upon the plaintiff’s lot. In what particular way the injury was produced was not shown. It may be inferred that it was caused by the jarring of the ground or the concussion of the atmosphere created by the explosions, or by both causes combined. It was, however, affirmatively proven, without contradiction, that there was no disturbance of the earth on the sides of the excavation, and that gas and water-pipes in the street, exposed by the excavation, were not displaced or injured.

      It was substantially conceded that the defendant exercised due care in conducting the blasting, and that it was necessary in order to remove the rock. There was evidence tending to show that the persons engaged in the work were informed from time to time during its progress that injury was being done to the plaintiff’s house. The trial judge instructed the jury that the defendant in using powerful explosives in blasting the rock used them at its peril,, and that if the plaintiff’s house was injured thereby the defendant-was liable for the damages occasioned, and “ that it made no-difference whether the work was done carefully or negligently.” Exception was taken by the defendant to this-instruction. The jury found that the damage to the house from the blasting was _ $1,750, and this sum was included in the verdict.
    The court overruled the contention of the defendant that in-constructing its road it was acting under legislative authority, and was on that ground, in the absence of negligence, exempted from liability, even although as between individuals an action might be maintained.
    Other facts are stated in the opinion.

      P. M. French, for app'lt; David Hays, for resp’t.
   Andrews, Ch. J.

We entertain no doubt of the correctness of the ruling at the circuit that the defendant stands in no better position in defending the action than if the controversy was between individuals.

The rule that the legislature may, in the public interest and for public purposes, authorize and legalize acts causing consequential injury to private property, not amounting to a taking, without •providing compensation, and that the legislative authority may be pleaded in bar of any claim for indemnity, although if .the act had been done without such authority an action would lie, has no apt plication.to acts of a railroad or other private corporation in the execution of chartered or statutory powers.. The rule adverted to, although operating in some cases with great severity, which compels an individual to bear a special loss for the benefit of the community at large, in place of distributing the burden, is an application of the maxim salus populi est suprema lex, and rests upon the transcendent power. of the legislature, without constitutional limitations, to enact whatever it may deem essential to the public welfare. But while there are decisions which give countenance to the view, that an authority conferred upon a railroad corporation to construct a railroad carries with it immunity from liability in executing the work for consequential damage to private property to the same extent as pertains to the sovereign in executing public works, Bellinger v. N. Y. C. R. R. Co., 23 N. Y., 42, it is now the settled doctrine in this state that the powers granted to such corporations are to be construed as privileges conferred, but upon the understanding that they shall be exercised in strict conformity to private rights and under the same responsibility as though the acts done in execution of such powers were done by an individual. Cogswell v. N.Y., N. H. & H. R. R. Co., 103 N.Y., 10; 3 St. Rep., 56. This doctrine accords with reason and with the presumed intention of the legislature. The franchises of a railroad corporation are conferred in consideration of supposed public benefits which will result from the construction of its road. The projectors of such an enterprise are moved by considerations of personal advantage. To acquire corporate character and privilege they are willing to subject themselves to certain public duties. But it is quite unreasonable that in executing its corporate powers the corporation should be exempted from liability for injuries to private property, as though it was acting as a strictly public agent. There may'be limited exceptions, as in cases of highway crossings, where an adjustment of the grade becomes necessary, working a consequential injury to adjacent landowners which is remediless, and the legislative authority will also bar any remedy for certain discomforts consequent upon the necessary operation of the road, such as noise and smoke of passing trains.

We, therefore, agree with the courts below that the right of the plaintiff to recover in this case, and the liability of the defendant, depends upon the same rule as would govern the parties if both were natural persons, and the injury to the plaintiff’s dwelling had resulted from blasting by an adjacent owner on his land in the course of adapting it to individual uses.

The plaintiff, upon the findings of the jury, sustained a serious injury. It is true that witnesses on the part of the defendant-gave evidence tending to show that the house was imperfectly-constructed, and that the foundation walls were giving way before the excavation was commenced. But the verdict having been affirmed by the general term, there can be no controversy here that the blasting caused damage to the house tó the amount o| the verdict. But mere proof that the house was damaged by the blasting would not alone sustain the action. It must further appear that the defendant in using explosives violated a duty owing by him to the plaintiff in respect of her property, or failed to exercise due care.

Wrong and damage must concur to create a cause of action. If the injury was occasioned by the omission to use due care, this alone would sustain the action, even if the right of the defendant to use explosives in removing the rock was conceded.

If one by carelessness in making an excavation on his own land causes injury to an adjoining building, even where the owner of the house has no easement of support, he will be liable. Leader v. Moxon, 3 Wils., 460; Lawrence v. Great Northern R. Co., 16 Ad. & El., N. S., 643-653 ; Leake’s Law of Real Prop., 248. The law exacts from a person who undertakes to do even a lawful act on his own-premises, which may produce injury to his neighbor, the exercise of a degree of care measured by the danger to prevent or mitigate the injury. The defendant could not conduct the operation of blasting on its own premises, from which injury might be apprehended to the property of his neighbor, without the most cautious regard for his neighbor’s rights. This would be reasonable care only under the circumstances. If it was practicable in a business sense for the defend■ant to have removed the rock without blasting, although at a somewhat increased cost, the defendant would, we think, in view of the situation, and especially after having been informed of the injury that was being done, have been bound to resort to some other method. There is evidence that rock from some parts oí the excavation was loosened by the use of iron bars, and if this was practicable as to all of it the jury might well have found that this means should have been adopted. So, also, if less powerful blasts might have been used, which, if used, would not have occasioned injury, or would have lessened it, the omission to use them might well be considered as negligence. The mode of exercising a legal right, where there is a choice of means, may of itself give a cause of action. The plaintiff, however, on this record is precluded from claiming that the judgment may be sustained because of negligence in the mode of blasting. It must be assumed from concessions made on the trial and from the rule of law laid down by the court, that blasting was the only mode of removing the rock practically available ; that it was conducted with due care, and that it was necessary to enable the defendant •to conform the roadbed to the established grade. This is a case, therefore, of unavoidable injury to the plaintiff’s house, occasioned by the act of the defendant in blasting on his own premises, in order to adapt them to a lawful use, the mode adopted being the only practicable one and the work having been prosecuted with due care and without negligence. The question is, whether the act of the defendant, connected with the resulting injury, was a legal wrong for which the plaintiff has a right of action.

The general rule that no one has absolute freedom in the use of his property, but is restrained by the co-existence of equal rights in his neighbor to the use of his property, so that each in exercising his right must do no act which causes injury to his neighbor, is so well understood, is so universally recognized, and stands so impregnably in the necessities of the social state, that its vindication by argument would be superfluous. The maxim which embodies it is sometimes loosely interpreted as forbidding all use by one of his own property which annoys or disturbs his neighbor in the enjoyment of his property. The real meaning of the rule is that one may not use his own property to the injury of any legal right of another. The cases are numerous where the lawful use of one’s property causes injury to adjacent property for which there is no remedy, because no right of the adjacent owner is invaded, although he suffers injury. The cases of excavation furnish a striking illustration.

The easement of natural support of the land of one by the land of the adjacent owner applies only to lands in their natural condition, and does not extend so as to give the owner of a building erected on the confines of his land the right to have it supported laterally by the land of his neighbor; and so it has become the settled doctrine of the law that if one by excavating on his own land adjacent to the land of his neighbor, using due care, causes a building on his neighbor’s land to topple over, there is no remedy, provided the weight of the building caused the land on which it stood to give way. There is in the case supposed injury, but no wrong, because what was done by the adjacent owner was in the lawful and permitted use of his own property. Wyatt v. Harrison, 3 B. & Ad., 871; Partridge v. Scott, 3 M. & W., 220 ; Lasala v. Holbrook, 4 Paige, 170; Thurston v. Hancock, 12 Mass., 220.

The fundamental proposition upon which the plaintiff’s counsel rests his argument in support of the recovery is, that the use of the explosives in blasting constituted, under the circumstances, a private nuisance, and that according to the general rule of law one who creates or maintains a nuisance is liable for any special injury to person or property resulting therefrom. The right of the defendant to excavate on its land for its roadbed is not challenged, but the right to use the destructive agency of gunpowder in the work of excavation, liable to produce injury, and which did occasion it, is denied. The exception is not to the thing done, but to the mode of doing it. It is to be observed, however, that under the concessions in the case, and the rulings on the trial, it must be assumed that the excavation could not have been done except by the use of explosives. This mode of doing the work was, therefore, of the substance of the right, if the right existed at all. It has been frequently said that the right of an owner of land to use his property as he likes does not justify the maintaining of a nuisance, or the commission of a trespass, and Blackstone, after stating that where one, by smelting works on his own land, causes noxious vapors, which injure the corn or grain on his neighbor’s land or damages his cattle, this would be a nuisance, proceeds to say, “that if you do any other act in itself lawful, which yet, being done in that place, necessarily tends to the damage of another’s property, it is a nuisance, for it is incumbent on him to find some other place to do that act where it will be less offensive.” 2 Black. Com., ch. 13, p. 218.

There are many illustrations in the books of the doctrine stated by the learned commentator, that the use or one’s own land for the purpose of a lawful trade may become a nuisance to his neighbor. But whether a particular act done upon, or a particular use of one’s own premises constitutes a violation of the obligations of vicinage would seem to depend upon the question whether such act or use was & reasonable exercise of the right of property, having regard to time, place and circumstances. It is not everything in the nature of a nuisance which is prohibited. There are many acts which the owner of land may lawfully do, although it brings annoyance, discomfort or injury to his neighbor, which are damnum, absque injuria. The case of the building caused to fall by an excavation in an adjoining lot, already referred to, is an illustration. The right of an owner of a mine to excavate the mineral in his mine, although by so doing it causes the water to collect therein and to be discharged into an adjacent mine on a lower level, thereby causing damage to the mine of such adjacent owner, is another illustration of a lawful use of property followed by damage to the property of another for which no action lies. Smith v. Kenrick, 7 C. B., 515; Baird v. Williamson, 15 C. B., N. S., 375; Wilson v. Waddell, 2 App. Cas., 95. In referring to these cases, in Hurdman v. North Eastern Railway Co., L. R., 3 C. P. Div., 168, the court said: “The owner of' lands holds his right to the enjoyment thereof subject to such annoyance as is the consequence of what is called the natural use by his neighbor of his land, and that, where an interference with his enjoyment by something in the nature of a nuisance is the cause of complaint, no action can be sustained if this is the result of a natural use by a neighbor of his land.”

Whether a particular act or thing constitutes a nuisance may depend on the circumstances and surroundings. The use of premises for mechanical or other purposes causing great noise, disturbing the peace and quiet of those living in the vicinity, and rendering life uncomfortable, or filling the air with noxious vapors, or causing vibration of the neighboring dwellings, constitute nuisances, and such use is not justified by the right of property. Fish v. Dodge, 4 Den., 311; McKeon v. See, 51 N. Y., 300. Cogswell v. R. R. Co., supra. These and like cases are those where the property of the owner is appropriated to a permanent use which is a constant and serious interference with the enjoyment by other property owners of their property. But there is a manifest distinction between acts and uses which are permanent and continuous and temporary acts which are resorted to in the course of adapting premises to some lawful use. For example, the erection of an iron building adjacent to a dwelling might, for the time being, cause as much noise and discomfort as would arise from conducting the business of finishing steam boilers on adjacent premises, but this would not constitute a nuisance, and the owner of the dwelling would have no remedy. The streets may be obstructed temporarily, subject to municipal regulations, for the deposit of building materials, and the party would not be chargeable with maintaining a nuisance. The test of the permissible use of one’s own land is not whether the use or the act causes injury to his neighbor’s property, or that the injury was the natural consequence, or that the act is in the nature of a nuisance, but the inquiry is, was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his property, having regard to all interests affected, his own and those of his neighbors, and having in view also public policy.

The rule announced by the trial judge, that the use by an owner of property of explosives in excavating . his land is at his peril, and imposes liability for any injury caused thereby to adjacent property irrespective of negligence, is far reaching. It would constitute, if sustained, a serious restriction upon the use of property, and in many cases greatly impair its value. The situation in the city of New York furnishes an apt illustration. The rocky surface of the upper part of Manhattan Island makes blasting necessary in the work of excavation, and, unless permitted, the value of lots, especially for business uses, would be seriously affected. May the man who has first built a store or warehouse or dwelling ■on his lot and has blasted the rock for a basement or cellar, prevent his neighbor from doing the same thing when he comes to ■build on his lot adjoining, on the ground that by so doing his own structure will be injured? Such a rule would enable the first ■occupant to control the uses of the adjoining property, to the serious inj ury of the owner, and prevent, or tend to prevent, the improvement of property. The first occupant in building on his lot exercised an undoubted legal right. But his prior occupation ■deprived his neighbor of no legal right in his property. The first ■occupant acquires no right to exclude an adjoining proprietor from the free use of his land, nor to use his own land to the injury of his neighbor subsequently coming there. Platt v. Johnson, 15 Johns., 213; Thurston v. Hancock, supra; Tipping v. St. Helen's Smelting Co., L. R., 1 Ch., 66; Campbell v. Seaman, 63 N. Y., 568.

The fact of proximity imposes an obligation of care, so that one engaged in improving his own lot shall do no unnecessary damage to his neighbor’s dwelling, but .it cannot, we think, exclude the former from using the necessary and usual means to adapt his lot to any lawful use, although the means used may endanger the house of his neighbor.

We have found no case directly in point upon the interesting .and important practical question involved in this appeal.

It was held in the leading case of Hay v. Cohoes Co., 2 N. Y., 159, that the right of property did not justify the owner of land in committing a trespass on the land of his neighbor by castingrocks thereon in blasting for a canal on his own land for the use of his mill, although he exercised all due care in executing the work. In that case there was a physical invasion by the defendant of the land of the plaintiff. This the court held could not be justified by any consideration of convenience or necessity connected with the work in which the defendant was engaged. In the conflict of rights the court considered that public policy required that the right of the defendant to dig the canal on his own land must yield to the superior right of the plaintiff to be protected against an invasion of his possession by the act of the defendant. The case of Benner v. Atlantic Dredging Co., 134N. Y., 156 ; 45 St. Rep., 774, was the case of. an injury to the plaintiff’s house, resulting from the jarring caused by the blasting of rocks in Hell Gate, and it was held that the injury was remediless, for the reason that the defendant was acting under the authority of the government of the United States by virtue of a contract authorized by congress.

It has been held that the keeping of gunpowder in large quantities near inhabited dwellings is a nuisance, and in the case of explosion subjects the party keeping it to liability for damages occasioned thereby. Myers v. Malcolm, 6 Hill, 292; Heeg v. Licht, 80 N. Y., 579. So also it has been held that the working of quarries by the use of gunpowder, to the injury of property in the vicinity, gives a right of action. City of Tiffin v. McCormack, 34 Ohio St., 638; Scott v. Bay, 3 Md., 431. Many of the cases cited by the counsel are cases of the permanent appropriation of property ior damages or noxious uses causing damage. The distinction between such cases and those where the injury arises from acts done in the necessary adjustment of property for a lawful use by means necessary and not unusual, but involving damage to adjacent property, has been adverted to. We recognize the difficulty of formulating a general rule regulating the rights of adjacent landowners in the use of their property, and we realize how narrow the margin is which separates this from some decided cases. In Marvin v. Brewster Iron Co., 55 N. Y., 557, the opinion of the-learned judgé who wrote in that case sustains the conclusion we have reached in this case. But the point was not necessarily involved, since it was held that the defendant there had acquired by grant the right to employ blasting in removing the mineral, and-that the plaintiff, a subsequent grantee of the surface, could not complain of injury to his house therefrom in the absence of negligence on the part of the defendant in conducting the work. Judge Folger in that case said: “ Whatever it is necessary for him (defendant) to do for the profitable and beneficial enjoyment of his own possession, and which he may do with no ill effect to the adjacent surface in its natural state, that he may do though it harm erections lately put there.’ If the learned judge intended to lay down the rule that the owner of land may do anything on his own land which would do no injury to the adjacent property if it had remained in its natural state, the proposition is probably too broad. One may do in a barren waste many things which he could not lawfully do in or near an inhabited town.

But the defendant here was engaged in a lawful act. It was done on its own Iand.to fit it for a lawful business. It was not an act which, under all circumstances, would produce injury to his neighbor, as is shown by the fact that other buildings near by were not injured. The immediate act was confined to its own land, but the blasts, by setting the air in motion, or in some other-unexplained way, caused an injury to the plaintiff’s house. The lot of the defendant could not be used for its roadbed until it was excavated and graded. It was to be devoted to a common use; that is, to a business use. The blasting was necessary, was carefully done, and the injury was consequential. There was no technical trespass. . Under these circumstances, we think, the plaintiff has no legal ground of complaint. The protection of property is doubtless one of the great reasons for government. But it is equal protection to all which the law seeks to secure. The rule governing the rights of adjacent landowners in the use of their property seeks an adjustment of conflicting interests through a reconciliation by compromise, each surrendering something of his absolute freedom so that both may live. To exclude the defendant from blasting to adapt its lot to the contemplated uses, at the instance of the plaintiff, would not be a compromise between conflicting rights, but an extinguishment of the right of the one for the benefit of the other. This sacrifice, we think, the law does not exact. Public policy is sustained by the building up of towns and cities and the improvement of property. Any unnecessary restraint on freedom of action of a property owner hinders this. The law is interested also in the preservation o£ property and property rights from injury. Will it in this case protect the plaintiff’s house by depriving the defendant of his right to adapt his property to a lawful use, through means necessary, usual and generally harmless ? We think not.

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

All concur.

      Reversing 44 St. Rep., 9.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Margaret S. Chamberlain, Ex’rx.

      (Court of Appeals,

      Filed December 12, 1893.)

    1. Executors and administrators—Assets—Growing grass.
    Growing grass partakes oí the nature of realty, and does not go to the executor or administrator, but follows the land and belongs to the heir or devisee.
    3. Same.
    After the death of a landlord, the tenant, who worked the farm on shares, cut the grass and paid over the landlord’s share of the proceeds of the hay to the executrix, who was the life tenant. Held, that such share was in the nature of rent reserved which accrued after the landlord’s death, and that the same was not assets in the executrix’ hands, but belonged to her as life tenant.
    3. Same—Accounting—Evidence.
    The fact that a part of the preliminary examination of the executrix taken in a distinct proceeding was offered by the contestant on the accounting does not open the door for the admission of the whole testimony, but only to such parts as tended to explain such portions as had been admitted on the contestant’s offer.
    Appeal from judgment of the supreme court, general term, fifth department, affirming decree of the surrogate of Cayuga county, settling appellant’s accounts as executrix of her husband, Julius; W. Chamberlain.

      Frank S. Coburn, for app’lt; Frederic E. Storke, for resp’t.

      Modifying 46 St. Rep., 841.

   Andrews, Ch. J.

We think the surrogate erred in charging the executrix with the sum of $173.29, the amount received by her for hay grown upon the farm in 1889. The testator died in June of that year, and the tenant of the farm, who worked it upon shares, cut the grass thereafter and paid over to the executrix that sum as her share of the proceeds of the hay under the agreement with the testator. The executrix was devisee for life of the farm. Growing grass partakes of the nature of realty. Heither at common law nor under our statute does it go as assets to the executor or administrator, but follows the land and belongs to the heir or devisee. Evans v. Roberts, 5 B. & C., 829; Kain v. Fisher, 6 N. Y., 597; 2 Rev. St., 82, § 6, sub. 6.

On the other hand, corn and other annual crops produced by care and cultivation, and not growing spontaneously, are at common law, as between heir and executor or administrator, treated as chattels, and under our statute are assets for the payment of debts even as against the devisee. Williams on Ex’rs, vol. 1, p. 70 ; 2 Rev. St., 82, § 6, sub. 5; Stall v. Wilbur, 77 N. Y., 158.

It must be assumed, in the absence of evidence, that the executrix took the proceeds of the hay in the character of life tenant and not as executrix.' There was no change in the legal character -of the grass by any act or contract of the testator in his lifetime. His share in the proceeds of the, grass was in the nature of rent reserved, which accrued after the testator’s death. The decree should, therefore, be modified by deducting from the amount charged against the executrix the sum of $173.29, and any interest which may have been allowed thereon.

The other point urged, that the surrogate erred in not permitting the executrix to read in evidence on the accounting the whole of her preliminary examination, is not well taken. That examination was taken under § 2735 of the Code (since repealed) in a proceeding distinct from the accounting and not a part thereof. Her testimony in that proceeding was admissible against her on the accounting as to any material fact, as her admission, but not otherwise. The surrogate properly ruled that only such parts of the testimony as tended to explain such portions as were offered in evidence by the contestant were admissible in her behalf, and that the fact that a part was offered by the contestant did not open the door for the admission of the whole testimony.

The judgment below should be modified in conformity with this opinion, and as modified affirmed, without costs to either party.

All concur.


author: Maynard, J.

text:
    In the Matter of the Appraisement of Certain Legacies and Assessment of Collateral Inheritance Taxes thereon under the will of John Knoedler, Deceased. Roland F. Knoedler et al., App’lts, v. Theo. W. Myers, Comptroller, Resp’t.

      (Court of Appeals,

      Filed December 12, 1893.)

    Collateral Inheritance tax—Life insurance policies.
    Policies of insurance upon the life of a decedent payable to him, his executors, administrators and assigns, or to his legal representatives, are assets of the estate, and as such are taxable under the collateral inheritance act.
    Appeal from order of the supreme court, general term, first department, affirming an order of the surrogate of Hew York county affirming an order theretofore made by him confirming the reports of an appraiser appointed under the collateral inheritance act.

      B. F. Watson, for app’lts; Emmet R. Olcott, for resp’t.

      Affirming 52 St. Rep., 47.

   Maynard, J.

The appellants object to the assessment of a tax under the collateral inheritance law upon that part' of the estate of the testator, amounting to $65,000 and upwards, which is the proceeds of four life insurance policies held by him at the time of his death. They iñsist that the value of these policies should not have been included in the appraisement made by order of the surrogate, because they were not property in such a sense as to be the subject of appraisal, or the basis of computation for the ascertainment of the tax, under chapter 713 of the Laws of 1887, which was in force when the testator died, January 8, 1891.

Three of the policies were payable to the testator, his executors, administrators and assigns, and the fourth was a paid-up policy, payable to his legal representatives. The companies who issued them were all solvent, and the conditions precedent and subsequent required to be observed in order to enforce liability thereon must be deemed to have been performed, for, in April, Í891, and before the final appraisement, they were all paid in cash to the administrator with the will annexed. Indeed, the value of the policies at the time of the death of the testator cannot be the subject of review upon this appeal. The appraiser has found the value from competent evidence; the surrogate has confirmed his report, and the only objection made by the appellants to the report and the assessment of the tax was upon the ground that the amount of the policies was not taxable under the law.

Section 1, which is the only part of the act now material to be considered, provides in substance that all property which shall pass by will from any person seized and possessed of the same to any person or persons shall be subject to a tax at a specified rate. The burden of the .appellants’ effort seems to be to establish that these policies were not property of which the testator was seized and possessed at the time of his death. But it must be admitted that they were obligations to pay money at a future date, and every instrument duly executed and having a lawful consideration, which secures to the holder the payment of money at a specified time, confers upon him a right of property. The statute has declared what shall be deemed assets of the estate of a deceased person and subject to distribution by his executors or administrators, 4 R. S., (8tli ed.), 2556, § 6, and includes among them all ehoses in action, and “ every other species of personal property and effects.” It is plain that these policies were assets of the estate. The collateral inheritance law is very broad in its provisions. All property which the decedent owned when he died and which has an appraisable value is to be included, subject, of course, to the payment of debts and to such exceptions as are specifically mentioned, but which have no application here. If these policies were not assets, then the appellants derived no title to their proceeds under the will, and they cannot make title through any other source. It is only such property as the testator died seized and possessed of and its increase that they can claim as his legatees. If, when the appellants applied for their share of the estate under the will, the administrator had withheld the moneys collected upon the insurance policies on the ground that they did not pass by the will, his position would have appeared to have been quite as reasonable and tenable as that advanced by the appellants to resist the collection of this tax. The argument is made that it is only property which is liable to taxation under the general tax law of the state which can be taxed under the act relating to-taxable transfers, and that, inasmuch as life insurance policies cannot be included in the valuation of a taxpayer’s property under the general law, they cannot be considered in assessing a tax under the collateral inheritance law. The main premise upon which this proposition rests is manifestly inadmissible. The taxable transfer law has no reference or relation to the general law. The two acts are not in pari materia. While the object of both is to raise revenue for the support of the government, they have nothing else in common. Nearly sixty years intervened between the passage of the earlier and the later statute, and the latter was enacted under different conditions from the former.

It proceeds upon a new theory of the right of the government to' tax and establish a new system of taxation. It taxes the right of succession to property, and measures the tax in the method specifically prescribed. All property having an appraisable value must be considered, whether it is such as might be taxed under the general law or not. Many kinds of property might be enumerated which are not assessable under the general law, but which are appraisable under the collateral inheritance act. The definition of the different kinds of property which the legislature has incorporated in the general tax law, for the purposes of that law, cannot be imported in to the collateral inheritance tax law upon any sound principle of statutory construction. It is, therefore, immaterial whether life insurance policies can be valued and assessed for taxation under the general law. The claim of the appellant that they cannot may be freely admitted without in anywise affecting the questions involved in this appeal. Nothing relative to the proper interpretation of the general tax law need be considered or determined, and the subject is only alluded to because of the prominence given it upon the appellants’ brief. Much stress is laid upon the conditional and uncertain character of the obligation created by a life insurance policy. But when the insured died the value of the policy became fixed, and it was presumably worth in cash its face value less a proper rebate for interest on the amount for the period during which payment might be deferred. The appellants cannot be heard to urge that the companies might have declared the policies forfeited, or successfully resisted payment for any cause. They did not do so, but promptly acknowledged their obligations, and paid the amount of the policies to the representative of the insured for distribution to the legatees who under the will and the law of the state were entitled to it;

The learned surrogate has very fully pointed out the incidents of property which these instruments possess, and his views, which have our<approval, are fortified by reference to many authorities.

The order must be affirmed, with costs.

All concur.


author: Gray, J.

text:
    The People, Resp’ts, v. Israel Adler, App’lt.

      (Court of Appeals,

      Filed December 12, 1893.)

    1. Criminal law—Indictment.
    Where the accusation is of the commission of a certain crime and the indictment sets forth two or more offenses of the same nature, based upon the same or a continuous set of facts either of which offenses makes him guilty of the same crime, the indictment is not demurrable.
    3. Same—Forgery.
    An indictment setting forth in one count the forgery of a written instrument, and in another the uttering of the said instrument on the .same date and at the same place, the crimes and degree of punishment being the same and the facts connected, is not within the inhibition of §§ 378 and 379 of the Code of Civil Procedure.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment of the Monroe court of sessions convicting defendant of the crime of forgery in the second degree.
    The defendant was accused by the grand jury of Monroe county of the crime of forgery in the second degree. The indictment contained two counts, the first of which set forth the forging, on April 12, 1892, at the city of Rochester, of the following written instrument, viz.:
    “ Rochester, H. Y., April 12,1892.
    “ The Central Bank pay to bearer two hundred dollars.
    “John G. Thien, Pres. Jas. L. Schmitt, Areas A

    The second count set forth the uttering, on the same date and at the same place, of the written instrument described in the first count. The defendant demurred to the indictment, alleging as one of the grounds of demurrer that two separate and distinct crimes were charged therein, in violation of §§ 278 and 279 of the Code of Criminal Procedure.
    The demurrer was overruled, and the defendant was required to plead. His trial in the court of sessions resulted in a conviction, and from the judgment of the general term affirming the judgment of conviction the defendant appeals to this court.

      Frank Cummings, for app’lt; George D. Forsyth, for resp’ts.

      Affirming 53 St. Rep., 936.

   Gray, J.

But one question is presented by this appeal, and that is whether this indictment was demurrable for charging more than one crime. Section 323 of the Code of Criminal Procedure authorizes a demurrer to an indictment when more than one crime is charged “ within the meaning of sections 278 and 279.” Section 278 provides that the indictment “ must charge but one crime and in one form, except as in the next section provided.” The next section (279) provides that “the crime may be charged in separate counts to have been committed in a different manner, or by different means.” The Penal Code, by § 511, provides that a person is guilty of forgery in the second degree, who forges an instrument or writing purporting to be the act of another, etc.; and,' by § 521, that a person, who utters a forged instrument or writing, the forging of which is punishable as forgery, is guilty of forgery in the same degree as if he had forged the same.

It is perfectly clear that to forge and to utter a forgery constitute separate and distinct offenses, but the question is whether when, as in this case, an indictment, charging the prisoner with the -crime of forgery in the second degree, sets forth the different means in different counts by which it was committed, it is not within the meaning of §§ 278 and 279. It would seem to be precisely within the exception provided by § 279 to the rule that but one crime must be charged in the indictment. If that is not a fair and rational construction of the section, then how are we to read it? The object of the indictment was to secure the punishment of the prisoner for the crime of forgery in the second degree, and, though technically it charged different felonies in the two counts, it was based upon a continuous transaction, of which forging and the putting out of the forged check were parts. Can it be pretended that the accused could have been embarrassed by having to plead to such an indictment, or that he was prejudiced by going to trial upon it? It is true that the two counts set forth offenses which were separately punishable, but the crimes and the degree of punishment were the same and the facts were connected. In framing the indictment so as in different counts to set forth the two parts of- the continuous transaction, it was intended, presumably, to meet the evidence which should be adduced upon the trial. Was it not the purpose of the legislature to permit that to be done ?

It was observed by Chancellor Walworth in Kane v. People, 8 Wend., 203, that "in point of law it is no objection that two or more offenses of the same nature, and upon which the same or a similar judgment may be given, are contained in different counts of the same indictment. But in People v. Rynders, 12 Wend., 425, we have a case precisely in point, and, if the practice has not been changed by the Code of Criminal Procedure, one which should be authoritative.

In People v. Rynders the indictment charged the defendant in certain counts with forging a check, and in subsequent counts with uttering the same as true. Objection'was made that two distinct offenses were charged, and a motion made to compel the public prosecutor to elect for which offense he would proceed. Savage, Ch. J., held that while it would be such an incongruity to incorporate in the same indictment offenses of a different nature, such as, for instance, a forgery and perjury, that the court would refuse to hear a trial upon both, yet where the offenses were of the same character, differing only in degree, as was the case there, then the prisoner ought to be tried on both charges at the same time.

At that day those offenses were not only distinct, but' were punished with different degrees of severity, and yet it was not deemed .to violate any principle of justice that they should be united in the indictment and in the trial. The prisoner might be convicted of one and not of the other offense.

The Bynders case was never questioned as an authority, .and was frequently referred to as authoritative down to the adoption of the Code of Criminal Procedure. In Hawker v. People, 75 N. Y., 487, it was said by Judge Earl that “ so long as the counts relate to the same transaction there can be no objection to the union of such counts in the same indictment." I do not think we should hold that the Code of Criminal Procedure has changed a procedure in framing indictments which was previously sanctioned, unless its, language compels us to do so.

Its enactment was in the direction of regulating and establishing criminal procedure in th¿ accusation and in the trial of persons for offenses specified in the statute. It was desirable to simplify the procedure and to make it plain and intelligible to the lay mind ; just as much so as it was desirable, by the enactment of a Penal Code, to define crimes in explicit and clear language. Its object was to promote substantial justice, in securing to the accused a fair trial upon an intelligible, accusation, and in preventing the escape of a guilty person through technicalities which were without merit, with respect to the procedure preliminary to or upon the trial. Its construction should be strict to preserve the substantial interest of the accused ; but it should be liberal where the interests of justice require it, and no vested rights of the accused are affected. It requires no argument to show that a prisoner has a substantial interest in being protected against several accusations in the indictment which send him to his trial charged with the commission of two or more crimes of an utterly different nature; but where the accusation is of the commission of a certain crime, and the indictment sets forth two or more offenses of the same nature, based upon the same or a continuous set of facts, either of which offenses make him guilty of the same crime, the prisoner cannot be prejudiced.

An observation of the learned judge who wrote in People v. Tower, 135 N. Y., 457 ; 48 St. Rep., 438, is much relied upon by the appellant, and may justify the doubt entertained in the court below. In that case the indictment, in a single count, charged the prisoner with forging a note and with uttering the same. It was urged that the indictment was bad for charging two distinct offenses in one count. There having been no demurrer, it was held to be too late to raise the objection upon a motion in arrest of judgment. The learned judge, referring to §§ 278 and 279 of the Code of Criminal Procedure, observed that “ under the Code it is, perhaps, doubtful whether the two offenses of forgery- and uttering the forged instrument could be properly united in the same indictment. The crimes are distinct, arising upon different acts, although each constitutes the offense of forgery in the second degree." Of course, the remark was unnecessary to the decision of the case at bar. But, giving to it the force it deserves as coming from so distinguished a jurist, its application would be to a similar state of facts. In other words, it would be a violation of the Code to unite two offenses in a single count of an indictment, as was the rule at common law in fact. In this case the question turns upon the sufficiency of an indictment which, in separate counts, charges the crime to have been committed in one manner or the other, and such a practice we think not to be within the inhibition of the statute.

The judgment should be affirmed.

All concur.


author: Follett, J.

text:
    Theodore Conkling et al., Resp’ts, v. Lizzie H. Zerega, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Contract—Awards nor taking land as between grantor and GRANTEE.
    While claims were being prosecuted against a city by the owners of certain land for the taking of portions thereof, an award was made, but before it was paid one of such owners contracted to convey her interest in the land, the contract containing the provision “ that, in case any awards are made for taking any portion of said property, then the party of the second part shall refund to the party of the first part one-third of the amount which shall be paid for damages to said premises, it being understood that the party of the first part is not to receive any portion of awards hereafter made. ” Held, that the grantor was not, by the terms of such contract, entitled to any portion of a reward thereafter made.
    Appeal from a judgment entered on a verdict rendered at a trial term by direction of the court.
    March 3, 1868, a part of the Bloomingdale road was closed by the board of commissioners of Central Park, pursuant to chapter 697 of the Laws of 1867. Adjacent to this road is a plot of ground known in this litigation as “ Block No. 1,267.” At about the same time, the date not appearing, part of the block was taken for the purpose of opening 110th street. The record does not definitely show who owned the fee of this block at the time the city closed Bloomingdale road and opened 110th street. It is alleged in the coSiplaint that for a number of years prior to May 10, 1871, Elizabeth M. Conkling owned the property, which allegation is not denied in the answer; but it is also alleged in the complaint, and not denied, that May 15, 1868, Elizabeth M. Conkling, Elizabeth P. Conkling Jonas E. Conkling, Luella S. Conkling, Thomas W. Conkling, and Lizzie H. Zerega mortgaged the property to William B. Astor. It is alleged and admitted that on May 10, 1871, Elizabeth M. Conkling, being seized of the fee, conveyed the premises to Thomas W. Conkling, Elizabeth P. Conkling and Lizzie H. Zerega, who became the owners thereof as tenants in common, each owning an undivided third interest. On the 17th of April, 1873, said three tenants in common entered into a contract with a firm of attorneys by which they were to prosecute the "claims of the owners for damages for one-third of the amount which might be collected. On the 3d of September, 1873, an award of $3,264 was made against the city, and in favor of Thomas W. Conkling, Elizabeth P. Conkling and Lizzie H. Zerega for the land taken for opening 110th street. On the 10th of January, 1874, Elizabeth P. Conkling contracted to sell and to convey, on the 20th of the same month, her third interest in the land to Lizzie H. Zerega, by an instrument which contained the following provision : “ And the said party of the second part hereby agrees that, in case * * * any awards are made by the city for taking away any portion of said property, then, in ■such an event, said party of the second part will refund to the party of thé first part * * * one-third amount which shall be paid for damages to said premises * * * less one-third of the expense of * * * obtaining such award; it being understood, however, that the party of the first part is not to receive any portion of awards hereafter made.” February 1, 1874, the award of September '3d was paid to, and divided between, Elizabeth P. Conkling, Thomas W. Conkling and Mrs. Zerega. On the 11th of November, 1876, Thomas W. Conkling and Lizzie H. Zerega, who were then the owners of the fee of the property, filed a petition with the board of assessors of the city of New York for the assessment of the damages caused to their property by closing the Bloomingdale road. In December, 1880, the damages were assessed, and on the 27th of April, 1883, they were paid to the petitioners; Mrs. Zerega receiving $2,074.64, two-thirds of the net amount realized from the award. Before this action was begun, Elizabeth P. Conkling had assigned all of her claims against the defendant to the plaintiffs, who brought this action to recover one-half of the amount received by Mrs. Zerega for closing Bloomingdale road, upon the theory that under the contract she became liable to pay Mrs. Conkling one-third of the ■damages awarded.

      Hathway & Montgomery (H. G. Atwater, of counsel), for app’lt; Abraham Gruber, for resp’ts.
   Follett, J.

The cause of action alleged in the complaint, and sought to be established on the trial, is that the defendant, by the clause quoted from the contract of January 10, 1874, became liable to pay to the plaintiffs’ assignor one-third of the damages awarded for closing Bloomingdale road. No other ground for the recovery of the sum for which the verdict was directed is stated in the complaint, nor was there any evidence given on the trial which tends to support, upon any other theory, the judgment. The sole question is, did the defendant become liable, under the clause quoted from the contract, to pay over any part of the damages awarded on account of the Bloomingdale road ? The language is not ambiguous, and it is provided, in clear terms, that the defendant should pay to the plaintiffs’ assignor one-third of all the sums which had been awarded, and in the concluding part of the clause it is expressly provided “ that the party of the first part, plaintiffs’ assignor, is not to receive any portion of awards hereafter made.” By this language the defendant became liable to pay over one-third of all awards then made, but she did not become liable to pay over any part of awards thereafter made. The defendant paid the third part of the award made before the execution of the contract, which terminated her liability under it. In the absence of an agreement to the contrary, the damages caused by closing the road belonged to the owner of the fee of the land at the date when the road was closed, which was March 3, 1868. King v. City of New York, 102 N. Y., 171. Who owned the fee at this date does not appear; but had it been shown that the plaintiffs’ assignor then owned one-third of it, or that she had received an assignment of an interest in the damages from the owner of the fee, the plaintiffs would not have been entitled to recover, because no such cause of action is alleged in the complaint, and for the further reason that, under the evidence contained in the record, the statute of limitations had run against a recovery on that ground. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., concurs.


author: Van Brunt, P. J.

text:
    The Grannis & Hurd Lumber Company, Resp’t, v. Richard Deeves, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Contract—Delay—Waiver.
    A builder who does not terminate a contract with a sub-contractor for the failure of the latter to complete his work within the specified time, is not prevented thereby from recovering, by way of counterclaim, damages for such delay.
    2. Same.
    Where a builder fails to complete in time work necessary to be done before a sub contractor could commence his work, he cannot complain because such sub-contractor failed to finish his work within the time specified in the contract.
    3. Same—Certificate of architect.
    Where a building contract provides that before the final payment he made the contractor must furnish the builder with the architect’s certificate as to the proper performance of the work, payment cannot he refused on the ground that the certificate has not been given, when the architect has certified that thé contractor was entitled to a settlement, hut without prejudice to any claim the builder might have for time lost or work not done.
    Appeal by defendant from judgment in favor of plaintiff for $9,204.67, entered upon report of a referee.
    Thornton, Earle & Kiendls (D. Thornton, of counsel), for app’lt; Billings & Cardozo (M. H. Cardozo, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to recover an alleged balance due to the plaintiff from the defendant for work done and materials furnished under certain contracts in connection with the building by the defendant of nine houses on West Eighty-second and Eighty-third streets in the city of New York, and for the value of certain extra work and materials furnished by the plaintiff to the defendant in and for said houses. The answer admitted the making of the contracts, but denied the performance thereof, and admitted the doing and performance of extra work, but denied the value thereof; and alleged payment for all work and extra work done by the plaintiff, and for all materials and extra materials furnished. It also set up a counterclaim for damages for the alleged failure to complete the work to be done under the contracts within the time therein stipulated, and also because the work done and materials furnished by the plaintiff were of inferior kind and quality. The issues raised by the pleadings having been referred to a referee, said referee reported in favor of the plaintiff, and from the judgment thereupon entered this appeal is taken.

The claim upon the part of the appellant is that the plaintiff did not substantially comply with the terms of the contracts and the plans and specifications, as found by the referee, and that the contracts were not only not completed within a reasonable time, but were not completed at all, and that the certificates required by the contracts were not furnished, and that the plaintiff delayed the work unnecessarily and unreasonably, and failed to do the work it did in a good and workmanlike manner, by which the defendant was damaged. In the consideration of these questions raised by the appellant we have been somewhat embarrassed by the fact that the referee has, in respect to some of the points raised in the case, taken an erroneous view of the law, and also seems, in his opinion, to have, in at least one respect, a different idea of the facts from that which is contained in his findings. Upon an examination of the opinion of the referee, it will appear that he states that it does not appear at any time while the work was in progress, either before or after the dates fixed by the contracts for completion, any complaint was made by the defendant that the contracts had not been performed within the periods fixed in the contracts. Upon examination of the findings it will be found that the referee finds “ that during the progress of the work under both contracts defendant continuously complained of the lack of material and men, and spoke to the foreman and superintendent of plaintiffs, and wrote to the plaintiffs thereof, and repeatedly requested the plaintiffs verbally and in writing to supply inore men, and send the material to the buildings being erected, and expressed dissatisfaction at the manner in which the plaintiffs were performing their work under the contracts.” The referee also seems to have been of opinion that, as the defendant allowed the work to proceed and be completed, he waived the strict performance of the contracts in regard to the time of completion; citing the cases of Smith v. Gugerty, 4 Barb., 614, and Gallagher v. Nichols, 60 N. Y., 438. hieither of these cases supports the view of the learned referee upon this point; but it will not be necessary to criticise them, as in the case of Dunn v. Steubing, 120 N. Y., 232 ; 30 St. Rep., 653, the rule is expressly recognized to be otherwise. Undoubtedly the defendant had the right to terminate the contract if the plaintiff was not proceeding with that diligence which the terms of the contracts required. But this was not his only remedy. He had a right to let the plaintiff go on and complete his work, and then he had the right to say: “ I will pay you for the work you have done, but I want the damages you have caused me in not doing my work as you agreed to do it.” In the case cited, upon the trial the learned court charged in the manner specified, and this charge was approved by the court of appeals; and all that was held was that although the defendant might have insisted on his strict legal rights, and upon failure to perform on the day fixed put an end to the contract, yet not having done this, but having permitted the plaintiff to continue his work, he could not then insist on the delay as a defense to an action brought to recover the price of the work, there being a great difference between availing himself of the delay of the plaintiff as a defense and the recovery of damages arising from such delay by way of counterclaim.

But in the case at bar the referee found that the delay in the performance of the work was caused by the failure of the defendant to complete work which was required to be done on his part before the work of the plaintiff could be commenced, and there was ample evidence in the case to sustain this finding; and if this was the condition of affairs, as is probably the case, then the defendant would have no ground for complaining of the delay. The claim upon the part of the defendant that the contracts were not substantially completed does not seem to have been well founded. By the arrangement between the parties the defendant caused to be completed certain omissions in the work done by the plaintiff, and he has been allowed the expense thereof. He never, until after all these transactions,-asserted the claim that he was not liable to pay any balance due upon the contracts because of the failure of the plaintiff to complete. The substantial dispute between the parties was as to alleged damages sustained by the delay, and also for certain other work which had been done by the defendant upon these houses. This work, in respect to which evidence was given, was certainly done upon the houses in question, but it does not appear that it was caused by original defects in construction. It may well have been caused by circumstances arising subsequent to the finishing of the houses by the plaintiff.

The claim, which seems to have been asserted for the first time upon the bringing of this suit, that the proper architect’s certificates were not furnished, cannot prevail. The architect certified that the plaintiff was entitled to a settlement, but, knowing that there was a controversy between the plaintiff and the defendant, added that such certificate was not intended to prejudice any claim the defendant might have for time lost, or work which the defendant had to do to carry out the terms of the contract. The architect by this certificate üid not intend to judge between the parties in reference to the claims of each, but intended to give such a certificate as would entitle the plaintiff to enforce its legal rights without prejudicing the defendant, if he was able to establish a condition of affairs different from what was supposed to exist. Under these circumstances, we see no reason for disturbing the judgment, and it should be affirmed, with costs.

Follett and Parker, JJ., concur.


author: Herrick, J.

text:
    Jennie Hochstrasser, App’lt, v. George B. Martin et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 6, 1893.)

    Nuisance—Charge.
    In an action to restrain a private nuisance and for damages, the condition of plaintiff’s property; how it is used and occupied, and whether its character is such that could be or was injured by the act complained of, are all circumstances to be considered by the jury in determining whether plaintiff has been injured, and hence a refusal to charge “ that the condition of plaintiff’s henery and privy are wholly immaterial in this case, except so far as they would reduce the rental value of the premises without the nuisance in question,” and a submission of the question whether it was a locality where a nuisance would be created by running a stable, is proper.
    Appeal from judgment in favor of defendants, entered upon verdict.
    Action to restrain defendants from maintaining a nuisance upon their premises, which are fifty feet from plaintiff’s, and for damages.
    Defendant Martin owned the premises in question, upon which was a barn, and had let the same to defendant Eaton. Plaintiff claimed and gave evidence to prove that a quantity of manure had been permitted to collect on the premises, and that when wagons were washed thereon the water ran down upon her premises and caused the same to be unhealthy and unfit for use. Defendants gave evidence tending to show that plaintiff’s henery and water closet were in bad condition.

      E. F. Bullard, for app’lt; Foley & Wing (John Foley, of counsel), for resp’ts.
   Herrick, J.

Substantially the only question raised upon this appeal is upon the refusal of the judge to charge “ that the condition of plaintiff’s henery and privy are wholly immaterial in this case, except so far as they would reduce the rental value of the premises without the nuisance in question,” and his charge, “ I shall refuse to charge in that regard and leave it to you, the jury, to consider as to the circumstances of the locality, and to say whether it was a locality where a nuisance would be created by running a stable.”

“A private nuisance is defined to be anything done to the hurt or annoyance of lands, tenements or hereditaments of another.” Heeg v. Licht, 80 N. Y., 579-82.

It is a material circumstance, therefore, in determining the question whether the thing is or is not a nuisance, for the jury to determine whether the plaintiff has been in fact hurt or injured, and it needs no argument, it seems to me, to show that the condition of the plaintiff’s property, how it is used and occupied, the character, kind and description of the property, whether the property was of that character, or so used, that it could be, or was injured by the act complained of, are all circumstances to be taken into consideration by the jury in determining the question whether or not the plaintiff has been in fact injured or hurt, whether in truth the act complained of is a nuisance; consequently, the locality, the character of the locality, the business there carried on, the liability to injury or damage to the people and property located and residing there, are material elements in determining whether a business is or is not a nuisance. Heeg v. Licht, supra.

It seems to me, therefore; that the court was correct in its charge, and its refusal to charge, and that the judgment should be affirmed. There is no occasion for an opinion.

Mayham, P. J., and Putnam, J., concur.


text:
    In the Matter of the Claim of George Clark for Damages for the Taking and Appropriating of Lands by the Water Commissioners of Amsterdam.

      (Supreme Court, General Term, Third Department,

      Filed December 6, 1893.)

    1. Eminent domain—Limitation—Laws 1882, chap. 197.
    The words " then, or at any time after,” in § 3 of chap. 197, Laws 1883, were not used as words extending the time within which land owners should commence their proceedings, but rather as words of permission, in the sense of immediately, forthwith or at once, and do not take proceedings under the act out of the statute of limitations.
    3. Same.
    The claimant’s land was taken in 1883, and this proceeding to recover compensation was commenced in 1893. Held, that the claim was barred by the statute of limitations.
    Appeal by the water commissioners of Amsterdam from order modifying and confirming an award of commissioners of appraisal

      Charles S. Nisbet, for app’lts; Smith & Nellis (Andrew J. Nellis, of counsel), for resp’t.
   Herrick, J.

This is an appeal by the Water Commissioners of Amsterdam from an order of the special term, confirming as modified an award of commissioners of appraisal.

The proceeding is a special one instituted by the petitioner Clark; under and by virtue of chapter 101 of the Laws of 1881, as amended by chapter 197 of the Laws of 1882. Under said acts, the Water Commissioners of Amsterdam are authorized to purchase and take land, and their proceedings in so doing are regulated by such statutes. It is conceded that the water commissioners took and appropriated this land in 1882, under and pursuant to the provisions of the aforesaid statutes, and have been using and occupying the property ever since.

The petitioner commenced his proceedings for compensation for the land so taken and used March 14, 1892. Commissioners of appraisal, or of assessment, to determine the damage sustained by the petitioner, were appointed. At the time of the appointment of such commissioners, the water commissioners set up the statute of limitations in opposition to their appointment; again, after such commissioners had been appointed by the court, and before the examination of the witnesses, the water commissioners again objected to such commission proceeding, upon the ground that the petitioner’s claim was barred bv the statute of limitations.

It is conceded that the petitioner’s claim to compensation accrued immediately upon the commission taking possession of the land in 1882, but the effect of the statute of limitations is sought to be avoided by the peculiar wording of § 5, chapter 197 of the Laws of 1882, which provides that in case the water commissioners shall fail to make an application to the court for the appointment of commissioners to determine the damage sustained by persons whose lands are taken “ before taking or using such lands and tenements, hereditaments, rights or property, then or at any time after the said commission shall take and use any such lands, etc., the owners of or parties interested in any such lands and tenements, hereditaments, rights or property, may, upon ten days’ notice, * - * apply to the court for the appointment of such commissioners.” ■

It is contended that the use of the words “ then or at any time after," takes these proceedings out of any and all statutes of limitation. Except for the use of these words, it is conceded that the petitioner’s claim would be barred by the six year statute of limitations.

It is the policy of our law, and the intention of the legislature by the different statutes of limitation, to fix a period of time beyond which no action or proceeding can be brought or maintained for any claim or demand, and the obvious intention is to apply such limitations to every action or proceeding to procure redress for wrong or injury, compensation for property or services, or payment of a debt of any kind or description ; and it has been held to be well settled law that no exception to a statute of limitations can be claimed unless it is expressly mentioned in such statute. Bucklin v. Ford, 5 Barb., 393 ; Levy v. Newman, 130 N. Y., 11; 40 St. Rep., 489.

While it may not be necessary that the exception to the statute should be set forth in the statute of limitations itself, as suggested in the case of Bucklin v. Ford, but may be contained in some other statute, yet, wherever contained, the exception should be expressly set forth in plain and unambiguous terms.

Where rights or remedies are given, or procedure to protect rights and enforce remedies are provided by special statute, and no express limitation is therein specified as to the time within which such rights or remedies are to be enforced, or such proceedings instituted, it will be deemed to be the time prescribed in the general statutes of limitation.

The words of this statute depended upon to take the case out of the statute of limitations I do not think sufficient for that purpose ; they are not sufficient to be an express exception of the petitioner’s claim, or of the proceedings under which it is sought to be enforced. The words “ then or at any time after," etc., I think were not used as words extending the time within which landowners should commence their proceedings, but were rather words of permission, and are used in the sense of immediately, forthwith, or at once; and are used for the purpose of indicating the earliest time at which they might commence their proceedings, and not for the purpose of removing any barrier of time beyond which proceedings could not be taken. The court will not assume, in the absence of a plain and unambiguous expression of the legislature to the contrary, that it intended to remove all limitation of time for the commencement of proceedings like these in question, where the general policy of the state is, as expressed in its statutes, to fix a time or times beyond which no actions or proceedings shall be commenced to procure the enforcement of any right or remedy.

For these reasons, I think that the plaintiff’s claim for compensation was barred by the statute of limitations, and that it was not excepted therefrom by any provision of the statute by virtue of' which these proceedings were instituted, and that the order appealed from should be reversed. Let an order be entered accordingly, with ten dollars costs, and printing and other disbursements.

Mayham, P. J., and Putnam, J., concur.


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    George P. Rider, App’lt, v. Elbert T. Rulison, Resp’t.

      (Supreme Court, General Term,, Third Department,

      Filed December 6, 1893.)

    Libel—Words having a tendency to disgrace.
    Defendant, in endeavoring to collect money claimed to be due him from, plaintiff, wrote to another concerning plaintiff that he was perfectly unreliable; that he could not tell the truth, and that any financial obligation did not seem to distress him in the least. Held, that these words had a tendency to hold plaintiff up to scorn, and bring him into ridicule and contempt, and as such were libelous per se, and that it was not necessary to either allege or prove special damage.
    Appeal from judgment in favor of defendant dismissing the: complaint.

      Arthur B. Rider, for app’lt; Howard Putnam, for resp’t.
   Herrick, J.

The plaintiff brings this action against the defendant for libel, charging defendant with writing two several letters of and concerning him, in which he made use of the following expressions: “ I know him ” (the plaintiff thereby meaning) “ to-be perfectly unreliable; ” “can’t tell the truth, and any financial obligation does not seem to distress him in the least. He has-been more than mean to me.” And again, in another letter: “ It seems he (thereby meaning the plaintiff) “ cares no more about his reputation now to pay than he ever did.” “In the meantime should he knock at the ‘ outer door ’ be careful about, admitting him. He is a plausible talker, but wholly unreliable.”

The writing of these letters by the defendant is admitted.

It appeared upon the trial that both the plaintiff and defendant were physicians, and that the plaintiff had been a student in the defendant’s office at one time, and that the defendant had loaned and advanced money to him; and, the plaintiff being in a distant state, the defendant had written the letters in endeavoring to collect what he claimed to be due him from the plaintiff.

In the view that I have taken of the case, it is unnecessary tosíate the facts more fully.

At the close of the plaintiff’s evidence the defendant’s counsel moved for a non suit on the ground that the plaintiff had failed to make a cause of action, “ for the reason that the words charged in the complaint, the words contained in- the letters which are in substance that 1 plaintiff is unreliable; ’ that he can’t tell the truth, and does not regard his financial obligations, are not libelous-per se, and inasmuch as they are not used in reference to the-plaintiff’s business or profession, and no proof of special damages given, plaintiff has failed to make out a case as to those words.”

The court granted the motion, and in doing so stated: “I do not think the words charged to have been written about the plaintiff are libelous per se. There is enough alleged in the complaint to make out a cause of action, but there is no proof to sustain it, namely, that he was injured in his business; therefore there is no damage shown, and I think the case is not made out.”

In this I think the court erred; any written or printed matter published of and concerning a person that has a tendency to disgrace such person and bring him into ridicule and contempt is libelous per se. Morey v. M. J. Assn., 123 N. Y., 207; 33 St. Rep., 49 ; Bergmann v. Jones, 94 N. Y., 51; Winchell v. Argus Company, 69 Hun, 354; 52 St. Rep., 790.

It seems to me that charging a man with being “perfectly unreliable,” that “ he cannot tell the truth ” and that “ any financial obligation does not seem to distress him in the least; ” “'that he has been more than mean to me,” is something that has a tendency to hold one up to scorn, and to bring one into ridicule and contempt and diminish his respectability, and as such is libelous per se, and being so it was not necessary to either allege or prove special damages. Winchell v. Argus Company, 69 Hun, 354-60; 52 St. Rep., 790.

For that reason, and for the error of the court in holding that such language was not actionable per se, the judgment should be reversed, and a new trial ordered, costs to abide the event.

Mayham, P. J., and Putnam, J., concur.


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    The People, App’lts, v. Albert Rockhill, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed, December 6, 1893.)

    1. Assault—Indictment.
    An indictment for assault in the first degree which charges that defendant at a specified time and place, feloniously and with intent to kill, assaulted, two persons named with a loaded fire-arm, and did discharge said loaded fire-arm toward and at said persons "and did thereby hit and seriously wound.said persons, contains a sufficient statement of the act constituting the crime within the meaning of § 275 of the Code of Criminal Procedure.
    2. Same—More than one crime.
    Although such indictment may charge two crimes, although only one-act was done, yet the imperfection in form in failing to charge them in separate counts, if any, was not such as to prejudice the defendant, and hence the indictment is sufficient under § 285.
    Appeal from judgment sustaining demurrer to indictment.

      Frederick G. Paddock, for app’lts; John P. Kellas, for resp’t.
   Herrick, J.

This is an appeal from a judgment of the court of sessions of the county of Franklin allowing a demurrer to the indictment against the defendant. Thé indictment is in the words, following:

Court of Oyer and Terminer.
The People of the State of New York,
vs.
Albert Bockhill.
“ The grand jury of the county of Franklin by this indictment accuse Albert Bockhill of the crime of assault in the first degree, committed as follows:
The said Albert Bockhill, on the 31st day of October, 1892, at the town of Bombay, in said county, did feloniously, and with intent to kill, assault Frank Mulvaney, and Fred Mulvaney with a loaded fire-arm in the hands of him, the said Albert Bockhill, and did discharge the said loaded fire-arm toward and at the said Frank and Fred Mulvaney and did thereby hit and seriously wound the said Frank and Fred Mulvaney.”

The defendant stated four grounds of demurrer as follows:

First. That the indictment does not conform substantially to the requirements of the sections two hundred and seventy-five and two hundred and seventy-six.
Second. That more than one crime is charged in the indictment within the meaning of sections two hundred and seventy-eight and two hundred and seventy-nine.
Third. That the facts do not constitute a crime.
Fourth. That the grand jury had no jurisdiction of the alleged offense."

Section 275 of the Code of Criminal Procedure requires that the indictment shall contain, first, the title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties; this the indictment does. It contains the title of the action, states who the indictment is against and specifies the name of the court, to which it is presented, “ The Court of Oyer and Terminer.”

Second. That the indictment shall contaiñ “ A plain and concise statement of the act constituting the crime, without unnecessary repetition.” The crime charged is an assault in the first degree. Section 217 defines an assault in the first degree to be when a person “ with intent to kill a human being or to commit a felony, upon the person or property of the one assaulted, or of another, assaults another with a loaded firearm or any other deadly weapon, or by other means or force likely to produce death.”

The. indictment charges that the defendant did, with intent to kill, assault Frank Mulvaney and Fred Mulvaney with a loaded firearm, and did discharge the loaded firearm toward and at the said Frank Mulvaney and Fred Mulvaney, and did thereby hit and seriously wound the said Frank Mulvaney and Fred Mulvaney.

This, it seems to me, contains a sufficient statement of the act which constitutes the crime. It is an allegation or statement of the crime substantially as defined by the Penal Code; it states the act which was done, that is, the discharge of the loaded firearm at the person in question, and it seems to me it contains a sufficient statement of the act constituting the crime to comply with § 275. If the indictment states the offense as the statute defines it, the averment is sufficient. Phelps v. People, 72 N. Y., 344-49; People v. Weldon, 111 id., 569-74 ; 20 St. Rep., 112.

Section 270, referred to in the demurrer, contains a form of indictment under the Code, and if I am right in my conclusions that the indictment sufficiently sets forth the act charged as constituting the crime, then this indictment complies in all respects with the form contained in § 276.

The third count of the demurrer, “ that the facts do not constitute a crime,” is answered in what has just been said as to the second count, for if it contains a plain and concise statement of the act constituting the crime, then the facts set forth constitute the crime charged.

The fourth count of the demurrer, “ that the grand jury had no jurisdiction of the alleged offense,” cannot be sustained.

The indictment purports to have been found by the grand jury of the county of Franklin; it states that the alleged crime was committed at a town in the county of Franklin, that it was committed prior to the time of the finding of the indictment, and of course no question can be raised but that the grand jury has jurisdiction to find indictments for assault in the first degree committed within the boundaries of the county for which the grand jury is acting.

The second count of the indictment, “ that more than one crime is charged” within the meaning of §§ 278 and 279, is more open to question. Section 278 provides: “That the indictment shall charge but one crime and in one form,” except as stated in § 279. Section 279 provides “ That the crime may be charged in separate counts to have been committed in a different manner, or by different means, and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.” In this case, while but one act is charged to have been done, yet that act is alleged to have been against two persons, and it may be said that although only act was done, that two crimes were committed. That it was a crime to discharge a firearm with the intent to kill Frank Mulvaney, and that it was a separate and distinct crime to discharge it with the intent of killing Fred Mulvaney, although there was but one discharge of the weapon, and that the intent to kill each should, under § 279, have been properly alleged in separate counts.

It will be observed that § 279 states that “ where the acts complained of may 'constitute different crimes, such crimes 'may be charged in separate counts.” It has been held that the word “may” in a statute under certain circumstances should be construed and read as must,” but other provisions of the Code in relation to indictments, I think, prohibit the use of the word “ may ” as “ must,” and render the ordinary, permissive meaning of the word to be the proper meaning to be given to it. Section 285 of the Code of Criminal Procedure provides that “no indictment is insuffieient, nor can the trial, judgment or other proceedings thereon be afEected by reason of an imperfection in matter of form which do.es not tend to the prejudice of the substantial rights of the defendant upon the merits.” Section 284 provides, among other things, “ that the indictment is sufficient where the act or omission charged as the crime is plainly and concisely set forth, is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the rights of the case.”

As we have seen, the act is plainly and concisely set forth, and it is stated with such a degree of certainty, as to when, where, and with what intent, and against whom it was directed, and by what means, as to enable the court to pronounce judgment upon a conviction; the imperfection in form charged, that is, that there should be two counts, one as to Frank and the other as to Fred Mulvaney, is such an imperfection, if it is such, as does not tend to prejudice the substantial rights of the defendant upon the merits, because he is notified as to the time and place when and where he is charged to have committed the crime, how he was charged to have committed it, and against whom ; so that he is fully apprised of the charge he has to meet. It is so stated that the record may be used by him in bar of a second trial for the same act, committed at the same time and place, against the same persons; these are his substantial rights, and all these are secured to him by the indictment in question. For these reasons I think the judgment of the court of sessions allowing the demurrer should be reversed. Let judgment be entered accordingly.

Mayham, P. J., and Putnam, J., concur.


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    In the Matter of the Final Accounting of Edward J. Maxwell, Assignee of John Reddish.

      (Supreme Court, General Term, Third Department,

      Filed December 6, 1893.)

    1. Appeal—Assignment fob cbeditobs.
    "Where an assignee for creditors takes an appeal from a decree on his accounting to which all the creditors as to the allowance of whose claims he proposes to object are made parties, he cannot subsequently separate them by failing to serve notice on some of them and subsequently appeal as to the ones not so served.
    2. Same.
    Where the assignee is also an attorney and as such has presented claims of creditors against the estate to the referee, he cannot appeal from a decree in their favor.
    Motion to dismiss appeal.

      Westbrook & Borst (Z. S. Westbrook, of counsel), for motion J Edward J. Maxwell, opposed.
   Herrick, J.

This is a motion to dismiss the appeal of Edward J. Maxwell, and strike the case from the calendar of this court.

On the 19th day of October, 1891, a decree was made by the county judge of Montgomery county, stating the account of Edward J. Maxwell, as assignee, charging him with the receipt of certain assets and directing the payment of certain claims.

On the 6th day of November, 1891, he gave notice of an appeal directed among other things to Daniel M. Beddish and Henry E. Beddish, creditors, wherein he gives notice that he appeals “from So much of the decree and judgment herein as adjudges and decrees that said assignee be charged upon the accounting with the-sum of $4,757.39, and directs said assignee to distribute the sum of $2,496.67, as specified in said decree, as follows, viz:

“ To Daniel M. Beddish the sum of $291.10.
“ To the First National Bank of Amsterdam the sum of $967.02.
“ To Henry E. Beddish the sum of $307.89.
“Also from so much of said decree and judgment as confirms the reports of H. L. Huston, the referee appointed to take and state the account herein.”

This appeal was brought on for argument before this court, and the decree and j udgment thereon affirmed. 66 Hun, 151; 49 St. Rep., 154.

The notice of this appeal does not appear to have been served upon either of the Beddishes; the respondent, also appellant, appearing being the First National Bank of Amsterdam, a creditor ■of Maxwell, assignee.

Subsequently the appellant, Maxwell, by a paper dated August 21, 1893, directed to Westbrook & Borst, as attorneys for Henry E. Beddish and Daniel M. Beddish, and to Henry E. Bed-dish and Daniel M. Beddish personally, gave notice that he appealed “from so much of the judgment and decree in the above entitled matter entered, herein«on the 19th day of October, 1891, as directs the payment to the said Henry E. Beddish of the sum of $742.13 in the aggregate, and to the said Daniel M. Beddish the sum of $291.10, and as confirms the reports of the referee on the accounting herein, and also to so much of the said decree ag charges said appellant with.the sum of $753.34, value of certain wool specified in said decree, and with seventy dollars, value of buggv."

From this it will be seen that both appeals are from the same judgment and decree, and that all the parties hereto were parties to such decree, and those who were named in and made parties to this second appeal were named in and made parties to the first appeal, although not served with notice of the first appeal.

The propriety of the referee’s findings were passed upon when these proceedings were first before this court, and the amount that the assignee should be charged with was investigated, and the referee’s report confirmed.

It is not tolerable to permit an assignee to take separate appeals as to each of the creditors of the estate; the decree made covers all the claims against the estate; all the creditors were parties to it, and all the creditors as to the állowance of whose claims the assignee proposed to object were proper and necessary parties to the appeal; he made them such parties in his first appeal, and he cannot subsequently separate them, and bring the case of some of them before the court at one time, as one case and one appeal, and the others before the court at another time, as another case and another appeal, and vex the court by unnecessary litigation.

It'is one decree and judgment that has been appealed from, and upon that the appellant has been heard; a rehearing cannot be granted by bringing-the case up again as to other parties, who were not brought into court because of the appellant’s own act, although formally made parties to the appeal.

. The appellant Maxwell is an attorney and counsellor of this court, and in the proceedings before the referee it appears from the moving papers herein, and is admitted by him, that lie represented the creditors Henry E. Reddish and Daniel M. Reddish, and presented their claims against the estate of which he was the assignee to the referee, and that in such proceedings they had no other representative or attorney but him. The impropriety of the assignee acting as attorney for creditors of the estate must be obvious to any one, but, having so acted, it would be intolerable to permit him to appeal from a decision in their favor, which chances in its ultimate result to affect him pecuniarily. If it affected other creditors of the estate, it is possible that sucjh other creditors would have a sufficient ground of appeal from the very fact that the assignee has appeared as attorney for the Reddishes in such proceedings, but he cannot be permitted to apply for such relief.

The appeal is dismissed, the case stricken from the calendar of this court, with ten dollars costs of motion.

Mayham, P. J., and Putnam, J., concur.


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    Sylvester Stay, App’lt, v. Charles V. Du Bois, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 6, 1893.)

    Civil bights—Dismissal of complaint.
    In an action against a theatrical manager for refusing admission to plaintiff, who was a colored man, the evidence as to the reason of the exclusion was conflicting, and defendant claimed that he did not have control of the admissions, the company performing having charge of the hall on that evening, and testified that he requested the door-keeper to admit the plaintiff. The court dismissed the complaint on the ground that defendant did not control the door-keeper and was not responsible for his acts. Held, error; that the questions whether defendant had released his control of the theater for that evening and whether he asked the doorkeeper to admit plaintiff depended on the testimony of defendant alone and on the question of his veracity, and on these questions plaintiff had a right to go to the jury.
    Appeal from judgment in favor of defendant, entered upon order dismissing the complaint.

      G. D. B. Hasbrouck, for app’lt; Brinnier & Newcomb (A. S. Newcomb, of counsel), for resp’t.
   Herrick, J.

The plaintiff brings this action against the defendant, who is the lessee of an opera house in the city of Kingston, alleging that he purchased tickets for himself and wife to attend a theatrical performance at such opera house; that on preseating himself for admission he was refused seats therein by reason of his being a colored man.

* Upon the trial there was a conflict of evidence as to the reason of his exclusion ; the defendant also claimed that he did not have control of the admissions, and that in pursuance of a contract with the company giving the performance, such company had charge of the hall that evening; and the defendant further stated that he requested the door-keeper to admit the plaintiff.

At the close of the evidence the court dismissed the complaint, saying: “ I am inclined to dismiss the complaint, on the ground that no matter what relation existed between the Tuxedo Company and the defendant, he (Du Bois) requested the manager to admit the plaintiff, which was refused. I do not know as he ought to be responsible for the wrotig done that evening.”

From which ruling the plaintiff excepted, and asked that he might go to the jury upon the question as to whether the defendant was responsible for the act of the doorkeeper, and as to whether the plaintiff was excluded from tire opera house by Mr. Du Bois, and also upon the question of fact connected with this contract between Du Bois and this company, upon the ground that certain testimony which Mr. Du Bois has sworn to in the case had been contradicted by two witnesses of veracity, and on the veracity of Mr. Du Bois and upon all the facts at issue in the case.

The court refused to permit the plaintiff to go to the jury upon such questions, and stated: “ The point upon which I dismiss the complaint is, it seems to me that the defendant did not control the doorkeeper, and was not responsible'for his acts.”

If the plaintiff was excluded from the theatre because of his color, it was in violation of § 383 of the Penal Code of the state. By that the duty was imposed upon the defendant, as the one conducting the opera house, to grant to the plaintiff the same privileges as were granted to all other citizens; and for neglect or breach of that duty, as to the plaintiff, he has a right of action, although it may be also punished criminally.

“ When a statute imposes a duty upon a public officer, it is well settled that any person having a special interest in the performance thereof may sue for a breach thereof causing him damage, and the same is true of the duty imposed by statute upon any citizen.” Willy v. Mulledy, 78 N. Y., 310-14; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec., 458.

The question whether the defendant had released his control over the opera house for the evening in question, and whether he asked the doorkeeper to admit the plaintiff, are questions that depend upon the testimony of the defendant alone, and upon the question of his veracity; upon these questions the plaintiff had a right to go to the jury. Bookheim v. Alexander, 46 St. Rep., 200, and cases cited.

I think, therefore, the trial court erred in dismissing the complaint, and that the judgment entered thereon should be reversed, and a new trial granted, with costs to abide the event.

Mayham, P. J., and Putnam, J.,- concur.


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    The People, Resp’ts, v. James A. McPherson, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 6, 1893.)
    Criminal law—Trial.
    A criminal case cannot be partly tried before one magistrate and partly before another. When the trial of a case is once commenced, it must proceed to the end before the same court and jury.
    Appeal from judgment of the court of sessions of Rensselaer county, affirming a judgment of the assistant police magistrate of the city of Troy, convicting the defendant of the crime of petit larceny.

      King & Speck (Henry A. King, of counsel), for app’lt; John P. Kelly, district attorney (Thomas S. Fagan, of counsel), for resp’t.
   Herrick, J.

This is an appeal by the defendant from a judgment of the court of sessions of Rensselaer county, affirming a judgment rendered by Cornelius Hannan, an assistant police magistrate of the city of Troy, Rensselaer county, convicting the defendant of the crime of petit larceny and imposing a fine of twenty-five dollars. The defendant was arrested upon a warrant issued by William Donohue, a police magistrate of the city of Troy. The prisoner was arraigned and demanded a trial by jury on tiie 9th day of February, 1893. The trial was commenced before the said William Donohue, as police magistrate, and five jurors were drawn, and the defendant by his counsel then and there agreed in open court that the case might be tried with five jurors so drawn.

The case was thereupon opened upon the part of the People, and at the conclusion of such opening the counsel for the defendant moved for the discharge of the prisoner upon the ground that the facts stated in the opening of counsel for the People would not warrant a conviction of the defendant for the crime charged; this motion was denied, whereupon the court was adjourned until the next day, February 10th.

February 10th Assistant Police Magistrate Hannan presided, and at that time, amongst other things, the defendant stated by counsel that they waived the right of trial by jury on the ground that there were not a sufficient number of jurors drawn to try de-' fendant, and then and there announced by his counsel that they had no right to make any stipulation in a criminal action for the defendant or on his behalf.

The waiver of the trial by jury for the defendant was denied and the trial proceeded before Justice Hannan and the jury of five theretofore drawn, and resulted in the conviction of the defendant. A number of questions are raised upon this appeal by the defendant, both upon the evidence, the rulings of the court, and upon the absence of any information upon which the warrant was alleged to have been issued. I do not think it is necessary to'discuss any of them.

The trial of the case was commenced before one justice and concluded before another.

The selecting'of the jury, the opening of the case upon the part of the People, and the motion to dismiss made on the behalf of the •defendant at the conclusion of such opening, were very important parts of the trial, just as much as any of the subsequent proceedings. It seems to me too clear to need argument, or citation of authority to sustain the proposition, that a criminal case cannot be partly tried before one magistrate, and partly before another. When the trial of a case is once commenced, it must proceed to the end before the same court and jury.

Judgment of conviction should be reversed and the defendant discharged. Let an order be entered accordingly.

Mayham, P. J., and Putnam, J., concur.