text:
    August Granz, Resp’t, v. Louis Lichtenhein, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Contract—Construction.
    A contract, by which defendant agrees to employ plaintiff in his mill at a certain rate of compensation, entitles the.latter to compensation under the contract only while engaged in the duties of his employment; and, where it becomes expedient for him to absent himself from the state for a time, during which he renders no services, he is not entitled to the compensation named in the contract.
    Appeal from a judgment in favor of plaintiff.

      Charles'S. Nisbet (Matthew Hale, of counsel), for app’lt; Book & Stewart (Edward P. White, of counsel), for resp’t.
   Putnam, J.

It was conceded on the trial that in July, 1892, defendant entered into a contract with the plaintiff for the employment of the latter and his wife at defendant’s mill in Amsterdam, N. Y., at $20 per week for plaintiff, and $15 for his wife, plaintiff to first go to Europe, and perform services for defendant -there, while his wife should at once enter on her employment at the mill. Plaintiff claimed that, under the contract, the $20 per week should be paid while he was abroad in addition to his expenses ; while defendant insisted that the $20 was only to commence when plaintiff began work at the mill, and while in Europe defendant was only to pay his expenses. Plaintiff also insisted that, from the date of the contract, wages were to be paid himself and wife at the rate of $35 per week, whether defendant’s mill was or was not running.

It is not clear from the testimony of plaintiff and his wife and the conversations between the parties in July, 1892, as related by them, what the understanding was as to plaintiff’s receiving compensation besides his expenses while in Europe. But plaintiff, as a witness, testified to a conversation between defendant and himself on the 19th day of November, 1892, after his return from Europe; that defendant then said:

“‘You will have to take the midnight train, and go to New York, and wait for the machinery, and look for a machine to make a point like that.’ I didn’t like to go back to New York. Isays : ‘ Who will pay for this time ? ’ He says : ‘ You will get your money for this time, when you started for Germany.’ I said: ‘ The 23d July, 1892 ? ’ He says: ‘ From this time you will get.your wages,—from the 23d July. I pay your wife $15 a week, and you $20, and you get your wages from that time.’ He says: ‘When you go to my uncle, Boscoits, tell him that is all right, and ask him every time for instructions.’ ”

The above-quoted testimony made it appear that defendant then ■ admitted that plaintiff and his wife were to receive $35 per week from the 23d day of July, 1892, to the date of the conversation. The jury saw plaintiff on the stand as a witness, and heard him testify, and also saw and heard defendant, who contradicted him, and evidently believed the statement of the former. We could not properly, in such a case, set aside the verdict of the jury, although defendant’s statement of the transaction seems to be corroborated by facts in the case which will be afterwards considered. On this admission of the defendant, the jury, crediting the statement made by the plaintiff, could find that the latter was entitled' to $20' per week when in Europe, and also when he went to and remained in New York, in pursuance of defendant’s instructions, and until November 25, 1892, when he went to Philadelphia. If the jury had only found for the plaintiff weekly compensation for services claimed between July 23 and November 25, 1892, the-evidence would have sustained the verdict. Plaintiff went to Philadelphia on November 25, 1892, and remained there until April 27, 1893,—a period of about five months. He then came to New York, and remained until June. In June he went to Amsterdam, but did not commence work until August 15th. He was thus unemployed for about nine months. He claims for this period $20 per week.

It may be inferred from the evidence that defendant and plaintiff—the one as principal, and the other as agent—had violated the statute of the United States in regard to importing foreign laborers, and hence, when the plaintiff went to Philadelphia, it was desirable to have him without the state. The jury could have found from the evidence that he went to Philadelphia at the request of the defendant, and that the latter paid his expenses while there. It is evident that plaintiff performed no actual services for defendant during the time he was in Philadelphia, or before his employment in defendant’s mill, in August, 1893. Was plaintiff entitled to recover of defendant $20 per week for the five months he was in Philadelphia, and for the time he was afterwards in New York and at Amsterdam, before he commenced work in August, 1893 ? He was not, under the provisions of the contract of employment of July, 1892. Assuming that the terms of that contract were as claimed by plaintiff, there was no provision in it under which the latter can recover for the nine months he was thus unemployed. Under the contract, he was to go to Europe, and, on returning, enter defendant’s mill as foreman. After he returned from Europe, a state of facts evidently arose, not contemplated by the parties when the contract was made, which rendered it necessary or desirable for the plaintiff to leave the state ; and he, at the request of the defendant, or by mutual agreement of the parties, left and remained without the state for five months, and, for several months in addition, performed no services for defendant. The parties, thus, by consent, abandoned or suspended the operation of the contract, and entered into a new agreement. Under the old contract, the plaintiff, on his return from Europe, was to perform services as foreman for defendant in his mill, at $20 per week, and, I infer, board and maintain himself. Under the new ■agreement, the defendant paid plaintiff’s expenses at an hotel in Philadelphia, the latter performing no services for the defendant. Under the original contract, defendant had not agreed to pay plaintiff $20 a week and his expenses while sojourning in Philadelphia, on his return from Europe. The contract did not cover such a case. Plaintiff was in Philadelphia under a new •arrangement or agreement, made on the 25th day of November, 1892.

Nor do we think that, under the circumstances of this case, the law will presume a contract on the part of defendant to pay plaintiff for his time in Philadelphia, and during the nine months in ■question, at the rate he had agreed to pay for his services as foreman. Doubtless, if plaintiff, although under the contract employed to work for defendant as foreman at his mill, had been put at some other place and at some other work, nothing being .said as to wages, a presumption would have arisen that he was working at the wages fixed by the contract. But in this case we think no such presumption could arise. Plaintiff, during the time in question, was not in defendant’s employment. It was not a ■case where he continued at work for defendant under the contract of July, 1892, the character of the work being changed by consent. The evidence shows that the performance of the contract of July, 1892, was entirely suspended or abandoned while plaintiff was in Philadelphia, and during the period afterwards, until the commencement of work for defendant, and that he was then under a new arrangement, which must determine whether he was entitled to compensation, and, if so, what. As there was no presumption that plaintiff, when absent from defendant’s services from the mill, during the nine months in question, was employed under the original contract, or entitled to compensation therein reserved, there was no satisfactory evidence showing that defendant agreed to pay plaintiff for his time during that period. It was not shown that Boscoits was authorized by defendant to make any contract as to plaintiff’s compensation. Boscoits was only authorized to direct his movements. The testimony of plaintiff’s wife to the effect that defendant said, before plaintiff returned to the mill, that he (plaintiff) “would get pay for that time,’’ does not show that defendant had entered into any contract with plaintiff that could make the former legally liable to pay plaintiff for his time while thus unemployed. If we assume, however, that defendant was to pay plaintiff a salary during the time in question, it does not follow that he was entitled to the same rate of compensation as fixed in the original contract. Because defendant agreed to pay him $20 per week for services .as foreman in his mill, the law will not imply a contract to pay him the same price while he was boarding him at an hotel in Philadelphia, and while plaintiff was performing no services. The law possibly, under the circumstances, might imply a contract to pay him who\ his services were worth.

We conclude, therefore, that the contract of employment between the parties made in July, 1892, did not authorize a recovery for plaintiff’s time while unemployed in Philadelphia and New York; that no presumption arose that plaintiff, while so unemployed, was to receive that compensation fixed by the contract; that plaintiff’s sojourn in Philadelphia and New York after his return from Europe must be deemed a suspension or abandonment of the contract under a new arrangement, which must determine whether or not plaintiff was entitled to wages, and, if so, what We also think that there was no satisfactory evidence to show that defendant agreed to pay plaintiff for his time while unemployed in Philadelphia and New York. If the testimony of plaintiff’s wife as to the admission of defendant that plaintiff “would get pay for his time” should be deemed some evidence of such agreement, there is other testimony in the case so strongly corroborating the testimony of defendant in this regard that we think a finding that there was such an agreement against the weight of the evidence. It was shown that the plaintiff, after he returned from Europe, during the five months he was in Philadelphia and the four months after he returned from the latter place, and before he commenced work at defendant’s mill, never asserted a claim to be paid for services. In August, 1893, he borrowed $40 of defendant, which was afterwards repaid. It is highly improbable that, if plaintiff was entitled to wages for twelve months before he commenced labor as foreman in defendant’s mill, he would have allowed the whole time to pass over without making a demand for compensation, and, after the lapse of a year, borrow $40 of a party who owed him over $1,000. We think this most significant fact so corroborates the testimony of defendant as to render it a proper case to set aside the verdict of the jury, as against the preponderance of the evidence, under the doctrine laid down in Bagley v. Bowe, 105 N. Y. 171-179 ; 6 St. Rep. 842, and kindred cases. Had the jury onljr found in favor of the plaintiff for the recovery of the $20 per week up to November 25 th, the verdict would not be disturbed, because plaintiff testified to a clear admission of defendant of an agreement to compensate plaintiff at the rate of $20 per week up to that time, and the jury were authorized to believe his statement. But as to plaintiff’s time after November 25, 1892, there was no admission of defendant. Plaintiff was not then employed under the contract of July, 1892. Nor was there any promise of defendant to pay for such time satisfactorily shown. And the testimony of defendant, corroborated as above suggested, rendered it highly probable that the parties did not understand, under the new agreement, that plaintiff was to be paid for his time while in Philadelphia, and afterwards while he remained unemployed. The acts of plaintiff indicate that there was no such agreement. The plaintiff also-recovered for the services of his wife during the time defendant’s mill was not in operation. Her testimony, on which the verdict was obtained, was contradicted by that of defendant. "We think the action of the plaintiff’s wife in receiving for over a year, without objection, payments for her services, without making any claim for compensation for time while the mill was not running, also in receiving pay for overtime, and consenting to a reduction for working short hours (sometimes receiving less than $15 per week, and sometimes more for overwork), so corroborates the evidence of defendant that the verdict must be deemed against the weight of the evidence in the regard. It follows that the judgment should be reversed, and a new trial granted; costs to abide the event.

All concur.


source: Caselaw Access Project

author: Cullen, J.

license: Public Domain

text:
    William Albrecht, App’lt, v. Queens County et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    County—Liability.
    A county is not liable for the negligence of the board of supervisors in failing to maintain a bridge in a reasonably safe condition for public travel.
    Appeal from an order, sustaining a demurrer to the complaint.
    The opinion of Mr. Justice Bartlett on sustaining the demurrer is as follows:
    The only question argued upon the demurrer is whether a county, whose board of supervisors is charged by law with the duty of providing for the care, maintenance, and repair of a bridge, is liable for negligence in allowing the bridge to become out of repair. Under the decision of the court of appeals in the case of People ex rel. Keene v. Board of Sup'rs of Queens Bo., 142 N. Y. 271; 58 St. Rep. 580, it is quite clear that the county law imposed upon the board of supervisors of Queens county the duty of keeping in repair the bridge described in the complaint, upon which the plaintiff was injured. In behalf of the plaintiff, it is argued that a failure to fulfill this obligation renders the board of supervisors of each county liable, and consequently each county itself, inasmuch as the county law now expressly declares a county to be a municipal corporation, and provides that an action may be brought against a county in its own name to recover damages for any injury for which it is liable. Laws 1892, c. 686, §§ 2, 3.
    I am unable to see, however, how the position of a plaintiff in such a case as this has been aided by the enactment of the county law, or how his position is substantially different from what it would have been prior to that statute. It will be observed that the county can be sued in its own name only to recover damages from an injury “for which it is liable;” so that we come back to the question whether it is liable for such an injury as that set out in the complaint. Does the mere fact that the duty of care and

      repair is cast upon the board of supervisors make either the board or the county liable for a negligent failure to fulfill the duty imposed ? This question is answered in the negative by two cases cited in behalf of the demurring defendaht. Ensign v. Supervisors, 25 Hun, 20; Alamango v. Supervisors, id. 551. The first of these cases was an action growing out of injury to the plaintiff by reason of defects in a bridge over the Genesee river, which it was the duty of the county of Livingston to keep in repair. The general term of the third department said that they had not been referred to a case, and were not aware of ode, in which an action of that kind had been maintained against a county or town unless the right of action was expressly given by statute. The fact that there was no precedent for such a suit was declared to be strong evidence that no right of action existed. The court referred to the cases in which actions against municipal corporations may be maintained for negligence in respect to some ministerial duty imposed upon them by their charters, and pointed out that there is a distinction in this regard “between municipal corporations created by charter, and vested by the government with a portion of its sovereign power for their peculiar benefit, and counties and towns which, like assembly and senatorial districts, are mere political divisions, organized for the convenient exercises of portions of the political power of the state.” I do not think that the declaration in the county law that the county is a municipal corporation has really effected any legal change in the character of counties, so as to make them resemble the chartered municipalities, to which reference is thus made in the Ensign case. The counties remain, just as before, “mere political divisions, organized for the convenient exercise of portions of the political power of the state.” In the Alamango case the plaintiff attempted to make the supervisors of the county of Albany liable for the action of the authorities of the Albany penitentiary in unlawfully putting him at work under a circular saw. The general term of the third department held that there was no liability on the part of the supervisors, and sustained a demurrer to the complaint. “The duty of punishing criminals,” said Mr. Justice Bumsey, “is inherent in the sovereign power. It may be committed to agencies selected for that purpose; but such agencies, while engaged in that duty, stand so far in the place of the state, and exercise its political authority, and do not act in any private capacity. It is so in the laying out and maintaining of highways, the building of courthouses and schoolhouses, as well as in the building of jails and places of detention. In the performance of all such duties it is settled by the unanimous agreement of the courts that these agencies are not liable for neglect or misfeasance, unless the liability is especially imposed by statute.” It is conceded that there is no statute which makes either the county of Queens or its board of supervisors expressly liable for injuries due to neglect in not properly caring for and repairing bridges. In absence of any such enactment, and in view of the authorities cited, I think the demurrer is well pleaded, and the defendant is entitled to judgment. Judgment for the demurring defendant, with costs.
    Dailey, Bell & Crane, for app’lt; F. H. Van Vechten, for resp’t.
   Cullen, J.

This is an appeal from an order sustaining a demurrer to the plaintiff’s complaint. Theaction is to recover for personal in j uries sustained by the plaintiff in the falling of a bridge across Newtown creek, between the counties of Queens and Kings. The complaint alleged that it was the duty of the boards of supervisors of the two counties to maintain the bridge, and that the injury happened from the negligence of such boards in failing to maintain the bridge reasonably safe and secure for public travel. The question presented is whether the county is liable for the negligence of the board of supervisors in failing to discharge this duty. The opinion of the learned trial judge on sustaining the demurrer, in which we concur, leaves but little to be added by us. It is practically conceded by the counsel for the appellant that, prior to the enactment of the county law (Laws 1892, c. 686), no liability rested on the county for the malfeasance of the supervisors of the county officers. The same rule applied to towns. Towns in this state were not liable for failure to keep the highways in repair until the statute of 1885, and that statute created liability only in such cases as the commissioners of highways would have been personally liable in case of an action against them individually,—a very different liability from that imposed on cities and villages. Lane v. Town of Hancock, 142 N. Y. 510 ; 60 St. Rep. 112. The theory on which cities and villages were first held liable for defects in highways is stated in Conrad v. Trustees of Ithaca, 16 N. Y. 158, and Weet v. Village of Brochport Id. 161, note. It is not merely that they are corporations, but that they obtain, upon the request of their citizens, valuable fran, chises, and that, in consideration therefor; they undertake to perform with jidelity their charter obligation. This may be a fiction, as the legislature cannot incorporate a city without the consent of the inhabitants; but, nevertheless, the principle is too well settled in the law to be ignored. This principle is not applicable to counties which, while the statute may make them municipal corporations, are something more than such. They are political division's of the state, so recognized in the constitution, and beyond the power of the legislature to abrogate. The state, doubtless, can impose upon counties liability for neglect of county officers to perform local duties. But we think no such intent should be inferred from the mere fact that, in a general revision of law relating to counties, they are declared to be municipal corporations.

There is a further objection to the maintenance of this action,— there has been no audit of the plaintiff’s claim. From the earliest period in the history of the state to the present, it has been necessary to present claims against the county to the board of supervisors for audit. With some unimportant exceptions, dependent on special statutes, or where the claim was liquidated by the existence of a county obligation for a specific sum, suits could not be main■tained against the county for claims or county charges. The remedy was mandamus to the board of supervisors. If the claim was fixed by law, so as to involve no discretion, a mandamus would lie to audit it at a specific amount. If the claim required the exercise of discretion or judgment, the audit was conclusive, unless reversed on review, and could not be attacked collaterally. Osterhoudt v. Rigney, 98 N. Y. 222; Supervisors v. Briggs, 2 Denio, 26 ; People ex rel. Johnson v. Supervisors of Delaware Co., 45 N. Y. 196; People ex rel. Myers v. Barnes, 114 id. 317 ; 22 St. Rep. 164 and 23 id. 795. By subdivision 2, § 12, of the county act, the same power is still vested in the board of supervisors to annually audit all accounts against the county. If the plaintiff has a claim against the county, it must be submitted to the board of supervisors. The order appealed from should be affirmed, with costs and disbursements.

All concur.


author: Per Curiam.

text:
    Owen Briardy, App’lt, v. Queens County et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Appeal from a judgment dismissing the complaint.

      Grout, De Fere & Mayer, for app’lt; George F. Elliott, for resp’t Kings county ; Francis H. Van Vechten, for resp’t Queens county.
   Per Curiam.

The judgment appealed from should be affirmed, with costs and disbursements, on opinion in Albrecht v. Queens Co., 65 St. Rep. 658.


author: Merwin, J.

text:
    John B. Kincaid, Resp’t, v. Charlotte Kincaid, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Statute of frauds—Specific performance.
    A verbal agreement by defendant, though an infant, to execute to plaintiff a life lease of property purchased by the latter from a third person and conveyed to the former, will be specifically enforced, where the infant, on attaining her majority, assumes control of the land, but refuses to perform her contract.
    Appeal from a judgment in favor of plaintiff,

      Rogers & Atwell, for app’lt; Bradley Winslow, for resp’t.
   Merwin, J.

The appeal in this case is heard on the judgment roll alone, so that the question is whether, in any view of the facts found, the judgment for the plaintiff was properly ordered. Agricultural Insurance Co. v. Barnard, 96 N. Y. 525. The facts as found by the special term are substantially as follows : The appellant is the daughter of the plaintiff, and was born on the 4th June, 1871. On the 18th August, 1890. the plaintiff agreed with one Taylor for the purchase of a farm of about 150 acres and some personal property, the consideration to be paid for the real estate being the sum of $6,000, and for the personal property $500. Both these sums the plaintiff paid to Taylor from his own funds, and Taylor, at plaintiff’s request, conveyed the farm by a warranty deed to the appellant. The deed, when executed, was delivered to one Thompson, by whom it was prepared, who, at the request of plaintiff, procured the same to be properly recorded on the 25th August, 1890, and since it was recorded it has been in the possession of the plaintiff. Contemporary with the execution and delivery of the deed by Taylor, the plaintiff and the appellant “ made an agreement one with the other, whereby, in consideration of the purchase by the plaintiff of said farm, and its conveyance to her, she would execute and deliver to the plaintiff a life lease of the same.”» This agreement was not in writing.. After the execution of the deed the plaintiff managed the farm up to December 1, 1892, and had a portion of the avails. At that date the appellant assumed control of the farm, and has since then deprived the plaintiff of' all control over it, and has excluded him from the enjoyment of the rents and profits, and of all interest therein, and before the commencement of this suit refused, upon proper demand, to execute to the plaintiff a life lease. No fraud or, contrivance was practiced by the appellant upon the plaintiff in procuring the deed, and there was no mistake or misapprehension of any existing fact. As conclusions of law it was found by the special term that the plaintiff was entitled to the poseession of the farm, and to the use and occupation thereof, for and during the term of his natural life, and that he was entitled to a judgment that the appellant execute and deliver to him a conveyance of a life lease thereof, the form to be settled by the trial justice if not agreed upon by the parties.

The appellant, at the time of the making of the verbal agreement, was a ninfant, being then about nineteen years old. This is claimed to be a defense to the action. She became of age on June 4, 1892. On December 1, 1892, she took possession of the property, claiming, in effect, tó own and control it under the deed to her. She thereby accepted the deed, and retained the benefits of her contract. Taking its benefits, she should be subject to its burdens. In Henry v. Root, 33 N. Y. 526, it was held that when an infant has purchased real estate, and has taken and continued in possession after becoming of full age, and has exercised acts of ownership over it, he will be deemed to have ratified the contract of purchase; that he cannot retain the benefits of his contract, and thus affirm it, after becoming of age, and yet plead infancy to avoid the payment of the purchase money. See also 1 Pars. Cont. (8th ed.) 326, note y; Hubbard v. Cummings, 1 Me. 11; 10 Am. & Eng. Enc. Law, 653. The present is not a case where an infant has undertaken to dispose of property of her own, and, on becoming of age, disaffirms the contract, and reclaims the „ property. It is rather a case where an infant bargains for property and, on becoming of age, receives and uses it, but repudiates any obligation to pay for it. The defense of infancy should not prevail.

The appellant further claims that, as the agreement was verbal, she cannot be compelled to perform upon her part, although she received and retains the full consideration coming to her. At the time of the execution and delivery of the deed by Taylor, the appellant, in substance, agreed that if the plaintiff would purchase the property, and have it conveyed to her, she would execute and deliver to him a life lease. The plaintiff, on his part, fully performed. He cannot recover back from Taylor the money he paid him. Ordinarily, a party who ref uses to go on with an agreement, void by the statute of frauds, after having derived a benefit by a part performance, must pay for what he has received, the other party not being in default. Whittaker v. Burrows, 71 Hun, 481; 54 St. Rep. 405. That is supposed to restore the parties to their original condition. Here the parties cannot in that way be restored to their original condition, inasmuch as Taylor is not obliged to receive back the property and return the money. Equitably the appellant has no right to keep the property, unless she performs her agreement,. The fact simply that the consideration to Taylor was paid by the plaintiff and the conveyance was made to the appellant, would not raise a use or trust in favor of plaintiff, but the title would vest in the appellant. 4 Rev. St. (8th ed.) p. 2437, § 51. This, however, would not prevent the operation of any agreement that was good in law or equity, in part performance of which the deed was given. The power of a court of equity to Compel specific performance of verbal agreements in cases of part performance was not intended to be abridged. 4 Rev. St. (8th ed.) p. 2590, §10. There is no doubt the title vested in the appellant, and that was the intention of the parties. The question here is whether the appellant should do as she agreed to do in case the title did vest in her. In Smith v. Smith, 125 N. Y.. 224; 34 St. Rep. 857, it was held that a paroi agreement to give a lien upon land for money to be expended in improving it, followed by an advancement and actual expenditure of the money in the manner contemplated, is so far performed that equity will enforce it, and the statute of frauds is no defense. In Murphy v. Whitney, 140 N. Y. 546 ; 56 St. Rep. 510, there was a verbal agreement, under which the plaintiff claimed a remainder in certain real estate, and in pursuance of which the defendant Mary Murphy had become vested with the title, but was undertaking to dispose of it in violation of the agreement. In answer to the defense of the statute of frauds it was said:

“But here there was part performance sufficient to take the agreement out of the statute of frauds. The agreement alleged in the complaint had been substantially kept by all the parties thereto until the land became vested in the defendant Mary, and she had thus been largely benefited by the agreement, and had received all the fruits thereof which were to come to her. She could not, therefore, urge against this agreement that it was void under the statute of frauds, because not in writing.’’

In Ryan v. Box, 34 N. Y. 307, 319, it is said:

“Where one of the parties to a contract void by the statute of frauds avails himself of its invalidity, but unconscientiously appropriates what he has acquired under it, equity will compel restitution ; and it constitutes no objection to the claim that the opposite party may happen to secure the same practical benefit, through the process of restitution, which would have resulted from the observance of the void agreement.”

The part performance must be such that the party will be put into a situation which is a fraud upon him unless the agreement is fully performed. Wheeler v. Reynolds, 66 N. Y. 231; 2 Story, Eq. Jur. § 761; Farwell v. Johnston, 34 Mich. 342. As the plaintiff here cannot recover back from Taylor the money he paid, him, and as he has no action at law against the appellant for damages, he will be placed in a situation that will be a fraud upon him unless there be specific performance. The special term therefore did not err in awarding specific performance. The fact that at the time of the original transaction there was no fraud or mistake, does not help the appellant. The question is whether her failure subsequently to perform will operate as a fraud upon the plaintiff.

The appellant claims that the form of the life lease as stated in the judgment is not correct. There is, however, no exception that raises the question. The agreement was to give a life lease without stating for whose life. It is, however, from the facts as found, clearly inferable that the intent of the parties was that the lease should be for the life of the plaintiff. Some facts are found indicating fhat at the time of the arrangement between plaintiff and the appellant there was litigation between plaintiff and his wife, and that a few weeks after the delivery of the deed there was trouble between plaintiff and the appellant. No facts, however, upon these subjects, are found that operate as a defense. They perhaps had a bearing on the question as to how the discretion of the court, said to exist in such cases, Margraf v. Muir, 57 N. Y. 158, should be exercised. No good reason is apparent for interfering with the discretion as exercised by the special term. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    Katharine J. Wilbur, Resp’t, v. Delaware, Lackawanna and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    1. Evidence—Negligence.
    In an action for personal injuries, evidence that the person, injured at a crossing where no flagman was at the time, had seen one there a short time before, is admissible on the question of contributory negligence.

      2. Negligence—Contributory.
    The question of contributory negligence, under the evidence in the case, was held to have been properly submitted to the jury.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion fora new trial, made on the minutes.

      John G. Milburn, and Robert T. Turner, for app’lt; Frederick Collin, for resp’t.
   Merwin, J.

The railroad of the defendant, at or near its station at Lowmanville, in the county of Chemung, crosses at nearly right angles a highway which runs nearly north and south. On' the 8th day of April, 1893, Mr. Wilbur, the plaintiff’s intestate, in company with one Gardner, was passing northerly along this highway iu a one-horse covered buggy. Mr. Wilbur sat on the right-hand or easterly side, and was driving. The day was cloudy and rainy, and the top of the buggy was up and the side curtains down. It was about five o’clock in the afternoon. The road of the defendant there has two tracks, the space between the two-being about eight feet. As Wilbur approached the crossing, and about twenty-five feet from it, he stopped and waited for the passage eastwardly of a long freight train on the south, or east-bound, track. After this train passed by, he drove on, and as he was crossing the north, or west-bound, track, he was struck by a train going west on the north track, and both he and Gardner were killed. The train was a fast one, going, according to some of the evidence, at the rate of over sixty miles an hour, and was behind time. It was known as “No. 3,” and called the “Flyer.” The plaintiff gave evidence tending to show that no signals were given of the approach of the train, no whistle blown, or bell rung. Evidence to the contrary was given on the part of the defendant. An issue in this respect was presented for the jury to decide, and the verdict in this respect should not be disturbed. Whether the defendant was negligent was a question of fact.

The question of contributory negligence is strongly pressed. There is evidence that as Mr. Wilbur started to drive across, and before he reached the first track, he looked out eastwardly, as if to see whether a train was approaching on the other track. At what particular point he was when he looked cannot with certainty be fixed. Two witnesses speak of the looking out, but whether they refer to the same act or différent acts was for the jury to say. So it was uncertain as to how far the rear of the freight train had passed beyond the crossing at the time the looking out occurred, and hence uncertain how far eastward the party looking could see an approaching train. There was a curve in the eastward tracks, which, according to some of the evidence, prevented seeing a train in that direction more than about sixty rods. There was also the freight train, and its engine, as it passed along, emitted a good deal of smoke, that was going over the tops of the cars, and might interfere somewhat with seeing an approaching train. There was no flagman at the crossing, although the deceased had seen one-there a short time before. The train was coming very rapidly, as. the jury may have found, and without any signals heard by the deceased. The question of contributory negligence was, we think, for the jury to decide. Greany v. Long Island Railroad Co., 101 N. Y. 419; McNamara v. N. Y. C. & H. R. Railroad Co., 136-id. 650; 49 St. Rep. 395 ; Weber v. N. Y. C. & H. R. Railroad Co., 58 N. Y. 451; Parsons v. N. Y. C. & H. R. Railroad Co., 113 id. 364; 22 St. Rep. 697; Sherry v. N. Y. C. & H. R. Railroad Co., 104 N. Y. 652 ; 5 St. Rep. 374; Borst v. Lake S. & M. S. Railroad Co., 4 Hun, 346; Miller v. N. Y. C. & H. R. Railroad Co., 82 id. 164; 63 St. Rep. 766. The deceased was bound to make all reasonable effort to see that a careful, prudent man would make under like circumstances. He was not bound to provide against any certain result. Shaw v. Jewett, 86 N. Y. 617. In the Greany case, .101 N. Y. 427, it is said of an occurrence similar in some respects to the present that whether the party “ looked exactly at the right moment, or in each direction in proper succession, or from the place most likely to afford information, cannot be determined as matter of law ; and whether, upon the whole, and in view of all the surrounding circumstances, including the negligent conduct of defendant, she exercised due care, was a question which the trial court could not properly decide for itself, but was bound to submit to the jury as one which they alone could answer.” In the McNamara case it was said, page 653, 136 ¡N". Y.“It was possible for the jury to find upon the evidence that she [the plaintiff] used reasonable care and caution, and this made the question one of fact, which has been determined by the verdict in favor of the plaintiff.” In this case, whether the deceased, in the exercise of reasonable care, under the circumstances, should have seen the train in time to have avoided the accident was a question of fact for the jury.

Upon the question of contributory negligence, it is claimed by the defendant that improper evidence was received. It was shown by plaintiff without objection that at the time of the accident there was no flagman at the crossing. It was then shown by a witness named Pierce that two or three weeks before the accident he had driven over this crossing with Mr. Wilbur, about the time this train ¡No. 3 passed through west. The question was then asked, “ Was there at that time a -flagman at that crossing?” This was objected to by the defendant as immaterial and inadmissible, and the court held it was admissible ’on the question of contributory negligence, and overruled the objection, and defendant excepted, and witness testified that there, within the view of the witness and of Wilbur, there was a flagman at that crossing for that train. In McNamara v. Railroad Co., supra, a flagman stationed at a crossing, whose duty it was to warn persons approaching of danger, was absent from his post at the time of the accident, and it was, in effect, held that this was a circumstance to be considered on the question of the contributory negligence of one accustomed to pass at that point, the court saying that the deceased “ had the right to rely upon the presence of the flagman to warn her of any danger, and she had a right to assume that trains would not be operated at such a place with such an unusual rate of speed, and that proper signals would be given to persons using the street of the approach of a train by ringing the bell and sounding 'the whistle.” The defendant claims that the case of McGrath v. N. Y. C. & H. R. Railroad Co., 59 N. Y. 468, is in point against the relevancy of the evidence. In that case, as said in the opinion, at page 472, “ there is no ground for imputing any negligence to the plaintiff upon the evidence in the case, unless he omitted to look for the approaching train before he crossed the railway, or undertook to cross the track in advance of the train after seeing it.” It was held that the absence of the flagman who was accustomed to be there did not excuse the traveler from the charge of negligence in omitting the use of his senses. This case does not seem to necessarily hold, and in view of the McNamara case it should not be deemed to hold, that when the traveler does look and listen, and the question is whether he looks at the proper place or at the proper time, the circumstance of the absence of the flagman may not be considered with other circumstances. In Dolan v. D. & H. Canal Co., 71 N. Y. 285, the absence of the flagman is stated to be one of the circums,anees to be considered on the question of the negligence of the plaintiff. In Sullivan v. Tioga Railroad Co., 44 Hun, 304, 311; 7 St. Rep. 627, it was held competent to prove, on the question of contributory negligence, that the defendant failed to observe its rule as to the ringing of the bells of locomotives in its yard. But it is argued that there is no proof that it was customary for the defendant to have a flagman at that crossing. There was no proof on that subject either way, except as it may be inferred from the evidence of the witness Pierce, above referred to. The evidence was not objected to on that ground. The material question was, what knowledge did the deceased have of the situation, as he approached on the day of the accident, that would properly bear on the amount of care he should exer- • cise? He had been there shortly before at the time this train passed, and a flagman was there. It cannot be said, as in the case of Whalen v. N. Y. C. & H. R. Railroad Co., 58 Hun, 431, 433; 35 St. Rep. 556, cited by counsel for the defendant, that the deceased knew it was not the habit of the company to have a flagman there. He did not live in that vicinity, and we cannot assume that he would know the custom of the company on the subject. What he had in fact seen there recently before was, we think, competent, and its weight was for the jury. The counsel" for the defendant claims that the court, in its charge, permitted the jury to give undue effect to the circumstance of the absence of the flagman. The question as finally left to the jury on that subject was “ whether, taking the circumstances as they there existed, including this fact, he acted as an ordinarily prudent man in proceeding to cross as he did.” This, we think, correctly presented the question, and, in view of the prior discussions between court and counsel, it is not apparent that the jury would be likely to be misled by any prior statement of the question in a form that perhaps®was not exactly correct. We find no sufficient ground for reversal.

Judgment and order affirmed, with costs.

All concur.


author: Martin, J.

text:
    The People, Resp’t, v. Henry Brockett, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February1, 895.)

    Witness—Contradiction.
    It is proper to show inconsistent statements of a witness, made out of court, to affect his credibility.
    Appeal from a judgment of conviction for assault in the third degree.

      George W. Smith, for app’lt; Irving R. Devendorf, for the People.
   Martin, J.

The defendant was indicted for assault in the second degree. In the indictment it was charged, and the evidence of the prosecution tended to show, that the defendant was guilty of an assault with an intent to commit a rape. Whether an assault, was made; if so, its character, and the intent of the defendant in making it,—were the questions at issue and litigated on the trial. The court, in effect, charged that if the jury found that the defendant performed the acts testified to by the complainant, with the intent of perpetrating an act of sexual intercourse with her, without her consent, and against her utmost resistance, it-would constitute assault in the second degree, but that, if they were performed without that intent, it would amount only to assault in the third degree. The jury found the .defendant guilty of assault in the third degree. A careful and somewhat critical examination of the evidence renders it clear, we think, that it was sufficient to justify the verdict. The logic of the contention that' the judgment should be reversed because the jury failed to find the intent necessary to constitute assault in the second degree is. not quite apparent. The evidence was perhaps sufficient to have justified the jury in finding the intent necessary to constitute the greater offense. Yet it may have had a reasonable doubt as to-such intent, while it had none whatever as to the assault. Under these' circumstances the defendant was properly convicted of the lesser crime (Pen. Code, § 35), and it follows that the judgment should be affirmed, unless there is some valid exception in the case requiring a reversal.

The only exception to which the defendant has called our attention is to the admission of evidence as to the contradictory statements of the witness Jesse Conkling. This witness had testified that on the night of the assault, he met a “rig” beyond the-woods ; that the horse was light colored, hitched to a top buggy * and that there were two persons in the wagon. It was claimed by the defendant that the persons who were mentioned by the witness were the complainant and himself. The witness also testified r

“ Met them somewhere between the sluiceway and the hill. Can’t say just where. We had passed over the bridge. Lady and gentleman in the carriage. I saw the lady tflrn and look back.”

On the cross-examination of this witness, he testified:

“ I did not state to Melzer Buck that I met a gray horse and carriage, with two persons in, between the bridge and the top of that stony hill.”

The People subsequently called Melzer Buck, and asked him this question:

“ Some time last winter, at Jesse Oonkling’s house, did he say to you, in the presence of Ed. Perry, that he met this rig, with a white horse and carriage, and two persons in the carriage, between the sluice or bridge on the east side of the Beaver woods and the top of,the stony hill?”

This was objected to on the ground—

“That, no matter what would be the response'to it, or assuming that the response is to be what the question indicates, it doesn’t in any respect contradict the witness in any material part of his evidence; that it is wholly indefinite ; that he might have said it is between the top of the stony hill and the bridge, because Ms testimony is so, only he locates it more particularly within that limit. There is no contradiction about it. The court: I think I will allow the People. There is a slight variation in the statement, from which may be argued that the witnesses at that time were less certain about the precise position than they are on the stand."

The question was allowed, to which the defendant excepted, and the witness answered, “He did say so." We find in this ruling no error which would justify a reversal of the judgment While it may be that the contradiction was not a serious one, yet, as stated by the court, it tended to show that, at a time nearer the transaction than the trial, the witness had declared that he met the rig somewhere between the sluiceway and the top of the hill, while at the trial he testified that it was between the sluiceway and the hill. That it is proper to show inconsistent statements of a witness out of court, to affect his credibility, is too well established to require discussion. Sloan v. N. Y. C. Railroad Co., 45 N. Y. 125. If, however, the evidence of these witnesses in no way contradicted that of the witness Conkling, it is difficult to see how the defendant was in any way injured by the admission of the evidence. Ho substantial right was prejudiced thereby, and hence, under the provisions of section 764 of the Code of Criminal Procedure, as it Was merely a technical error, it should be disregarded. These considerations lead us to the conclusion that the judgment appealed from should be affirmed.

Judgment of conviction of the court of sessions of Herkimer county affirmed, and, after the judgment is entered in the judgment book, a certified copy of the entry shall be forthwith remitted to the clerk of Herkimer county, with whom the original judgment roll is filed, in accordance with the provisions of section 547 of the Code of Criminal Procedure. ,

Merwin, J., concurs. Hardin, P. J., not voting.


author: Mayham, P. J.

text:
    Hilton Bridge Construction Company, App’lt, v. Gouverneur & Oswegatchie Railroad Company et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    1. Parties—Proper.
    A sub contractor, its assignee and the receiver appointed upon its becoming insolvent, are proper parties in an action to foreclose a mechanic’s lien on a railroad.

      2. Same.
    So, the attorneys of the assignee who were employed to procure a clear right of way for the company, are proper parties.
    8. Same—Laches.
    When a motion to bring in such parties as defendants will not be denied on the ground of loches.
    Appeal from an order, directing plaintiff, by supplemental summons and complaint, to bring in other parties defendant.

      Edward Winslow Paige, for app’lt; Frank Loomis (Ira A. Place and Thomas Spralt, of counsel), for resp’t railroad companies; Conger & Orvis (G. S. Conger, of counsel), for the other resp’ts.
   Mayham, P. J.

The record on this appeal shows that the New York Central & Hudson River Railroad Company and the Gouverneur & Oswegatchie Railroad Company are, respectively, corporations organized under the laws of the state of New York, and that the Moffett, Hodgkins & Clarke Company is a foreign corporation, organized under the laws of New Jersey ; that the Gouverneur & Oswegatchie Railroad Company was engaged in the construction of a railroad in the state of Ñew York, and that on the-11th day of May, 1892, the above-named railroad companies entered into a contract whereby the first-named railroad company would construct the railroad of the latter company, with all the necessary erections and constructions, and would acquire and pay for the lands, and furnish such last-named comp&ny good and sufficient deeds therefor, and complete the construction and equipment of such road, by the 1st of November, 1892, for the sum of $650,000, which sum the Gouverneur & Oswegatchie Railroad Company agreed to pay, as follows: $350,000 cash on the 15th day of July, 1892 ; $50,000 cash or first mortgage bonds on the 15th day of August, 1862; $50,000 cash or such bonds on the 15th of September, 1892; $50,000 cash or bonds on the 15th day of October. 1892 ; and, within fifteen days after the complete performance of such contract, $100,000 in cash or like bonds. The case discloses that after the making of this contract, and on the same day of the date thereof, the defendant the New York Central & Hudson River Railroad Company entered into a contract with the Moffett, Hodgkins & Clarke Company, whereby the latter company, for a consideration therein expressed, agreed to construct the Gouverneur & Oswegatchie railroad, in the manner therein particularly set out, and to be paid therefor as therein specified, under which agreement the Moffett, Hodgkins & Clarke Company commenced and continued work for some time, but failed to finish the same, and secure the right of way as was agreed by them, and became insolvent; whereupon Booream and O’Brien were appointed receivers of that corporation in this state, and were acting as such at the time of the commencement of this action. Before the appointment of such receiver, the Moffett, Hodgkins & Clarke Company assigned to Louis Marshall its interest in the contract with the New York Central & Hudson River Railroad Company as collateral to the payment of some of its obligations. While the Moffett, Hodgkins & Clarke Company were operating under their contract with the railroad company, they employed Conger & Orvis as attorneys to secure the right of way for the railroad, and procure titles and releases therefor, and such attorneys performed work under such employment, and had in their possession, at the time of the commencement of this action, such conveyances and releases, which they refused to surrender to the railroad company until their alleged liens for services were paid. The Moffett, Hodgkins & Clarke Company, as is alleged, had also employed the plaintiff to build and construct bridges on the line of this railroad, for which plaintiff claims it has not been paid, and for which it is alleged liens were filed, which are now being foreclosed in this action. It is claimed by the New York Central & Hudson Biver Bailroad Company that that company, by its contract with the Moffett, Hodgkins & Clarke Company, was protected against liens, and that it has fully paid that compa_ny for all it is liable to pay on account of the contract with it. Upon these facts the defendants insist that the persons and firms brought in by the order appealed from are necessary and material parties to this action.

The first objection urged by the plaintiff to the granting of this order is that the defendants were guilty of loches in making the motion, and the order should have been refused by the special term on that account. The action was brought on the 3d of February, 1894 The answers set up the nonjoinder of the Moffett Company, Louis Marshall, and Booream and O’Brien as defendants, and such answers appear to have been served in time for the May circuit, at which circuit the plaintiff noticed action for trial; and the defendants the two railroad companies on the 27th of April served notice in writing on Marshall and the receivers, Booream and O'Brien, to appear at that circuit and protect their interests. The case discloses that soon thereafter negotiations were commenced between the attorney for the plaintiff and the railroad companies, and also the attorneys for the parties brought in by the order appealed from, looking to the question of bringing in such parties; but no definite result was reached by such negotiations, and finally, on the 11th of September. 1894, a motion was made at a special term, and this order granted.

Under the circumstances of this case, we do not think the court on appeal should reverse this order on the ground of loches in making this motion. It cannot be said that the defendants in the action, as originally commenced, took any such subsequent step after serving the answer as would be a waiver of their rights to make this motion. In the answer the "question of defect of parties defendant was s°pecifieally raised, and the plaintiff seemed to regard that question as still open after the service of the answer, by participating to some extent in negotiations looking to the bringing in of other parties defendant. Besides,-the question of loches is one that to some extent is addressed to the discretion of the special term (Lawrence v. Jones, 15 Abb. Pr. 110), and we do not think the special term, in disregarding the delay in making this motion, abused that discretion.

But upon the merits it is insisted that the motion as to the receivers was improperly granted. The receivers represent the plaintiff’s obligors, or the parties for whom the plaintiff performed the work, and it is only by reason of the railroad companies’ interest in the property against which the lien was filed that they are made parties defendant. It is conceded by the learned counsel for the plaintiff that it would have a personal action against the receivers, arising out of the contract between the plaintiff and the contracting company, which the receivers represent; but it is insisted that if they were parties to the action, and should succeed in def eating the plaintiff’s claim, the receivers would still be compelled to try the legal issue, with the Central Railroad Company whether that company owed the receivers or party represented by them or not. We do not think that would follow in this case. If in this action it turn out that the Central Railroad Company owed nothing to the contracting company, then the plaintiff would, it seems to us, fail in this action; but that question could not be effectually tried, so as to bind the receivers, unless they were before the court in this action ; and, as the rights and liabilities of all the parties arise out of the same subject-matter of the action, the rights of each and all, if before the court' in this action, can be effectually adjudicated and determined so as to bind all. For that purpose the receivers of the Moffett, Hodgkins & Clarke Company would seem,- not only to be proper, but necessary, parties for the purpose of determining whether or not the railroad company owed the Moffett, Hodgkins & Clarke Company anything on which the plaintiff’s lien would attach under its employment by the latter company. Ho complete determination of the controversy could be had without the presence of the representatives of "the Moffett, Hodgkins & Clarke Company, and they would therefore seem to be proper and necessary parties, under the provisions of § 452 of the Code of Civil Procedure.

The counsel for the plaintiff objects, also, that the motion of the railroad company to bring in Louis Marshall, the assignee of the Moffett, Hodgkins & Clarke Company, was improvidently granted. Marshall was the assignee of the interest of the Moffett, Hodgkins & Clarke Company in its contract with the Central Railroad Company. As such, he was directly interested in the amount, if any, of the plaintiff’s recovery against that company, provided that amount was to be taken out of any balance due from the railroad company to Marshall on Hodgkins & Clarke’s claim, which had been assigned to him; and while he, as assignee, might not be bound by the result of the plaintiff’s action against the railroad company, he would, for the reason stated above ip the discussion of the question as to the propriety of the receiver being made a party, in like manner be a proper party for the purpose of a complete determination of the matter in controversy, to wit, the amount, if any, of the indebtedness of the railroad company to the Moffett, Hodgkins & Clarke Company, and, if so, whether the plaintiff or the receiver of the Moffett, Hodgkins & Clarke Company are entitled to the same. In theory, it is insisted by the plaintiff, the railroad companies must litigate the question of the indebtedness of the Hew York Central & Hudson River Railroad Company to the Moffett Company in an action between the plaintiff and railroad companies, which will in no sense bind the Moffett Company or its representatives as to the fund over which the controversy is waged, leaving the railroad companies and the Moffett Company to settle their rights to the same fund in an independent action, thus subjecting the railroad companies to the hazard of being twice charged with the same fund. Against such a result we think § 452 of the Code of Civil Procedure furnishes a remedy, or rather a preventive. That section is as follows :

“ The court may determine the controversy as between the parties before it, when it can do so without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. And where a person not a party to the action has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment and makes application to the court to be made a party, it must direct him to be brought in.”

We think the provision of the Code is broad enough to cover a case of this kind, and justify the order bringing in the receiver and assignee of the Moffett, Hodgkins & Clarke Company. By the terms of the agreement between the Hew York Central & Hudson River Railroad Company and the Moffett, Hodgkins & Clarke Company, the latter agreed to procure the right of way for the Grouverneur & Oswegatchie railroad, and in the attempt to perform that contract the Moffett Company employed Conger & Orvis, attorneys, to procure a clear title to such right of way, which to some considerable extent they did, but retained in their own hands, by virtue of their lien as attorneys, the titles so secured, in default of payment for their services; and upon the motion of the receivers of the Moffett Company, their attorneys were, on this motion, ordered to be brought in as defendants, so that their lien upon the muniments of title to the right of way might, on an adjustment and payment of their lien in this action, be settled, and the title deeds in their hands might be delivered to the party entitled to the same. This claim also arises out of the transactions involved in the action, and the subject-matter in controversy therein, and, while they have not filed notice of their lien, they nevertheless have liens, both at common law and by statute, which cannot be divested except upon payment; and in • this action," which is in the nature of an equitable action, to enforce a lien against this property, we see no reason why these attorneys are not proper parties defendant therein. We think, on the whole case as presented on this appeal, the order of the special term was proper, and should be affirmed. Order affirmed, with $10 costs, and printing and other disbursements.

All concur.


text:
    The People, Resp’t, v. Richard H. Stone, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 1895.)

    1. Criminal law—Fertilizers.
    Chap. 437 of 1890, while it makes it an offense to omit to attach to packages of fertilizer the certificate required, does not make it an offense to attach a false certificate.
    2. Same—Indictment.
    _ An indictment for such offense, which does not directly charge the principal fact that the defendant offered for sale packages of fertilizer to which he had omitted to attach the certificate required by the statute, is insufficient.

      3. Same.
    Such indictment should allege the name of the person to whom the goods were offered for sale, if known ; if not, that they were offered to a person whose name was unknown.
    Appeal from a judgment, overruling a demurrer to the indictment and adjudging the defendant guilty of the crime of offering for sale commercial fertilizers with false analyses.

      William M. Noble, for app’lt; J. H. Jennings, for the People.
   Martin, J.

The indictment in this case was presented by the grand jury at a term of the oyer and terminer held in and for the county of Tompkins on the 28th day of October, 1893. It was sent to the court of sessions for trial, and was as follows:

“Court of Oyer and Terminer of the County of Tompkins. “The People of the State of New York against Richard H. Stone.
“ The grand jury of the county of Tompkins, by this indictment, accuses Richard H. Stone, of the town of Ulysses, in the county of Tompkins, of the crime of offering for sale commercial fertilizers with false analysis attached, committed as follows : The said Richard H. Stone, on the 1st day of January, 1892, at the town of Ulysses, in the county of Tompkins, and state of New York, and at divers and various other times between that date and the date of the finding of this indictment, at the town of Ulysses, in the county of Tompkins, and state of New York, willfully and unlawfully did have in his possession as if for sale, and did offer and expose for sale, to be used in this state, commercial .fertilizers, contained in packages, on which said packages was printed and attached an analysis purporting to state the percentages of phosphoric acid, potash, and ammonia contained in said packages, and which said analysis, so printed on said packages as aforesaid, and accompanied by an affidavit stating thatsaid analysis was a true representation of the contents of said packages, while in truth and in fact said analysis so .attached to said packages of commercial fertilizers as aforesaid did not contain a true representation of the contents of said packages of commercial fertilizers, in that said packages of commescial fertilizer aforesaid were deficient of the amount of phosphoric acid, ammonia, and potash set forth and contained in said printed analysis attached to said packages, by more than one-half of one per centum of phosphoric acid, and by more than one-half of one per centum of ammonia, and by more than one-half of one per centum of potash. And the said Richard H. Stone did so willfully and unlawfully offer and expose for sale, and have in his possession as if for sale, said packages of commercial fertilizers as aforesaid, he, the said Richard H. Stone, well knowing that said packages of commercial fertilizers so offered and exposed for sale as aforesaid were deficient in the amount of phosphoric acid, ammonia, and potash as above set forth ; and that at the time and times hereinabove mentioned the selling price of said commercial fertilizers was ten dollars per ton, or more; and that said selling price of ten dollars per ton or more was fixed and asked by "said Richard H. Stone, against the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity.
“ J. H. Jennings, District Attorney.”

Upon this indictment was the following indorsement:

“ Court of Oyer and Terminer. The People against Richard Stone. Indictment for offering for sale commercial fertilisers with false analysis attached. J. H. Jennings, District Attorney.”

To the indictment tjie defendant interposed a demurrer. The objections raised thereby, briefly stated, are as follows : (1) That the indictment does not conform substantially to the requirements of § 275 of the Code of Criminal Procedure, in that it does not contain a plain and concise statement of the act constituting the crime; (2) that it does not conform substantially to the requirements of § 276 of the Code of Criminal Procedure, in that it does not contain the name of the crime charged, or any brief description of it, as it is given by statute; (3) that the facts stated therein do not constitute a crime; (4) that the statute (chapter 437, Laws of 1880) does not make the violation of any of its provisions a crime-; (5) that the grand jury had no jurisdiction to take cognizance of the matter; and (6) that the statute is unconstitutional.

Chapter 437 of the Laws of 1890, which is entitled “ An act for the protection and education of farmers and manufacturers in the purchase and sale of fertilizers,” by its first section provides:

“ All commercial fertilizers which shall be offered for sale, to be used in this state, shall be accompanied by an analysis stating the percentages contained therein of nitrogen or its equivalent of ammonia, of soluble and available phosphoric acid, the available phosphoric acid either to be soluble in water or in a neutral solution of citrate of ammonia as determined by the methods agreed upon by the American Society of Agricultural Chemists, and of potash soluble in distilled water. A legible statement of the analysis of the goods shall be printed on, or attached to each package of fertilizers offered for sale for use in the state; and where fertilizers are sold in bulk, to be used in this state, an analysis shall accompany the same, with an affidavit that it is the true representation of the contents of the article or articles.”

By section 3 it is provided :

“ Whenever a correct chemical analysis of any fertilizer offered for sale in this state shall show a deficiency of not more than one-third of one per centum of nitrogen or its equivalent of ammonia or one-half of one per centum of soluble or available phosphoric acid and one-half of one per centum of potash soluble in distilled water, such statements shall not be deemed false within the meaning of this act. This act shall apply to all articles of fertilizers offered or exposed for sale for use in the state of New York, the selling price of which is ten dollars per ton or higher, and of which they are part or parcel, and of any element into which they enter as fertilizing material, among which may be enumerated nitrate of soda, sulphate of ammonia, dissolved bone black and bone black undissolved, any phosphate rock, treated or untreated with sulphuric or other acids, ashes from whatever source obtained, potash salts of all kinds, fish scrap, dried or undried, also all combinations of phosphoric acid, nitrogen or potash, from whatever source obtained, as well as all and every article that is or may be combined for fertilizing purposes.”

The fifth section declares :

‘“Every person, firm or corporation violating any of the provisions of this act shall, upon conviction thereof, for the first offense be punished by a fine of not less than fifty dollars, nor more than two hundred dollars, and for the second offense by double the amount in the discretion of the court; such fines to be paid to the officer whose duty it is to enforce the provisions of this act, to be used by him for that purpose, and to be accounted for to the comptroller.”

Section 6 provides:

“The director of the New York State Agricultural Experiment Station at Geneva is charged with the enforcement of the provisions of this act, and shall prosecute in the name of the people, for violations thereof : and for that purpose he may employ agents, counsel, chemists and experts, and the court of special sessions shall have concurrent j urisdiction to hear and determine charges for violating the provisions of this act committed in their respective counties, subject to the power of removal provided in chapter one of title six, of the Code of Criminal Procedure.”

The Code of Criminal Procedure provides that an indictment must contain “a plain and concise statement of the act constituting the crime, without unnecessary repetition” (section 275), and that the name of the crime be inserted, if it have one, or, if it be a misdemeanor, having no general name, a brief description of it,.as given by statute, stated, and the act charged as an offense set forth (section 276). The appellant contends that these provisions of the statute were not complied with, and hence that his demurrer should have been sustained. If the indictment does not conform substantially to the requirements of sections 275 and 276, it is a ground of demurrer under section 323 of the Code of Criminal Procedure. The particular grounds upon which the appellant rests his contention that the indictment does not contain a plain and concise statement of the act constituting the crime are: (1) That it is not alleged that there was not printed on or attached to the packages of fertilizer offered for sale to be used in this state an analysis of the nitrogen, or its equivalent of ammonia, of soluble and available phosphoric acid, and of the potash soluble in distilled water, as required by section 1 of the statute; (2) that it did not allege the name of the person to whom the goods were offered for sale, if known and if not, the fact that such person was unknown; (3) thát it is "not alleged therein that nitrogen, or its equivalent of ammonia, of soluble or available phosphoric acid, and potash soluble in distilled water, were a part or parcel of such fertilizers, or of some element which entered into their composition ; (4) that it is not alleged that methods (stating them) -have been agreed upon by the American Society of "Agricultural Chemists for the determination of the solubility of available phosphoric acid. An examination of the indictment renders it quite obvious that it was found and drawn upon the theory that the statute of 1890 made it'a crime to affix a false certificate to any package of commercial fertilizer sold or offered for sale. By chapter 222 of the Laws of 1878 it was provided that “for affixing a false certificate to any barrel, sack, box or package of fertilizer, the party disposing of such barrel, sack, box or package, shall forfeit to the purchaser thereof the sum of two hundred dollars.” That statute was repealed by section 10, c. 487, Laws 1890. When we look at the statute of 1890, we find that it contains no provision whatsoever making such an act a crime, or directly forbidding it. Tire only reference in the statute to a false certificate is contained in section 8, which provides that, where the deficiency is not more than one-third of one per centum of nitogen, or its equivalent of ammonia, or one-half of .one per centum of soluble or available phosphoric acid and one-half of one per centum of potash soluble in distilled water, such statement shall not be deemed false within the meaning of this act. This provision cannot, we think, be regarded as sufficient to make it a crime to affix a false certificate to a package of such fertilizer. The statute contains no word's prohibiting the making of a false certificate, but only provides that when the deficit is but a certain per centum, the certificate shall not be regarded as false. Doubtless, a false certificate would, under this statute, be regarded as no certificate; but if the deficiency was no greater than that mentioned, it would, under the statute, still be sufficient, and the penalty for selling without a certificate would not be incurred. Purely statutory offenses cannot be established by implication. People v. Phyfe, 136 N. Y. 554; 49 St. Rep. 680. It follows, therefore, that as there is no express provision in the statute declaring the making of a false certificate to be a crime, and as no crime is to be implied from the provisions of section 3, the allegations in the indictment as to a false certificate are insufficient to charge the defendant with a crime. We find in the indictment no direct allegation that the required certificate was not printed on or attached to the packages of fertilizer alleged to have been offered for sale. It is alleged that a false certificate was attached; but nowhere is it alleged that a true one was not also attached. The offense created by this statute is that of omitting to attach the certificate required. This omission was the principal fact, and could not, we think, be inferred from the allegation that there was a false certificate. In People v. Albow, 140 N. Y. 130, 134; 55 St. Rep. 253, Andrews, C. J., in discussing the sufficiency of the indictment in that case, said:

“A criminal charge may be, and often is, supported by inferences from facts which imply the existence of the principal fact constituting the offense. But the principal fact must be charged in the indictment. It is not sufficient to allege the facts from which an inference of the principal fact may be drawn, without charging the principal fact. The settled rule of criminal pleadings requires that all the elements which enter into the definition of an offense must be stated in the indictment. The strictness which formerly prevailed in respect to unessential matters in indictments, which often defeated the ends of justice, has been properly relaxed. But the rule that the offense must be charged in plain and intelligible language, and that the indictment must set forth all the essential elements of the crime, is, and ought to be, preserved alike for the protection of the accused and in the interest of the certain and orderly administration of the criminal law. It was said by Mr. Justice Field, in U. S. v. Hess, 124 U. S. 483, in the case of an indictment under a statute of the United States, for a fraudulent use of the mails, where essential facts were not averred: ‘ Mo essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly, and not inferentially, or by way of recital.' This is a sound exposition of the principle governing criminal pleadings.” . .

We think the doctrine of this case requires us to hold that the indictment in the case at bar was insufficient, because it did not directly charge the principal fact, which was that the defendant offered for sale packages of fertilizer to which he had omitted to attach the certificate required by the statute.

The indictment also fails to allege the name of the person to whom .the goods were offered for sale, or that his name was unknown. The recognized and well-established rules of criminal pleading required an allegation of the name of the person to whom such offer was made, if known ; if not an allegation that they were offered to a person whose name was unknown. In People v. Burns, 53 Hun, 274; 25 St. Rep. 97, where there was an indictment for selling and exposing for sale impure milk, it was held that it was essential to the validity of such an indictment that it should allege to whom the milk was sold by the defendant, or, if the purchaser was unknown, that fact should be alleged in the indictment. In the opinion in that case it is said :

“ The act sought to be charged was the sale of milk of a kind prohibited by said statute. To constitute such sale, there must have been a purchaser, and the defendant was entitled to be informed by the indictment who such purchaser was, so that he could be prepared to disprove "such sale upon the trial, if it had not been made as alleged. The omission of such statement in the indictment, constituted a material defect, as, without it, the defendant would be liable to surprise upon the trial, and quite likely to be prejudiced by such omission. The defect, therefore, must be regarded as matter of substance, and not merely of form, as if it was the right of the defendant to be informed not merely of the crime charged, but also of the act which constituted it.”

See, also, People v. Gregg, 59 Hun, 107; 35 St. Rep. 757; People v. Olmsted, 74 Hun, 323; 55 St. Rep. 681; People v. Pillon, 78 Hun, 74; 60 St. Rep. 810; People v. Humar, 106 N. Y. 502, 509 ; 11 St. Rep. 19; People v. Slark, 136 N. Y. 538 ; 49 St. Rep. 899. In the Stark case, which was an indictment for libel, it was held that where an indictment contained no averment as to the manner of publication, or of the person or persons to whom it was addressed, or by whom it was seen or read, or that the names of such persons were unknown to the grand jurors, the indictment was defective, and a. conviction under it error. In the opinion in that case it was said: “ Tested even by the liberal rule of the Criminal Code, I do not think such an indictment contains a plain and concise statement of the act constituting the crime. So far as the manner of publication is concerned, it does not allege any fact, but a mere conclusion of law. It was held by this court in People v. Dumar, 106 N. Y. 502; 11 St. Rep. 19, that the indictment must both charge the crime and state the act constituting it, and the principal reason for requiring a specific statement of the act is the right which the accused has to be informed of the precise accusation which he is required to defend.” The doctrine of the cases cited' seems to be conclusive upon this question, and to uphold the defendant’s contention that the indictment was defective in not stating the name of the person or persons to whom the packages of fertilizer were offered- for sale, or, if their names were not known, in not alleging that fact.

As the judgment herein must be reversed for the errors already pointed out, it is unnecessary to examine the other questions presented by the appellant. Judgment of conviction and interlocutory judgment disallowing the defendant’s demurrer reversed, and, after such judgment of reversal is entered in the judgment book, a certified copy of such entry shall be forthwith remitted to the clerk of Tompkins county, with whom the original judgment roll is filed, in accordance with the provisions of section 547 of the Code of Criminal Procedure.

All concur.


text:
    The People, App’lt, v. Samuel K. Hawkins, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Constitutional law—Convict made goods.
    Chap. 698 of 1894, which requires goods made by convict labor in another state to be labeled as such when exposed for sale in this state, is unconstitutional.
    Appeal from a judgment in favor of defendant, sustaining a demurrer to the indictment.

      William F. White, for the People; Frederick Collin, for resp’t.
   Martin, J.

Chapter 698 of the Laws of 1894 provides:

‘‘ Section 1. All goods, wares and merchandise made by convict labor in any penitentiary, prison, reformatory or other establishment in which.convict labor is employed in any state, except the state of Hew York, and imported, brought or introduced into the state of Hew York, shall before being exposed for sale be branded, labeled or marked as hereinafter provided, and shall not be exposed for sale in any place within this state without such brand, label or mark.”

Then follows section 2, which, in effect, provides that the brand, label, or mark required shall contain the words convict-made," followed by the year and name of the penitentiary, prison, reformatory, or other establishment in which it was made, in plain English lettering, and that the same shall be placed upon each article, where it will permit, and, if impossible, shall be in the form of a tag, and attached to each article where it will permit, and upon the outside of, and in the most conspicious part of, the finished article, its box, crate, or covering. Section 5 of that act amends section 38,4b of the Penal Code so as to provide :

-‘A person having in his possession for the purpose of sale, or offering for sale, any convict-made goods, wares or merchandise, manufactured "in any other state, without the brand, mark or label required by law, or who removes or defaces such brand, mark or label, is guilty of a misdemeanor, punishable by a fine not exceeding ten hundred dollars, nor less than one hundred dollars, or imprisonment for a term not exceeding one year nor less than ten days, or both.”

The defendant was indicted for a violation of this statute, in having in his possession for sale, and offering for sale, shoe brushes manufactured by convict labor at Cleveland, Ohio, which were not branded, labeled, or marked as required by the foregoing statute. To this indictment the defendant demurred upon the ground that the facts stated in the indictment were not sufficient to constitute a crime. This demurrer was allowed by the court, and judgment allowing it was duly entered in Delaware county. It is not claimed by the respondent that the indictment ■in this case was in any respect defective or insufficient, if the law under which it was found was valid. The .only ground upon which the defendant contends that the indictment was defective, or upon which he seeks to uphold the judgment herein, is that the statute under which it was found was unconstitutional and void. Hence the constitutionality of this statute is the only question upon this appeal. It was held by the learned trial judge in the court below that the statute was unconstitutional, because it operated upon property owned at the time it took effect as well as property thereafter acquired, and thus constituted an unlawful interference with vested rights; and upon the further ground that the statute in question makes such a discrimination between goods manufactured in foreign states and, those manufactured in this state as to make it repugnant to the provision of the federal constitution which places the control of interstate commerce in the hands of congress alone. We do not deem it necessary to discuss or decide the question whether this statute was void because it operated upon property owned when it took effect, nor whether it is void as being in contravention of any of the provisions of the constitution of the state. By the federal constitution the power to regulate commerce among the several states is vested in congress. It seems to be well settled that under this provision of the federal constitution no state has the power to enact any law which discriminates against the products or industries of other states in favor of those of its own; but that every person has the same right to dispose of goods manufactured in another state as he would if manufactured in the state where they were owned or sold, and that any local legislation which in terms or by its necessary operation denies or interferes with that equality, when applied to the products of another state, is a burden upon commerce among the states, and consequently unconstitutional and void. Ward v. Maryland, 12 Wall. 418 ; Welton v. State, 91 id. 275 : Guy v. Baltimore, 100 id. 434; Webber v. Virginia, 103 id. 344; Brimmer v. Rebman, 138 id. 78; Voight v. Wright, 141 id. 62; People ex rel. Penn. R. R. Co. v. Wemple, 138 N. Y. 1; 51 St, Rep. 702 ; Ex parte Thomas, 71 Cal. 204; Georgia Packing Co. v. Mayor, etc., of Macon, 60 Fed. 774. That the purpose and effect of the statute under which the respondent was indicted was to discriminate between convict-made goods manufactured in another state and the same class of goods manufactured in this state is manifest, and we are therefore of the opinion that the statute under consideration falls within the provision of the federal constitution which confers upon congress the power to regulate commerce among the several states. As was said in the Welton case:

“The fact that congress has not seen fit to prescribe any specific rules to govern interstate commerce does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that interstate commerce shall be free and untrammeled.”

Commerce among the states cannot be said to be free when a commodity is, by reason of its foreign manufacture, subjected by a state legislature to discriminating regulations or burdens. The main object of commerce between the states being the sale and exchange of commodities, the policy that interstate commerce should be free and untrammeled would be defeated by discriminating legislation like that of the act in question. In view of the authorities cited, further discusión of this question seems unnecessary. We are of the opinion that they fully sustain the result reached by the court below, and that the judgment should be affirmed.

Interlocutory judgment allowing the defendant’s demurrer af • firmed, and, after such judgment.of affirmance is entered in the judgment book, a certified copy of such entry shall be forthwith remitted to the clerk of Delaware county, with whom the original judgment roll is filed, in accordance with the provisions of section 547 of the Code of Criminal Procedure.

All concur.


author: Putnam, J.

text:
    Mary Kendall et al., Resp’ts, v. Margaret Case, App’lt.

      (Sapureme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Will—Construction.
    Where the testator gives his wife the income of all his property, and directs his executor, if any is left at her death, to divide it in a specified manner, the wife takes a life estate, with the right to dispose of the property for her support during her life time.
    Appeal from an interlocutory judgment, sustaining a demurrer to the answer.

      L. G. Van Tuyl ( William C. Lamont, of counsel), for app’lt; C. W. Hinman, for resp’ts.
   Putnam, J.

This is an appeal by defendant, Margaret Case, from an interlocutory judgment sustaining plaintiffs’ demurrer to the answer. The action was brought for the partition of a lot of land in the county of Schoharie, owned by one Vincent R. Wilber at the lime of his death. Plaintiffs claimed to be each seised of an undivided one-fourth part thereof, under the will of said deceased. The appellant averred that she owned the whole lot under a deed from Polly Wilber, widow of deceased; that under the will of said Vincent R. Wilber said Polly became seised of a life estate in said real estate, with a power to dispose of the same during her life for her support and maintenance, and that under said power she duly conveyed the premises to the defendant, Margaret Case. To the answer, which alleged the facts above suggested, the plaintiff interposed a demurrer, which was sustained, and the judgment from which this appeal is taken was entered.

The clauses in the will of Vincent R. Wilber which defendant claims conferred upon his widow, Polly, power to dispose of the real estate in question, are as follows :

Second. I give, devise, and bequeath to my beloved wife, Polly, the control, use, and incomes of all my property, both real and personal, of every nature, for her own benefit, so long as she lives ; and after the death of my said wife, Polly, and after the payment of funeral charges and erection of suitable tombstones, if any of said real or personal property is left, I order my executor to divide said remainder, share and share alike, and to pay my said children or heirs as follows : Betsey, my daughter, the wife of Ransom Thorne; Mary, my daughter, the wife of John Kendall ; Naomi, the wife of my son, Clark Wilber; and Margaret Case, the wife of Joel Case, she being the daughter of my wife, Polly; if either of said named should die without issue, then it is to be divided between the others living or having issue. Third. I hereby nominate and appoint Solomon D. Mackey, of said town, executor of this, my last will and. testament. I do hereby authorize my executor to sell, convey, and deed my real estate, if any is left, if he deems best to do so, and the deed he shall give shall be ■sufficient deed of all interest owned by me in my real estate.”

In construing the above-quoted clauses of the will in question, it is our duty to ascertain the "intent of the testator, as it may be ascertained from the provisions of the instrument. Did he intend to bequeath to her the mere interest and income to be derived from his real and personal property during her life? or did he, in addition to the income, intend to give to her the power of using such part of said property as might be required for her support? With some doubt and hesitation we have reached a different conclusion, as to the construction to be given to the above-quoted provisions of said will, than that arrived at by the learned trial court. In each of these cases cited by him, Weed v. Aldrich, 5 Thornp. & C. 105, and In re Blauvelt's Estate, 20 N. Y. Supp. 119, there was a bequest for life, and, after the death of the life devisee, and absolute disposal of the remainder. The clause disposing of the remainder, contained in the will under consideration,— ■“ n any of said real or personal property is left”—was not in either of the wills considered in those cases, and the distinction between such wills and the one set out in the answer herein is adverted to by the surrogate in the case last cited. He says :

“ The cases cited to sustain the construction that the widow might exhaust or appropriate the body of the estate in her use of the same are instances where words were used by the testator indicating that he contemplated the exhaustion of or appropriation by the life tenant of the body of the estate ; such as "in Thomas v. Wolford, 49 Hun, 145 ; 16 St. Rep. 764, where we find used the words, should there be any left to be divided among the children ■or their heirs’; in Flanagan v. Flanagan, 8 Abb. N. C. 413, @ the portion left of said remainder’; Simpson v. French, 6 Dem. Sur. 108, @ to do with said property as he shall deem best.”

In Thomas v. Wolford, 49 Hun, 145 ; 16 St. Rep. 764, the provision in the will construed was as follows :

“ After all my lawful debts are paid and discharged, I give and bequeath to my wife, Eliza J. Thomas, all of my real and personal estate that I may die possessed of, during her lifetime, and at my wife’s death the property, should there be any left, to be divided among the children or their heirs.”

Held that, under the provisions of the will, the wife had during life the power of disposition of the estate; the power to consume or dispose of it as might become expedient or necessary to secure for her this beneficial enjoyment; and that, upon her death, such estate as had not been consumed by her was devised to the children. This case was cited, and not disapproved, in Leggett v. Firth, 132 N. Y. 7-12; 42 St. Rep. 851. In Wells v. Seeley, 47 Hun, 109 ; 13 St. Rep. 239, the will provided as follows:

“All the rest and residue of my estate, both real and personal, I give and bequeath to my beloved wife, Emily R. Beardsley, to be held and used by her as she shall see fit and proper during the full term of her life ; and at her death, if any part of my said estate shall remain unexpended, then, and in that case, I give and bequeath such remaining portion to my said son, Willis S., and my said daughter, Helen P., in equal parts, each to each.”

It was held (page 116) that the widow had a life estate in the property, with power to use such portion thereof as she should deem proper for her support during life. In Flanagan v. Flanagan, 8 Abb. N. C. 413, it was decided that a gift to the widow of the use of all the remainder during her life, and the portion left of said remainder to be distributed to the poor of St. Peter’s Church, ■gave to the devisee for life a right to dispose of the fund during her lifetime. See, also, In re Williamson, 9 N. Y. Supp. 476; Smith v. Van Ostrand, 64 N. Y. 278; Campbell v. Beaumont, 91 id. 464; Leggett v. Firth, 132 id. 7; 42 St. Rep. 851; Colt v. Heard, 10 Hun, 189.

Under the above authorities, I think it must be held that Polly Wilber, by the provisions of her husband’s will, took a life estate in the real and personal property left to her, with the right to dispose of said property for her support during her lifetime; and hence that the defendant, under her conveyance, derived a valid title to the real estate in question. Unless the testator intended to devise to Ms wife such an estate and power, why shouM he direct his executor to divide the remainder after her death, “if any of said real or personal property is left.”- By these words he assumes that none of the real or personal property may be left to-, divide; that the property may be used up by the widow. These words indicate his intent that his widow might use and dispose of the body of the estate devised, as well as the income thereof.. Likewise, wh'en he authorizes his executor to sell his real estate, why does he add, “if any is left”? These words show that it was in the mind of the testator that the widow might dispose of the real estate during her lifetime.

We conclude that the judgment should be reversed, and the demurrer overruled, with costs in this court and the court below.

Herrick J., concurs. Mayham, P. J., not acting.


text:
    Patrick Fogarty, Resp’t, v. Adam Hook, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Trial—Direction.
    Where both parties request the court to direct a verdict and neither asks-to go to the jury, the court is authorized to find upon the questions of fact in the case.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Andrew J. Nellis (Borden J. Smith, of counsel), for app’lts; Clarence W. Smith, for resp’t.
   Putnam, J.

A careful reading and consideration of the evidence in the case'has satisfied us that a question of fact was presented as to whether the conveyance from Henry B. Noll to the plaintiff, under which the latter claimed title to the property which was the subject of the action, was fraudulent as against the creditors of Noll or otherwise. It cannot be held that the evidence conclusively established the fraudulent nature of the conveyances, as alleged by defendants. It was possible to find from the testimony the payment by plaintiff to Noll of a fair price for the property in question, a change in the possession thereof, and the good faith or the transaction. This question of fact, had either party so requested, it would have been the duty of the trial court to submit to the jury. But both parties requested the court to direct a verdict, and neither asked to go to the jury. It follows that the court was authorized to find upon the questions of fact in the case, and, as there was some evidence to sustain the finding made, it cannot properly be disturbed by us. See Kirtz v. Peck, 113 N. Y. 222; 22 St. Rep. 733 ; Provost v. McEncroe, 102 N. Y. 650 ; Schram v. Werner, 81 Hun, 561; 63 St. Rep. 340. The case stands the same as iif it had been submitted to the jury, and a verdict had been rendered for. the plaintiff. We conclude that the judgment should be affirmed, with costs.

All concur.


text:
    Richard B. Hoos, App’lt, v. Sarah Hempstead, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Appeal—Harmless error.
    A wrong ruling of the court in the admission of evidence is cured by a harmless answer.
    Appeal from a judgment, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.

      George Lawyer and N. B. Spalding, for app’lt; A. W. Gleason, for resp’t.
   Per Curiam.

The error of the court below, if any, in overruling the objections of the plaintiff to the question asked of the witness Salisbury, “Q. You never heard Mrs. Hempstead ask him to build that.?” (referring to a shed), was cured by the answer, the witness stating: “I am not positive about it. It was so long ago I could not say. I would not swear now whether I did or did not hear her ask him to build it.” If the court was wrong in his ruling, the plaintiff was not injured. Also, there was no error in excluding the testimony of the plaintiff as to the various conversations between him and the defendant in regard to the shed. The question whether or not plaintiff was employed by' defendant or her husband to build the barn to recover for the building of which this action was brought was, we think, one of fact, which the trial judge was compelled to submit to the jury and we are unable to see how the verdict of the jury can be disturbed. The only evidence showing that defendant’s husband employed plaintiff to build the barn was the testimony of the latter. His credibility was a question for the jury. Hodge v. City of Buffalo, 1 Abb. N. C. 356; Elwood v. Western Union Telegraph Co., 45 N. Y. 549; Gildersleeve v. London, 73 id. 609. The jury may not have credited the plaintiff’s statement, and hence reached the conclusion that the barn was built without any authority from defendant’s husband as her agent, or assuming to act as her agent. Defendant denied that she authorized her husband to act as her agent, or informed plaintiff that she had so authorized him. It was a question for the jury whether the plaintiff testified truly; also, whether she admitted that she had to pay for the barn, as plaintiff and Salisbury testified. There was no such conclusive evidence of the ratification by the defendant as required the trial judge to take that question from the jury. The latter from the evidence could have found that plaintiff erected the barn on defendant’s premises without any authority whatever from defendant or her agent.or any assumed agent. Such being the case, her subsequent renting of the premises on which the barn was erected would not, as a matter of law, constitute a ratification. We conclude that the judgment should be affirmed, with costs.

Mayhem, P. J., and Putnam, J., concur. Herrick, J., dissents.