text:
    Mary E. Riley, Resp’t, v. Ashbel W. Riley et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 26, 1894.)

    Evidence—Paeol.
    Where the consideration of an instrument is equivalent to, and in the nature of, a covenant on the part of the wife to relinquish her right of dower, it is not subject to modification by paroi evidence.
    Appeal from a judgment in favor of plaintiff.
    The plaintiff was the wife of the testator, who negotiated a sale to the Union & Advertiser Company of certain land at the price of $25,000. The plaintiff declined to execute a deed until the company agreed to pay, in addition to that sum, $2,500 to her for the release of her dower-interest in.the land. She then executed the deed, and the purchase money, including the $2,500, was paid to the husband. Thereafter he entered into an agreement with her, •of which the following is a copy:

      “This indenture, made this fifteenth day of Octobor, 1883,. between Ashbel W. Rilev, of the city of Rochester, N. Y., party of the first part, and Mary E. Riley, of the same place, party of the second part, witnesseth: That the said party of the first part, for and in consideration of the covenants and agreements of.' the party of the second part hereinafter mentioned, has demised and leased, and by these presents does demise and lease, unto the-said party of the second part, all those premises situate, lying, and being in the city of Rochester, county of Monroe and state of New York, known as 78^ Plymouth avenue, 80 Plymouth avenue, and 116 South Fitzhugh street; to have and to hold the said demised premises, with the appurtenances thereto belonging, unto the said party of the second part during the term of her natural life. It is-agreed that said party of the second part shall not enter upon the enjoyment of said demised premises, and the rents and profits-thereof, until the*death of the said party of the first part. It is covenanted and agreed by and between the parties hereto that said party of the first part shall enjoy the rents and profits of said premises, and pay all taxes, assessments, repairs, and other charges, if any, upon the same, until his death, and that thereafter, and until her death, said party of the second part shall enjoy said rents and profits, and pay all said taxes, assessments, repairs, and other charges, if any, as aforesaid. It is agreed that, if the said party of the second part shall remarry after the death of the said party of the first part, this lease shall thereupon terminate. The said party of the second part accepts the property mentioned in this lease in lieu of her right of dower which may now belong or afterwards accrue to her in any of the property of the said party of the first part. It is covenanted and agreed, by and between the-parties hereto, that all covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators, and assigns of the respective parties.
    “Dated this 15th day of October, 1883.
    “Ashbel W. Riley. [L. S.]
    Mary E. Riley. [L. S.]’r
    This action was brought for money had and received by the defendants’ testator for the use of the plaintiff, to recover the sum of $2,500, before mentioned, and interest; and the referee directed judgment accordingly.

      F. L. Durand, for app’lts ; Walter S. Hubbell, for resp’t.
   Bradley, J.

On a former review it was held that the action was not barred by the statute of limitations. 141 N. Y. 409. The only defense sought to be .made available on the last trial was that of alleged payment The referee found that the defendants’ testator agreed to sell to the Union & Advertiser Company a piece of real estate in the city of Rochester for the sum of $25,000 ; that the plaintiff refused to sign the deed unless she was paid the sum of $2,500 ; that thereupon the company agreed with the testator to pay him the sum of $25,000 for the premises, and in addition, to pay to the plaintiff the sum of $2,500 in consideration of the execution by her of the deed; that it was executed by both of them. The deed expressed a consideration of $27,500, and on March 31, 1882, was delivered to the grantee. The consideration, including such $2,500, was paid to Ashbel W. Riley, deceased. The defendants gave evidence (the question of its aclmissibility was reserved) tending to prove that afterwards the decedent desired to convey certain land in the city of Chicago, and, to induce his wife (the plaintiff) to join with him in the execution of the deed, he made with her the written agreement above set forth, demising to her certain premises in the city of Rochester, of date October 15, 1883, and that it was then understood between them that her claim for the $2,500 in question was included as part of the consideration for the estate granted to her by that instrument. The evidence so taken was stricken out by the court of the plaintiff’s motion, on the ground that it tended to vary the terms of the written instrument, and exception was taken. It is the general rule that a written agreement, complete it itself, is presumed to embrace within its stipulations the conclusion to-which the parties had arrived when it was made, and their prior and simultaneous negotiations on the subject are not admissible-as evidence to change or modify it. The written contract referred to needs nothing to render, it complete. The covenant of the decedent was the demise of the premises to the plaintiff for the period of her life following his decease, or until she should remarry. The plaintiff accepted the demise in lieu of her right of dower, upon the conditions of the grant.

The question is whether or not paroi evidence was admissible to prove that there was a further consideration than that mentioned in the written instrument. It was competent for that purpose, unless the consideration, as there expressed, rested in the covenant of the plaintiff. Since the case of McCrea v. Purmort, 16 Wend. 460, it has been the general rule in this state that the consideration clause of an instrument is open to explanation and modification by paroi evidence for all purposes except to defeat the legal effect of the contract and to vary the terms of its stipulations. In that case the consideration expressed was money ; and it was held that paroi evidence was competent to prove that,, instead of money, it was a quantity of iron at a stipulated price ; and Mr. Justice Cowen there said that, although there be an acknowledgment of a particular consideration, it is not “an objection to other proof of other consistent considerations.” That case could have been disposed of upon the principle that a receipt is only prima facie evidence of the payment acknowledged by it. In Murray v. Smith, 1 Duer, 412, the plaintiff had conveyed to the-defendants’ testator certain land by deed expressing a pecuniary consideration, and subject to the one-half of a mortgage covering; the premises. The acceptance of the deed did not create any covenant to pay the amount of the mortgage debt. The grantor having, by reason of his obligation to the mortgagee, been required to pay a deficiency arising from the foreclosure of the mortgage, brought action against the defendant to recover upon the of his as of the consideration of the conveyance to him, to pay half the amount secured by the mortgage. The question was whether paroi evidence was admissible for such purpose. In the opinion of the court, Mr. Justice Bosworth said: “ The law must be deemed to be well settled in this state that either party is at liberty to show, for any purpose -except to prevent its operating as a valid and effectual grant, that the consideration was different—greater or largér—than that named in it.” A similar case was presented in Taintor v. Hemmingway, 18 Hun, 458; 83 N. Y. 610, where, in holding that paroi -evidence was admissible to prove that the defendant, in taking the conveyance from the plaintiff, promised to pay a mortgage upon the premises, it was said, in substance, that the deed did not express the full consideration which the defendant, by the agreement undertook to pay; that the contract to assume and pay the mortgage was independent of the contract expressed and embraced in the deed; and that “the verbal agreement was in addition .thereto, and in no respect contradictory. It did not vary the terms of the contract contained in the deed, and was not merged therein.” In numerous cases the doctrine is repeated that the consideration clause in a written instrument is, as between the parties to it, open to explanation by paroi, and may be thus shown to be other or different than that expressed in it, for any purpose other than to impair the validity of the contract. Wheeler v. Billings, 38 N. Y. 263 ; Hebbard v. Haughian, 70 N. Y. 54, 59 ; Ferris v. Hard, 135 N. Y. 354, 363 ; 48 St. Rep. 518 ; Frink v. Green, 5 Barb. 455; Adams v. Hull, 2 Denio, 306. It would seem that the evidence offered was admissible unless it tended to vary or enlarge the terms of some stipulation of the parties, or one of-them, in the lease in question. The clause expressive of the consideration, and acknowledging receipt of it, in an instrument, and commonly known as the “consideration clause,” is only evidence of a fact, and as such is susceptible of explanation by paroi. In the instrument upon which the question arises in the present case, the clause is “that the said party of the first part, for and in consideration of the covenants and agreements of the party of the second part, hereinafter mentioned, has demised,” etc. The consideration of and following the grant of the life estate as expressed is “that the party of the- second part accepts the property mentioned in this lease in lieu of dower which may now belong or hereafter accrue to her in any of the property of said party of the first part.” The instrument was executed by both the parties to it. The consideration thus expressed is equivalent to, and in the nature of, a covenant on the part of the plaintiff to relinquish her right of dower, and is therefore not subject to modification by oral evidence. It seems that to permit paroi evidence to prove that there was a further consideration would have the effect to enlarge the plaintiff’s covenant, and to make it appear that it was intended to also embrace in the consideration for the demise the relinquishment of the claim which she, in this action, asserts against the defendants. Such would have been the practical effect of the evidence, if available for the purpose for which it was offered, and, as the consequence, the well-settled rule that paroi evidence is not admissible to vary the terms of a written contract would have been violated. Graves v. Porter, 11 Barb. 592. If these views are correct, the evidence was properly rejected. In thus holding, the doctrine of Murray v. Smith is not questioned. In that case there was no covenant on the -part of the grantee. The grant was made subject to one-half of the mortgage. The consideration clause was in the usual form. The acknowledgment of the receipt of a sum of money as the consideration of the grant concluded neither of the parties to it from showing the true character and amount of the consideration, that it was other and different from that stated in the deed, and that it was not .fully paid. This did not tend to vary or contradict, in any respect, the terms of the covenants in it, nor, as was there said, was such evidence inconsistent with the terms of the instrument. The rule applied in the Murray and Taintor Cases is within that of McCrea v. Purmort, and many others. As the relinquishment of the plaintiff’s claim in question was not embraced within the terms of the instrument, the judgment should be affirmed.

All concur.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    The People, Resp’t, v. Robert W. Buchanan, App’lt.

      (Court of Appeals,

      Filed February 26, 1895.)

    1. Witness—Re-examination.
    A witness may be examined by the party calling him upon all topics on which he has been cross examined, for the purpose of explaining any new facts which came out, even though the cross-examination has been as to facts not admissible in evidence; but the re-examination must be confined to the subject-matter of the cross-examination.
    3. Evidence—Homicide.
    Upon the trial of an indictment for murder in killing his wife, evidence is relevant to show that the formed intention of defendant to be possessed of the estate of his deceased wife was accomplished by securing the fruits of his crime.
    3. Witness—! 829.
    The protection extended by the statute to communications between attorney and client will not cover the revelations of confidences made to a friend, or to a lawyer in the presence of a friend.
    4. Same—Cross-examination.
    Where, on the cross-examination of a witness for the prosecution, statements made by him to reporters of his suspicions as to the defendant's guilt were brought out, it is proper to show, on re-direct examination, the reasons of the witness for such statements, and the source of his information on which they were based.
    5. Evidence—Homicide.
    Where it appears that a physician called to attend the deceased gave her a prescription to be taken in doses of one teaspoonful, and that an hour later the defendant gave her two teaspoonfuls of some liquid, the taste of which was bitter, it is competent, upon the theory of the prosecution that morphine was then given, to permit an experienced apothecary to show how the morphine could be combined with the prescription of the physician, that the taste would be bitter, and that it was necessary for the defendant to give two teaspoonfuls in order to dispose of that quantity of the drug.
    8. Same—Declarations.
    Upon such trial, declarations by the defendant during his married life, which reflected upon his wife, exhibited his feelings toward her or showed & desire to be rid of her, are admissible.

      7. Trial—Motion to strike out.
    Where the first count charges the act to have been committed by giving “a deadly poison called morphine,” while the second count charges its commission by giving “ a certain deadly poison to the grand jury unknown,” and the district attorney, in response to a request by the defendant, elects to go to the jury upon the second count of the indictment, a motion to-strike out all the testimony on the subject of morphine, is properly denied..
    8. Same—Verdict.
    Where, after the jury had agreed upon their verdict, one of their, num-her became suddenly ill, but, having improved, was brought in later in the. day and took his seat with his associates, and, upon the advice of the court,, the jury again retired and conferred, the verdict returned by them isl properly received.
    9. Hew triad—Separation op jury.
    The denial of a motion for a new trial, made upon the ground that there had been an illegal separation of the jury, is in the discretion of the court, where the proofs raise a question of fact.
    10. Same—Incompetbncy op juror.
    A motion for a new trial on the ground that a juror became mentally incompetent on the trial before the rendition of the verdict, is properly denied where, upon the conflicting^ the opinions of the experts, the facts stated in the affidavits and those within the observation of the court, it cannot be said that the moving party made out a case of mental incompetency in the juror.
    Appeal from judgment of the court of general sessions of the peace in and for the city and county of New York, entered upon a verdict convicting defendant of the crime of murder in the first, degree.

      Charles W. Brooke, W. J. O'Sullivan and Herbert W. Knight for app’lt; De Lancey Nicoll and John R. Fellows, for resp’t.
   Gray, J.

The defendant was indicted by a grand jury of the city and county of New York for the crime of murder in the first degree, in killing Anna Buchanan, his wife, with poison administered to her on the 22d day of April, 1892. The indictment charged the commission of the crime in two counts; the first of which stated that the defendant bad administered to the deceased “five grains weight of a certain deadly'poison called morphine,”' and the second of which stated that he fiad administered to her “a. certain deadly poison to the grand jury unknown,” etc. Being tried upon the indictment, the defendant was found guilty, by the verdict of a jury, of murder in the first degree. From the judgment entered upon that verdict the defendant has appealed to this court and it is our duty, under the statute, to review the facts, in order that we may become satisfied that the verdict was neither against the weight of evidence, nor against law and that justice - does not require a new trial of the issue. In the language of the statute, we are to “give judgment without regard to technical errors, or defects, or to exceptions which do not affect the substantial rights of the parties.” The responsibility and labor thus devolved upon the court are very great It devolves upon us to pronounce upon the sufficiency of the proofs and the substantial correctness of all the proceedings upon the trial,which preceded the rendition of the judgment of death. This responsibility is only sensibly lessened, when we can see that the verdict of the jury was based upon sufficient evidence and that the defendant had a fair and impartial hearing.

The examination of this very large record has been carefully made and a patient and conscientious consideration given to the facts elicited upon the trial and to the points made by the skillful counsel for the defendant, in his effort to procure a new trial. It is our judgment that nothing appears upon the record, which would justify us in reversing the conviction. The evidence upon which the defendant w'as found guilty is wholly circumstantial in it nature; but all the circumstances were pregnant with his guilt and combined to denounce him as the sole author of a crime by which his wife was deprived of her life. The evidence was abundant and satisfactory to establish the fact of her death having been caused by poison and not to have been the result of some natural disease. The endeavor to demonstrate the contrary was by no means convincing. While the.proof of a death from unnatural causes must rest upon the investigations and the opinions of experts and confusion may often result from the irreconcible character of their testimony, it is not so difficult in this case for us to disregard that given by the medical experts for the defense. The detection and punishment of a crime committed secretly and with precautions against a knowledge of it becoming possible thereafter, of necessity, justify, if not compel, the submission to the jury of every fact and circumstance, which may reasonably bear upon the act, or the motive for it The justification, of course, does not exist, if neither connection, nor illustration, can be seen in the facts offered to be proved. In People v. Harris, 136 N. Y. 423 ; 49 St. Rep. 751, we had occasion to consider the reasons which make the acceptance of a verdict, based on circumstantial evidence, satisfactory and the discussion need not be resumed here. In the present case, the judicial investigation is aided in a surer degree, than in the Harris case. In both cases the husband was charged with killing his wife with poison; but in the former the marriage relation was secret and the opportunity of the defendant less evident, while here the intimate marital life existed and there was the conspicuous fact in the case that the defendant was seen to administer to his wife at her bedside something, which the circumstances satisfied the jury, and which satisfy us, could not have been the medicine prescribed for her by the physician, but which was some part of the poison which caused her death.

In order to demonstrate that which is the primary fact to be established ; namely, that the deceased came to her death by poisoning, it will be of use to detail certain general and known facts. In April, 1892, the deceased was living with her husband, a practicing physician, at 267 West 11th street, in the city of New York, and was of the age of forty-nine or fifty years. Her habits were and had been temperate and her health was testified to, by those who had known her, as having been good for the previous fourteen years. On Friday morning, April 21, 1892, after eating a hearty breakfast, she was taken ill; feeling severe pains in her head and unable to stand up. She was placed upon a bed and Dr. McIntyre, a physician was called in at about eight o’clock; who found her complaining of excruciating pains in the head ami of a tightness about the throat, which made it difficult to breathe. She was nervous and apprehensive. Her temperature was normal, but her pulse was accelerated. His examination led him to believe the case to be one of hysteria and he prescribed, as a nervine, a small dose of bromide of sodium mixed with ginger syrup and water, to be'given in doses of one teaspoonful every two hours. At two o’clock of the afternoon he called again and, finding the symptoms aggravated, changed the prescription, by adding two drachms of chloral hydrate to the bromide ; the doses to be the same as before. An hour later, at about three o’clock, the defendant was seen to give his wife a dose of two teaspoonfuls of medicine. After taking it she reached for an orange and bit into it, or sucked from it, as though there was a bitterness of taste. She spoke rationally; but in ten or fifteen minutes she fell into a deep sleep. At seven o’clock she was found by Dr. McIntyre and another physician in a state of profound coma ; with the breathing stertorous, the respiration slow, the pulse very rapid, the face flushed, the skin hot and dry and the eyeball irresponsive to the finger touch. They treated her for possible idiosyncrasy to chloral; without restoring her to consciousness. Later in the evening the physicians returned and found the same condition. They concluded the deceased was suffering from cerebral apoplexy ; a conclusion reached by the exclusion of either uraemia, embolism, or narcotism from chloral; in part, because of statements by the defendant and, in part, as the result of diagnosis. The next morning she was found in the same condition of coma, with a high temperature, a flushed countenance, a warm skin and with the pupils of the eye normal, save a slight dilation in the right one. The case was treated as one of cerebral apoplexy. She died in the afternoon and was buried on Tuesday. Her body was exhumed forty-two days later, at the instance of the district attorney, and subjected to a medical examination. The body appeared to be wonderfully well preserved. The autopsy was performed by two skilled pathologists and revealed no cause for death in any lesion of the brain, or in any disease of the spinal cord, or of the various organs of the body. The examination of all the organs and of other matters taken from the body was made in gross and microscopically and no evidence was found of cerebral hemhorrage, or of any disease having existed which would account for the death. An examination was then had at the hands of experienced chemists, who subjected to an analysis the intestines and their contents, the stomach and its contents and the liver, being those portions of the body more easily revealing the presence of poisons. They applied as tests six re-agents, generally approved and accepted by chemists, as methods for determining the presence of morphine poison, and, in addition, a physiological test. The result of all the tests taken together was to-establish the presence of morphine to the extent of one-tenth of one grain. The physiological test was performed by injecting a portion of the residues of the viscera in a frog and by injecting fractions of a grain of morphine in other frogs of the same size, to get the comparative effect of the several injections. It was their opinion that a discovery of that amount of morphine indicated, under all the conditions, a dose of from four to five grains of morphine. The chemists also found a substance which was consistent with atropine, which is a preparation of the belladonna plant. It answered the chemical and physiological tests of atropine, except in one instance, and the failure' there was consistent with the presence of atropine ; inasmuch as that drug upon the application of the same re-agent did not reveal itself. Two physicians were then examined and in answer to a hypothetical question, which fully and fairly resumed the facts connected with the illness and death of the deceased and the subsequent pathological and chemical examinations of her body, they gave it as their opinion that she had died from narcotic poisoning ; the narcotics being morphine and atropine, or some other preparation of belladonna. In their opinion the symptoms of the morning of Friday pointed to atropine poisoning and from the afternoon on to a combined action of' that drug and morphine. One witness stated : “ The picture is of a modification of morphine symptoms, such as is known to be produced by atropine.” It appears from the evidence that the usual symptoms of morphine are modified by atropine and that there results a slowness of respiration, a dryness of the skin and the flushing of the face, the two latter of which are characteristic of atropine poisoning; while the coma was characteristic of the two poisons combined. In the opinion of these witnesses a dose of at least three grains of morphine must have been given. I should add that the embalming fluid injected into the body was found to contain neither morphine nor atropine.

As against the evidence produced by the People to prove death by poisoning, the defendant called a pathologist, who disagreed with the diagnosis as to the condition of the deceased on the Friday morning, and gave it as his opinion that she was suffering from hysteria and, in answ.er to the hypothetical question, said that she died from uraemic coma, or coma resulting from cirrhotic changes of the liver. He admitted that death could not have been from cerebral hemorrhage; but he thought that the People’s witnesses had mistaken a substance called ptomaine, which is a poisonous product of putrefaction, for morphine. Two chemists were, also, called as witnesses. One of these testified to the existence in bodies, after the lapse of some time, of these chemical products called ptomaines. He did not believe that the People’s chemists could have tested with any certainty for morphine, or atropine, with the impure residues of the viscera and that they must have mistaken the characteristic re-actions. The other witness criticised the method of the People’s chemists as useless and testified to the existence of a ptomo-atropine ; which is a ptomaine showing the same re-action that atropine does. To meet these criticisms the People’s chemists were re-called and gave further evidence in reply. One of them performed before the jury similar experimental tests to those applied to the residues from the viscera of the body and, apparently, with the result of sustaining his previous, testimony as to the characteristic or color re-action obtained. The issue between the expert witnesses for the prosecution and those for the defense, which the jury were to pass upon, was not, in my judgment, very difficult to decide. On the one hand they had the evidence given by two pathologists, who had actually examined the body with the most scrupulous and minute attention, that the condition of the body was one of remarkable preservation and revealed no cause for death in any disease of any of the organs, of the spinal cord, or of the brain. They had the evidence given by two chemists, skilled in toxicology, who had applied all the known and accepted tests for the discovery of the presence of poisons, that they had isolated one-tenth of a grain of morphine and had found a substance consistent with atropine and acting as atropine would under like conditions. Finally, they had the evidence given by two medical practitioners, who, upon the conditions disclosed by the evidence, in connection with the illness and death of the deceased and with the subsequent expert investigations conducted upon her remains, stated that the sensations and death of the deceased were consistent with and pointed •clearly to a poisoning by atropine and moiphine. The evidence -of the pathologists was explicit that death was not and could not have been, under the conditions disclosed, caused by uraemic, or •cirrhotic, coma and the jury were well warranted in relying upon the evidence of witnesses; all of whom were skilled and eminent in their profession. There was not enough doubt cast upon it in the evidence of the witnesses for the defense, for the pathologist had not seen the body and the two chemists'had not examined the •contents. If they criticised the tests or methods of the People’s witnesses and disbelieved their statements as to results obtained, their evidence did not, necessarily, subvert, nor shake, the People's proof; in part because of the theoretical basis of their opinions and in part because the subsequent examination of the People’s witnesses established, or tended to establish, the reliability of their previous statements as to chemical results.

It was sought to introduce an element of doubt into the case made by the People by evidence as to the existence of ptomaines in bodies in course of putrefaction. The discovery of these poisonous products of decaying, or dead, animal matter is recent and they are said to resemble the vegetable alkaloids. We may concede, as not unlikely, in the absence of suspicious symptoms preceding and attending the death of a person and where the chemical tests have been inexact or incomplete, that the charge of a death being caused by poison would be insufficiently borne out by the discovery of a substance, which, while responding to several •of the tests for morphine, or for atropine, would be equally consistent with the existence of ptomaines. In such a case the person charged with the crime mignt be entitled to the benefit of the doubt. But the facts were quite other here. We have the physical symptoms preceding death and the uniform results of approved and exhaustive chemical analysis. Professors Doremus and Witthaus, the People’s chemical experts, testified to their familiarity with these ptomaines from study and observation and that they could not have been mistaken in their conclusions as to the presence of pure morphine and of a substance resembling ■atropine. Professor Vaughn, the chemical expert for the defense, had testified that the color test for morphine would not be reliable in the presence of the impurities of the residues from the body; that the characteristic re-action of, pure morphine can be ■obtained only when it is in a pure state. He spoke of one well-known ptomaine, called indol, as giving the six re-actions of morphine in such a manner as not to be distinguished from morphine in impure solutions. Professor Witthaus, being re-called, applied the same test in his investigations to the ptomaine, called indól, and to morphine and, showing the contrasts between the re-actions of the two substances, testified again positively that the color obtained from the pure morphine was similar to that ultimately obtained in the tests applied to the residues from the body of the deceased. A circumstance may be alluded to as confirmatory of the statements of the expert witnesses for the prosecution, as to the discovery of morphine in the body. It appeared by the testimony of several witnesses upon the trial that the defendant had said to them that morphine would be found in his wife’s body. That statement was made when the exhuming of the body was in question and when he apparently sought to anticipate the finding of morphine by saying that his wife was a morphine eater. The examination and cross-examinatian of the experts were protracted and a generous latitude was afforded to the defendant’s counsel by the learned recorder; who did not err on the side of severity. The extended examinations of these witnesses probably had the merit of enabling the jurors to judge of the competency of the experts and of the accuracy of their evidence and to weigh the probabilities of the case; though, probably, more or less incapable of appreciating the details of the ■exhibition of scientific knowledge and tests, which was being given for their benefit and instruction.

Even if we had a doubt as to the cause of the death, we would not be justified in reversing the verdict of the jury, for there was an abundance and a preponderance of evidence to support their finding. Through the evidence describing the ■symptoms, the distinction between them and those of 'a disease suddenly developed became possible. If it is plain, then the verdict of the jury should not be disturbed, which pronounces in accordance with it and which is supported by the evidence of the autopsy and of the chemical analysis. The discussion upon this branch of the issue has been somewhat prolonged ; but it is justified by its gravity and the necessity of as- ’ suring ourselves that its determination adversely to the defendant was not arrived at without evidence which was clear and convincing. It was in the sole province of the jury to decide, upon the evidence, what was the cause of the death of the defendent’s wife and, in my opinion, their decision is not only supported, but could not conscientiously have been made otherwise.

The next question, then, which was to be determined by the jury, was whether the defendant was guilty of the charge of having administered the poison to his wife, which caused her death. This is an indispensable fact, which depended for its proof hereupon evidence of a circumstantial nature. The consideration of the question calls for a somewhat extended review of the facts-disclosed by the evidence.

The defendant was born in Nova Scotia, in 1862, and came, to New York in 1886, with his wife and a young daughter, to practice the profession of medicine. In the summer of 1890, he obtained a divorce from his wife. Later in the same year, he became acquainted with a woman in Newark, New Jersey, by the name of Anna B. Sutherland, whom he claims to have treated professionally. She was then some twenty years his senior in age- and was engaged in keeping a house of prostitution, or of assignation. According to his statements, she became infatuated with him and on November 26th, 1890, made a will, by the terms of which she gave all of her real estate to her husband (if any), at the time of her death and, in the event of her death unmarried, after small legacies to a sister and brother, she gave the whole residuary estate to her physician, the defendant. Three days later, she was married to the defendant. Twelve days after the marriage, she conveyed her Newark house and lot by deed to the defendant, in consideration of one dollar. , They resided after the marriage in West 11th street, New York city. The fact of the-marriage he endeavored to conceal, and for a long time denied it-to friends and companions. He represented that she was hjs housekeeper and that she was importuning him to marry her; but that: it would ruin him to marry a woman of her reputation. Dissent, sions arose between them and they became dissatisfied and wearied with each other. She resented his neglect and dissipated conduct. Towards the end of 1891, she wanted her property back and seems to have threatened to return to Newark to resume her former occupation. During the winter of 1891 and 1892, and in the following spring months, according to the testimony of several of his friends, the defendant expressed himself as unable to endure her variously stating that she was unbearable ; that she was “hounding him to marry her or to deed the property back ;” that he did not want her to go back and keep a house of prostitution, because-of the injury it would do him ;• that he would “dump the old woman," of the “old hag ;" that he had made up his mind to get. rid of her, “no matter what it cost;” that he would let the New York house and, if necessary, leave the country. In February he-commented, in the presence of several persons, upon Carlyle Harris not understanding his business and upon his leaving a trace behind; (Harris then having been tried and convicted for the poisoning of his wife). He made preparation for breaking up. housekeeping, by leasing the New York house.' About, and previously to, this time, the witness Macomber, with whom he appears to have been on most intimate terms of friendship, testified that the defendant said to him his wife had kidney trouble and would not live long; that she had threatened to poison herself and that be had told her to “help herself," as she knew where he kept the poisons. Though she was not taken ill until Friday morning, April 22d, and had been previously perfectly well, on Thursday he told Macomber that his wife was sick; that he thought Bright’s disease was developing and she would not get over the attack. At this time the defendant was in the habit of taking all his meals at Macomber’s restaurant. The deceased was suddenly seized with illness after her breakfast. Her previous good health was testified to by a witness, who had known her intimately for years, and he, and others who saw her j ust before her attack, testified to her healthful appearance. Though Dr. McIntyre, who was called in at eight o’clock on Friday, diagnosed her case as one merely of hysteria, the defendant told Macomber at breakfast, and again at noon, that she was worse and would not live twenty-four hours. Other witnesses testified that during the afternoon of Friday he had spoken of his wife, to the effect that she was about to die. In the evening of Friday, he exhibited articles of jewelry and manufactured a story that his wife had given them to him before witnesses, summoned in by him. On Saturday morning he told Macomber “ the old lady ” would not live the day out and in the afternoon, when she died, he took a walk with him and remarked that “ it looks as though Providence was smiling upon him; ” that “ she was going to quietly step out and he would avoid all trouble.” Turning to the scene of the sick room, we find Dr. McIntyre returning at two o’clock" to find the symptoms worse. The defendant told him he had given her the medicine regularly. He changed his prescription by the addition of chloral hydrate to the bromide and, having prescribed the same dose of one teaspoonful every two hours, left A little after three o’clock Mrs. Broclcway, bringing with her, at defendant’s request, a nurse, entering the sick room, saw the defendant give his wife two teaspoonfuls from a phial containing a liquid. Though the nurse could not state positively that she saw two teaspoonfuls given, it was the fact, afterwards corroborated out of the defendant’s own mouth ; who sought to explain it on the ground that all the teaspoons were packed up, previous to departure, and that the only teaspoon available was a small one of his child’s. It was subsequently proved, by the evidence of Mrs. Brockway and the nurse, that the teaspoon was of the usual size, and by the latter and a man who worked in the house, that there were other teaspoons about. Immediately after taking the medicine, the deceased was seen to make a wry face and to take up an orange and to bite, or suck it. In giving the second teaspoonful, the defendant’s hand shook, so as to spill some of its contents upon his wife’s neck. At the time of Mrs. Brockway’s visit, the deceased was able to talk rationally and to remark how well she had felt in the morning, before her sudden seizure. In ten or fifteen minutes she fell into a profound slumber, from which she never awaked. The defendant left the room hurriedly, after giving the dose to his wife and upon the entrance of Mrs. Brockway and the nurse, alleging important-business. He returned in an hour, felt her pulse and again went out. While in the house that time a man whom he had some time previously engaged to cart his effects over to ¡Newark, called to inquire about the job, and was told by the defendant that his wife was sick; that he did not believe she would get well, and his services would not be needed. In the evening when Doctors McIntyre and Watson, finding a continued state of coma, thought she might be idiosyncratic to chloral, the defendant volunteered the explanation that such was not the fact; for the reason that his wife had been under Dr. Janeway’s care, and that she had had three or four doses of eight grains of chloral each day. It was subsequently proved by the testimony of the only two doctors of the name of Janeway, that they had never treated, or prescribed for, any woman of her name. Again, upon the same occasion referred to, when, because of his statement, the physicians excluded narcotism from chloral and upon examination other causes and concluded in favor of cerebral hemorrhage, the defendant volunteered the further statement that the father of his wife had died of apoplexy. It was subsequently shown that he died of gangrene in the foot. The next day, Saturday, about four o’clock, the death occurred. Before the occurrence the defendant went out and did not return till the evening after the death. He then said to the nurse that he was going to Philadelphia in a late train to see his wife’s brother. It was during that afternoon’s absence that the walk and the conversation with his intimate, Macomber, took place, in which he had expressed himself about the smiles of Providence. In the evening of the Saturday, when he returned to Macomber’s, he told him “ the old lady ” was dead and he was going to a hotel for the night, rather than stay in the house with a corpse. On Sunday morning, about nine o'clock, he went to his house and gave the nurse to understand he had returned from Philadelphia and that his wife’s brother was a very sick man. Upon the return from the funeral the defendant, placing his daughter in one carriage, returned with three of his friends in another. He expressed to them his great relief at the death and stopped to drink in several saloons. A woman residing in a house at which he called, upon the return from the funeral, testified that he said to her that he had just buried his sister. She remarked to him that he “ was feeling pretty jolly over it,” and he replied, “ those things cannot be helped; we all have to die.” She saw him then try to embrace a woman, who was residing in the house. He made various statements to his friends, respecting his acquisition of property through his wife’s will, and conducted himself in a dissipated manner. After some days he went to Nova Scotia, where, within three weeks of his wife’s death, he re-married his first wife and returned with her to Hew York. He went to see his friend, Macomber, and spoke of the charges which had appeared in the “ World ” newspaper, that he had poisoned his. dead wife and had re-married his first wife. To him and to others he denied the re-marriage. In an interview with a reporter for the “ World” he characterized the report of his remarriage as absurd; denied that his deceased wife kept an assignation house, and concocted a story as to how he had met her; gave her age as thirty-six; said she died of cerebral hemorrhage and denied she was a morphine eater. Becoming alarmed by the newspaper charges, he spoke to two or three persons about going away till “the thing blew over.” He manifested the utmost uneasiness about the investigation and the exhuming of the body. He made preparations to leave the city under an assumed name and arranged with Macomber for information through a telegraphic code, in the event of the grave being opened. Upon one occasion he went with friends to the cemetery, to see if the grave had been opened, and mistaking his way, and coming upon one that was, he showed great alarm. He sought a residence for himself, his wife and daughter, under assumed names, in the upper part of the city. When it was suggested that he had nothing to fear from an investigation, he said that his deceased wife was a morphine eater, and that morphine would be found in her body and, coming so soon after the Carlyle Harris case, that he would be tried for his life. He even told a story of how he had caught his wife eating morphine. To his friend and companion, Macomber, upon an occasion, he admitted that his wife died of an overdose of morphine and that she was in the habit of taking belladonna for her bowels, which would obviate the usual effects of morphine. His explanation was, when asked why he did not tell that to the physicians, that they would report the case and there would be an inquest. He consulted lawyers about extradition treaties. To some friends he expressed the wish that he had cremated his wife’s body. It is clear from the evidence given by the great array of witnesses, called to testify concerning the defendant’s acts and declarations at various times, that he was in an apprehensive condition of mind and manifested the utmost dread of an investigation.

Very much more could be narrated from the record to exhibit the conditions of his mind, which, before his wife’s death, showed that he dwelt upon such an event and anticipated its occurrence, and, upon the happening of the event, showed, first, a great satisfaction, in committing various excesses and in immediately remarrying his divorced wife, and, subsequently, when the rumors arose about the sudden death, showed restlessness and fear, all being conditions quite incompatible with innocence. It is true that the defendant was examined in his own behalf and denied the commission of the act charged and more or less of the statements testified to as having been made by him. But he involved himself in a maze of statements, of such untruthful and incredible nature, as to justify the jury in discrediting him generally and especially when in conflict with those of persons, who, with the possible and not very important exception of the witness, Smith, had no apparent personal motive to procure his conviction. He admitted the untruthfulness of his statement that he went on the night of the death to Philadelphia, to see a sick brother of his wffe, or that she had a sick brother there, and justified it by the plea of a motive to conceal the facts about his wife’s relations. He said he went that night to a certain hotel in Newark, but could not remember whether he registered under his own, or a false name. Upon the production of the hotel register, he was unable to identify any signature as his own. His denial that he knew, previously to his marriage, that, his wife had kept a house of assignation, though immaterial, is incredible and is in contradiction of what several of his friends testified to. He said he had treated her for Bright’s disease before marriage and that afterwards she was several times treated by Dr. Janeway, in New York, for. kidney trouble. Both of the medical practitioners of that name in the city denied knowledge, or the treatment, of any such woman; whether under her former name of Sutherland, or that of Buchanan. He had spoken of her going to Bellevue Hospital, to find Dr. Janeway, and of her going as a dispensary patient against his wishes,' but the records of that hospital showed that no prescription had ever been put up for Dr. Janeway and that no patient of her name was on the books. He contradicted Dr. McIntyre’s testimony- as to the statement made by him, that his wife was accustomed to chloral. He also contradicted the testimony of one of his friends, with whom he was forced to admit he continued to be on good terms, that he had spoken to him in prison of his wife béing a morphine eater and of that being thé cause of her death. He endeavored to explain why he was giving his wife two teaspoonfuls of the mixture from the phial, on the Friday afternoon when seen by the two women who entered the room, and said it was a child’s small teaspoon and required being twice filled for the dose. He said all other spoons had been packed up. In these statements, as I have mentioned, he was contradicted by the nurse, by Mrs. Brockway and by the man who worked for him about the house. The testimony of the defendant, read in the light of all the evidence and of its own inconsistencies, induces the conviction that he was un-' truthful in most of its material statements. In one instance, the evidence that he had stated that his wife was a morphine eater and that morphine would be found in her body when exhumed, was corroborated by the testimony of Knight, a lawyer whom he was taken by Macomber to consult, in Newark. His. denial of the commission of the act charged is to be given its full weight, in view of the gravity of the offense and the penalty inflicted by the law; but the weight of the evidence and its whole effect are to not only confirm the conclusions reached by the jury, but, in my opinion, to make any other impossible. If we regard the chain of events from the time when, after the will made in favor of a husband, the defendant made the ill-assorted and degrading union with the deceased, along through their unhappy married life in New York, to her sudden seizure, in full health,, with symptoms singularly consistent with narcotic poisoning; with his inexplicable conduct during the seizure and continued after the death, first in debauchery, then in the re-marriage with his divorced wife, within three weeks, then in the exhibition of an apprehension of an investigation, followed by preparations for flight and a concealment under an assumed name—in all the facts of the case, we find a chain forged, which prevents the accused from evading the judgment pronounced upon him by the trial court.

Motives to commit the crime were not wanting; whether they lay in the desire to secure himself in the possession and enjoyment of the property of the deceased-; or in the desire to avoid the degrading exposure of his marriage with a woman of such a reputation. In the former case, the will gave the estate to the husband ; but it was revocable and revocation was not improbable after the dissensions between them. In the latter case, she threatened to go back to her house in Newark and to resume her former occupation. It is immaterial which was the actual motive. The existence of either suffices and every thing that could throw such light upon his acts as to reveal a motive was admissible.

In the presence of the grave consequences of the verdict, I have Sought to find the evidence of acts consistent with a probability of innocence; or some weakness in the chain of circumstances, which would warrant us in saying that some were at variance with the probabilities of guilt. I am not able to find either and I must advise an affirmance of the judgment, unless the learned recorder, who presided at this trial, committed some error thereat in his rulings, which, because prejudicial to the defendant, necessitates, in the interest of justice, the ordering of a new trial.

His charge was clear, full and satisfactory upon the facts and the law, so much so that the counsel for the defendant noted no exceptions to it. The exceptions taken to the rulings of the recorder upon evidence have all been carefully considered in the review of the case. A few of them, of sufficient importance to be passed upon, will be referred to.

The witness Smith, who had been an intimate associate and a partner of the deceased woman before her marriage with the defendant, was examined to show her excellent condition of health. Upon cross-examination it was sought to show that he had aided in the matter of the prosecution of the defendant from revengeful motives. He was asked if, after the woman’s death, he had communicated with the coroner and, upon his saying that he had, was asked if he gave him “some information about a will to Dr. Buchanan.” He said he did not know there was a will in existence, at the time. He was then further asked if he had suggested to the coroner “anything about his inquiring about poison,” to which he answered, no. Upon his re-direct examination by the district attorney, he was asked to state what he did say to the coroner; and he was allowed, over the objection of the defendant, to give the conversation. The ruling was not error. The object of the defense was to discredit the witness, by showing the existence of malign motives to revenge himself on the man who had supplanted him. If the defendant chose to open an inquiry as to a conversation between the witness and the coroner, it was proper enough and just that the jury should be placed in possession of what the conversation actually was. I understand the rule to be that a witness may be re-examined by the party calling him upon all topics on which he has been cross-examined, for the purpose of explaining any new facts which came out; but the re-examinatian must be confined to the subject-matter of the cross-examinatian. He may be questioned to show the meaning of his expressions, or of his motive in using them. 1 Starkie on Evid. *208 ; Clark v. Vorce. 15 Wend. 193, 196. Even if the cross-examinatian has been as to facts not admissible in evidence, the rule seems to be that the witness may be re-examined as to evidence so given. 1 Greenl. on Evid. sec. 468 ; 2 Phillips on Evid. 973; Blewett v. Tregonning, 3 Ad. & El. 554. In this case the additional reason exists that the request for the actual conversation, as to which the witness had been cross-interrogated, was proper, in order to rebut the inference suggested concerning the motives of the witness. The re-examination of a witness is, largely, in the discretion of the court. The proper limitations upon it are that it shall relate to the subject-matter of the cross-examination and bear upon the question at issue. He cannot be asked as to new matter. Powell on Evid. 529. The reasoning, with respect to the right of the prosecution to re-examine a witness as to matters opened up upon-his cross examination, is applicable to other exceptions. In the case of the witness, Macomber, the cross-examination has been directed, largely, to destroying the effect of his testimony and to impairing his value as a witness, by showing him to be unworthy in character for betraying his friend, and statements made to reporters of his suspicions as to defendant’s guilt were brought out. The cross-examination had taken a very wide range of subjects. The prosecution was justified in negativing the imputations, or inferences, the defendant might claim to be deduciblé from the facts elicited. It was competent to elicit an explanation of the reasons of the witness and the source of the information on which-his statements were based. Having entered upon that line of examination, the defense may not complain of its being pursued by the People, in order that the jury might be able to judge for themselves as to the character and motives of the witness. It all bore in some degree upon his character for credibility. So, when the defense brought out portions of a conversation between the witness and a man named Doria, in which the latter told of the defendant’s having seduced his (Doria’s) wife before their marriage, the People were at liberty to call for the whole conversation. It seems that Doria’s suspicions had become aroused about the defendant, from what he had heard him threaten, and he communicated them to Macomber. The defendant tried to show Doria was actuated by revenge, but they opened the door for the whole conversation.

Objection was taken to the introduction in evidence of the will of the deceased, made three days before her marriage with the defendant. It was, however, a piece of material evidence, competent and relevant upon the question of motive. Before marriage he was only a possible legatee; but upon marriage he would become the certain legatee, if she were to die without any change made in the will. In like manner, the deed of the Newark property, made to the defendant a few days after marriage, and the deed to Knight, made by the defendant in September, 1892, after his indictment for the crime, were competent upon the question of motive. The will showed the existence of an inducement to marriage. The deed, made a few days after marriage, showed the defendant’s desire to obtain the property. The deed after death tended to show the realization and consummation of the defendant’s scheme. The evidence was relevant to show that the formed intention to be possessed of the estate of his deceased wife was accomplished by securing the fruits of his crime. It is, moreover, difficult to see how the introduction of the deed could possibly prejudice him.

Exception was taken to the rulings of the trial judge, which permitted Macomber to testify to conversations had between the defendant and Knight, a lawyer in Newark, and Davison, a lawyer in New York. Communications between counsel and client are, as between themselves, protected from disclosure; but if heard by another, in whose presence they are made, the confidential character is gone. Jackson ex dem. Haverly v. French, 3 Wend. 337; Hoy v. Morris, 13 Gray, 519. The reason is obvious. A communication intended to be confidential should not be made in the hearing of a third person; unless the person stood in a peculiar relation of confidence; which was not the case with Macomber. He did not know of the crime and he' simply took the defendant to see a lawyer, because his friend was alarmed by the newspaper comments and charges. The protection extended by the statute to communications between attorney and client is, intended to cover those which the relator calls for and are supposed to be confided to the lawyer, to give him in giving his professional aid and advice. I am not aware of any extension of the rule, which would protect the revelation of confidences made to a friend, or to a lawyer in the presence of a friend.

The witness Ellison, an experienced apothecary, was permitted to make up the prescriptions given by Dr. McIntyre. He described its taste as being salty and then put four grains of morphine in a teaspoonful of the prescribed medicine and described it as bitter in taste. He showed that two grains of morphine were dissolved in one teaspoonful and the residue in a second teaspoonful. The evidence was revelant, in view of the testimony of Mrs. Brockway and the nurse, that they saw defendant giving his wife-some liquid from a phial; that upon taking it she made a wry face and bit, or sucked from, an orange, and that in a few minutes-she sank into a profound sleep, which ended in a state of coma. As the theory of the prosecution was that morphine was then given, it was competent to show, by one experienced in the art,, how the morphine could be combined with the prescription of the-physician ; that there would be no change in color; that the taste would be bitter, and that it was necessary for the defendant to give two teaspoonfuls in order to dispose of that quantity of the-drug.

The defendant insists upon the existence of error in many rulings of the recorder, under which Macomber and other witnesses; were permitted to give in evidence declarations by him during his-married life, which reflected upon his wife, or exhibited his feelings towards her, or showed a desire to be rid of her. It is argued that they had no bearing on the question of motive, and, as tesóme of them, that they were not made at the time of the alleged poisoning. The admissibility of such evidence was discussed in People v. Harris (supra). It was there said that “ proof of the existence of the element of motive is aided, in some degree, by showing what were the defendant’s relations and feelings towards his wife, as evidenced by his conduct and remarks when with others.” I think all such evidence is clearly relevant upon the question of motive and tends to rebut that strong presumption from the marital relation, which militates in favor of the husband when accused of the murder of his wife. The evidence was, also, admissible, which bore upon the defendant’s conduct at or about the time of death and afterwards. It showed his indifference to his wife and a gratification at being rid of her, which immediately displayed itself in ways of unbridled license and of singular disregard of decency.

The will, the precipitate and secret marriage with a woman of so unsavory a reputation and the deeding of the property soon afterwards, with the sudden death within eighteen months, were opening and'closing scenes in a drama, which required to be filled in by proof, in order to understand the parts played by the defendant and his wife and to enable the jury to judge of his innocent or guilty participation in the denouement. Any declarations or admissions by him, which would tend to exhibit how he performed his part as a husband, or to indicate his sentiments towards her, were properly admitted. If they showed a purpose to obtain her property, inaugurated by the marriage, a repugnance or indifference to her afterwards, which created a desire to get rid of her; or the final promotion of a purpose, (if it had not always existed), to destroy her life, in order to secure his freedom and the enjoyment of her property; they were material and relevant to the issue of the defendant’s guilt.

I think that no error was committed in ruling upon the sixty-three requests to charge, propounded to the recorder. After all the evidence was in and after the district attorney, in response to a request by the defendant, had elected to go to the jury upon the second count of the indictment, a motion was made to strike out all the testimony on the subject of morphine, which was the substance of the charge in the first count The motion was properly denied. The first count had charged the act to have been committed by giving “ a deadly poison called morphine; ” while the second count charged its commission by giving “ a certain deadly poison to the grand jury unknown.” All the evidence, which would fit the charge in the first count, would be competent and relevant under the second count and tend to prove its charge. The chemical experts testified that they were employed to examine the corpse “ for the purpose of detecting the presence of poisons, in any form of poison.” They did discover the presence of morphine and of a substance acting as atropine would act, as the result of an analysis of the residues from the body and by-certain characteristic re-actions from tests applied to them. The medical practitioners, upon the hypothetical question, gave it as their opinion from the symptoms that death was caused by the use of the two drugs morphine and atropine. It is true that morphine poisoning was originally suspected as the cause of death ; but, when the grand jury found the indictment, the chemists had not Teported the result of their investigations into the cause of death, and the grand jury, obviously, could not charge with exactness. They, therefore, charged in separate counts the commission of the same act, in different ways. It can hardly be said that it was •charged in a different manner; for the substance of the charges was the administering of. poison “and the evidence to prove the particular charge would be relévant to establish the general charge. The charge in the second count resumed that of the first. An indictment would not be affected because the proof established the commission of the crime by different means than what had been charged. That has long been the rule. In Hale’s Pleas of the Crown, 2d vol. 185 it is said: “If A be indicted for poisoning B, it must allege the kind of poison ; but if he poisoned B. with another kind of poison, yet it maintains the indictment for the kind of death is the same.’’ And see People v. Colt, 3 Hill, 432.

After the jury had retired, an incident occurred, which has been made much of and which constituted the basis, in part, of a motion for a new trial. The jury retired in the afternoon of April 25th. In the evening of the day following, they were taken over to a hotel for their dinner. Paradise, one of their number, was taken suddenly ill and fainted. A physician was called in, who found him first unconscious and then delirious. He had him removed to another room, where he treated him professionally. A report of the occurrence was made to the recorder, who sent for and examined the attending physician, in the presence of the district attorney and of the defendant’s counsel. He gave a description of what had taken place and of whac he had done. He gave his opinion that the attack had been caused by the mental strain and he thought the juror might be able to come to the court after a while. Later in the evening, the juror, having improved, was brought over and took his seat, with his associates, in the jury Box. It appeared that they had agreed upon a verdict before the illness, but the recorder thought it inadvisable, under the circumstances, to then receive their verdict, advising them to again retire and confer. They did so and shortly returned with their verdict. Upon the facts, as they were made to appear, there was nothing to warrant the trial judge in refusing to receive the verdict-

Subsequently, however, upon the hearing of the motion for a new trial, certain other facts were made to appear, which we have considered carefully, with a view of ascertaining whether they furnish any sufficient reason for believing that the verdict of the jury was not properly or fairly reached. One branch of the motion was based on the ground that there had been an illegal separation of the jurors. Affidavits were read, showing that upon the removal of the sick juror frqm the room, in which he and his fellow jurors were dining together, the other jurors separated; some running to and from the sick man’s room and others going in other directions and alone. In opposition were read the affidavits of the jurors and of the court officers; to the effect that the jurors were always in charge of the officers; that none of them were ever alone and that no communication was had with them by any person in reference to the case. Upon these proofs, it was discretionary with the trial court to order a new trial, or not, and with the exercise of its discretion we will not interfere. Code Crim. Proc. § 465, subd. 3. It was a question of fact and'I think the judicial discretion of the,learned recorder was well exercised, in- having regarded the involuntary separation of the jurors ¿s working no possible prejudice to the defendant. The second branch of the motion for a new trial was-based on the ground that the attack, which the juror, Paradise,, suffered from, was an expression of a generally deranged judgment and that his mind could not have been clear and sound, or capable of judgment, for some hours before and after. In support of that ground, the affidavits of several distinguished physicians and alienists were produced and read. It was their opinion, upon, the statement of the physician, who attended the said juror, of the juror’s son and of others, detailing what had occurred that the attack was epileptic in character. They, in substance, thought it evidenced a confirmed epileptic condition and indicated a mental disturbance, which must have existed for several hours and must have rendered his mental action unreliable and valueless. In opposition to these opinions, were read affidavits by several other physicians, expert in mental diseases, who had made a personal examination of the juror and who gave it as their opinion that there was no perceptible indication of epilepsy, or of paresis, and that he was in full possession of his faculties. Upon Paradise’s statement, as to his past life, they were of the opinion that he had never suffered from epilepsy or insanity. They thought the symptoms of his attack were those of nervous exhaustion and of hysteria, induced by the close confinement and the long-continued staain upon-him in the performance of his duties of a juror. His own affidavit was read, denying ever having,,suffered from epileptic attacks. He narrated the occurrences in the jury room and stated that after the first ballot, when he had voted “ not guilty,” he had upon each subsequent ballot voted “guilty” and that the jury had agreed upon their verdict before they went to the hotel for their meal.- He stated that he felt well when he came back to court and was able to deliberate. He gave' the facts about his past life and be showed that the day after the conclusion of the trial he had gone away an business and remained away till June, being in the . full possession of his health and faculties. The affidavits of physicians, whohadknown and attended himin the past, stated that he bad never manifested any epileptic symptoms, or any form of ner-vous disease. Other affidavits by his employer and by his fellow jurors, were read to show his mental competency.

The recorder, in denying a new trial, had before him the conflicting opinions of the experts, the facts stated in the affidavits and those within his own observation. It cannot be said that the defendant made out a case of mental incompetency in the juror. While the opinions of the physicians, secured by him, seemed to give support to his theory of a mental or nervous disease in the juror, which incapacitated him to deliberate or confer upon his case, they were not based upon any personal examination, but. were premised upon the statements given them. In view of the evidence as to his physical and mental condition upon actual ex-animation, as to the facts of his past life and of his condition for weeks after the trial, the learned recorder could not well have decided otherwise than he did and I think we must agree with him that the opinions of the experts for the People was warranted by the evidence and that those of the defendant’s experts were not.

The elaborate opinion, which he delivered upon the denial of the motion for a new trial, contains a conscientious and able review of the question and is perfectly satisfactory.

I find no other questions demanding our consideration and, after the most patient consideration of the extended briefs of ■counsel and of this extraordinarily large record, covering a trial of over a month and the subsequent proceedings upon the motion for a new trial, my conclusion is that the defendant had a just and fair trial and that we should affirm the judgment of conviction appealed from.

All concur.

Judgment affirmed.


author: McAdam, J.

text:
    John Schliermann, by Guardian, etc., App’lt, v. Hammond Typewriter Company, Resp’t.

      (New York Superior Court, General Term,

      Filed March 4, 1895.)

    1. Master and servant—Risks.
    When a servant enters upon an employment which is from its nature hazardous, he assumes the usual risks of the service, where they are apparent to ordinary observation.
    3. Same—Minority.
    In such case, the mere fact of his minority does not .render the master liable for the risk, if he has sufficient capacity to take care of himself and knows and can properly comprehend and appreciate the risk.
    3. Same—Statutory duty.
    It is only where an injury is directly due to, and approximately caused by, a failure to observe a statutory duty, that it may be held, as matter of law, that its breach is evidence of negligence.
    Appeal by plaintiff from judgment entered on direction of trial judge dismissing complaint.

      D. A. Spellissy, for app’lt; Benedict & Benedict, for resp’t.
   McAdam, J.

The plaintiff sued to recover §25,000, damages for injuries sustained on August 12, 1891, at the factory of the defendant in this city, where he was employed to assist in its work. On the day in question, by the direction of the defendant’s superintendent, he was working on a milling machine, on which there was a circular saw for cutting material used by the -defendant in its business. At the time of the injury the plaintiff was nearly eighteen years of age, and had worked in other factories for about three years before entering the employ of the defendant, but this was his first experience in a factory such as the defendant’s.

The plaintiff testified that the first week he was in the defendant’s employ he worked at winding ribbons; he was then taken upstairs to the foreman and put to work on a milling machine, grinding iron used for typewriters; after working for some time at milling the miller was taken off and a circular saw, four or five inches in diameter,-put in its place while he operated the machine he had to draw the carriage to the saw, and draw it back, and reach over the saw to stop the machine by means of a shifter on the far side of the machine, which was used to stop the machine and to make it go; when he wanted to stop the machine he pushed the shifter tó throw the belt off; in order to stop or make the machine go he had to reach directly over the saw, and in trying to stop the machine his sleeve was caught by the saw and one of his arms drawn in, in consequence of which he was severely injured, was in a hospital over four weeks, and, finally, the arm had to be taken off. The plaintiff also testified that when he was put to work on the milling machine he was instructed in its use; that the superintendent and foreman were there when he commenced to work, and showed him how it was to be done; that they told him to look out, and not hurt himself—not get against the saw. So that want of instruction and warning cannot be imputed to the defendant in the effort to prove negligence against it.

At the conclusion of the testimony defendant’s counsel moved to dismiss the complaint on the ground that the accident was a risk which the plaintiff assumed when he entered defendant’s employ. The motion was granted, and from the judgment entered upon this direction the appeal is taken.

Plaintiff’s counsel asked to go to the jury on the question of defendant’s negligence ; also on the ground that the defendant did not comply with the provisions of the statute regulating the employment of children in manufacturing establishments. L. 1886, chap. 409. ‘Both of these requests were denied, and the plaintiff insists that the exceptions thereto are well taken.

We think the case properly disposed of. It has been repeatedly held that when a servant enters upon an employment from its nature hazardous, he assumes the usual risks and perils of the service, where they are apparent to ordinary observation. Liability to accident from the saw was in this instance obvious and patent. It was not a concealed or unsuspected danger, but one as well-known to the workman as to the employer. When a servant is set to dangerous work, the mere fact of his minority does not render the master liable for the risk, if the servant has sufficient capacity to take care of himself, and knows and can properly comprehend and appreciate the -risk. Shear. & R on Neg., sec. 218; Bailey on Master’s Liability, 114, 115. This principle has been reiterated in a number of cases.

In Hickey v. Taafe, 105 N. Y. 26; 6 St. Rep. 426, the plaintiff, a young girl between fourteen and fifteen years of age, was employed in a steam laundry. Her duty was to attend to the ironing of collars and cuffs by passing them between two heavy iron rollers. No one instructed her as to the danger of getting her fingers caught between the rollers, but the danger was perfectly apparent, and her own testimony showed that she appreciated it. The machine was in no way defective, although, as with the saw here, its use necessarily involved danger. “ The duty to furnish. safe machinciy,” says the court, “ means of course machinery that is safe considering the use for which it is designed, for otherwise very little machinery could be operated. A steam engine may be built in the best manner, of the best material, etc., and yet there is the possible danger inherent in the nature of the machine itself, as operated by such an element, which may lead to an explosion that could not be foreseen or guarded against.” In working on the machine, plaintiff’s hand was caught and crushed, and the court of appeals held that she could not recover, because it was one of the risks incident to the employment which sh§. herself assumed. Although there had been no instruction given her as to the danger, the court says (p. 37): “ She knew, therefore all that the instructions of the defendant would have imparted to her. This was enough. Being of an age to appreciate, and having full knowledge of the danger, and at the same time being competent to perform the duty demanded of her, the fact that she was a minor does not alter the general rule of law upon the subject of employes taking upon themselves the risks which are patent and incident to the employment.” See also Walsh v. Commercial Steam Laundry Co., 63 St. Rep. 461.

Buckley v. Gutta Percha & R. Man’g Co., 113 N. Y. 540 ; 23 St. Rep. 518, is to the same effect; plaintiff being about twelve years old, but working about a machine whose danger was apparent.

“ It is idle to say that the plaintiff did not know as well as a grown man -that if he placed his fingers between the revolving cogs he would be injured,” observes the court.

In Ogley v. Miles, 139 N. Y. 458; 54 St. Rep. 711, a boy nearly sixteen years of age was put to work upon a buzz saw. He had been at work a couple of days only. He had had some practical experience at other factories, but he was not instructed as to the working and the dangerous character of the buzz saw. The court said that “ it appeared without contradiction and from the plaintiff’s own evidence that he knew of the operations of the machine; that he had sufficient experience at other factories to enable him to, and that ha did fully understand its practical working, and he knew he had to be careful in regard to his hands coming in contact with the saw, for if he did, he knew they would be badly cut.” And therefore the court hold that “ within the cases decided in this court, the plaintiff should have been nonsuited.”

To substantially the same effect see Rikel v. Ferguson, 25 St. Rep. 960; Oszkoscil v. Eagle Pencil Co., 25 St. Rep. 925; Murphy v. Mairs, 6 St. Rep. 42 ; Reardon v. N. Y. Con. Card Co., 51 Sup’r Ct., 134; Costello v. Judson, 21 Hun, 396; Beatty v. Hessman, 2 City Ct. R., 10 ; Atlas Engine Works v. Randall, 100 Ind., 420 ; Shanny v. Mills, 66 Me., 420; Sjorgen v. Hall, 53 Mich., 274; Richards v. Rough, id., 212; Sullivan v. India Man. Co., 113 Mass., 396; Ciriack v. Woolen Co., 146 id., 182; Gillett v. Giuld, 144 id., 601; Rock v. Indian Orchard Mills, 142 id., 522 ; Murphy v. Am. Rubber Co., 159 id., 266; and Hale v. Cheney, id., 268.

Upon a given state of facts and circumstances showing an injury directly due to and proximately caused by a failure to observe a statutory duty, it may be held as matter of law that the breach of the statutory duty was evidence of negligence. 16 Am. & Eng. Encl, of L., 422, 423. But we find nothing in the act of 1886 (chap. 409) in regard to the employment of children, or in any other statute to which our attention has been called that imposes any duty to the plaintiff which the defendant neglected to discharge or which aids the plaintiff in any manner in his alleged cause of action. Ryan v. Buchanan, 37, Hun, 425; Hickey v. Taaffe, 99 N. Y. 204; Hayes v. B. & D. M. Co., 102 N. Y. 648.

If the dangers to which the plaintiff was subject had not been apparent to and fully understood by him, or if they had been latent and he had not been advised of the risks and warned of the dangers, different questions would have been presented. The employment being a lawful one, and the plaintiff having met with an accident which might have befallen anyone similarly employed, he cannot cast the consequences of it upon the master, however unfortunate the circumstances may be or however much they are to be regretted.

We find no error, and the judgment entered on the direction must be affirmed, with costs.

Sedgwick, C. J., and Beekman, J. concur.


author: Adams, J.

text:
    William Brigden, as Executor, etc., Pl’ff, v. Charles H. Osmun, Def’t.

      (Supreme Court. Cayuga Circuit,

      Filed January, 1895.)

    New trial—Against evidence.
    The verdict was held not to be warranted by the evidence, and the error to be one which should be corrected by the trial court even though no exception was taken to the charge, and no request for a direction made.
    Motion by plaintiff for a new trial upon the minutes.

      S. Edwin Day, for the motion ; Dean & Horton, opposed.
   Adams, J.

This case is certainly a most remarkable one in whatever aspect it is viewed. The circumstances upon which the plaintiff relies to maintain his action are exceptional and no less so are those when in support of this action. The action is brought to recover moneys which the plaintiff claims are owing the estate of his deceased wife from the defendant who was her former husband from whom she has obtained a divorce, and the amount claimed is to reimburse the wife’s estate in part, for moneys which she in her lifetime, or the plaintiff since her death was compelled to refund to the estate of the farmer’s father in compliance with an adjudication declaring her guilty of a fraud, which, it is virtually conceded was conceived and executed by the defendant. The evidence adduced upon the trial discloses several other facts which tend to stamp the case as decidedly unique, but it is hardly necessary that they should be considered upon this application. It appears however that the trial of the action was quite as unconventional as were the proceedings already averted to, for the case was submitted to the jury with the tacit, if not open assent of both parties, upon an issue which was not raised by the pleadings, although it was the only one which presented any question of fact. Moreover it now appears that the jury was permitted and instructed to consider such question upon a clear misapprehension of the evidence, to which instruction, not only was no exception taken by the plaintiff’s counsel, but the attention of the court was not even directed to the error which it is now claimed was committed.

The uncontradicted evidence discloses that upon the 30th July, 1880, the plaintiff’s testatrix and the defendant entered into an agreement by the terms of which the defendant undertook to prevent the probate of the will of Milo Pierce, the father of the testatrix. The expenses of all proceedings and litigation made necessary by this undertaking were to be borne by the testatrix and the defendant was to receive one-half of the net avails by way of compensation or reward for his services in her behalf. The undertaking proved a successful one to this extent at least, that a compromise was effected between those interested in the estate of Milo Pierce, in consequence of which plaintiff’s testatrix received several thousand dollars in excess of what she would have been entitled to had her father’s estate been disposed of in accordance with the terms of his will. Unfortunately however, one of the heirs was a minor at the time the settlement and distribution were made, and upon arriving at her majority, instead of ratifying the same, she repudiated it and brought an action which resulted in the adjudication hereinbefore mentioned. Upon the determination of this action, plaintiff’s testatrix was compelled to restore the sum of $1,800 in satisfaction of her share of the judgment entered therein, and after her decease, the plaintiff was obliged to pay over to the administrator of the estate of Milo- Pierce, the additional sum of $643.23 to make good his wife’s proportion of the amount required by such administrator to meet some unexpected debts and expenses of the estate, and it is to recover one-half of thes'e two sums that this action is brought. Upon the trial considerable evidence was introduced tending to show that whatever claim or right Mrs. Brigden may have had to demand contribution from the defendant, she had in her lifetime either settled with him or forgiven him the debt, and upon this issue the jury found in favor of the defendant. The case was tried upon the supposition that both of the sums hereinbefore specified were .paid over or refunded by Mrs. Brigden in her lifetime. Indeed, the plaintiff’s own witness, Kellogg, was asked by plaintiff’s counsel how much Marania, the testatrix paid to make good the deficiency in the Milo Pierce estate, and he answered, “She paid one-fifth $643.23.” Acting upon the assumption that this was literally true, the jury was instructed, in substance, that plaintiff was, entitled to recover both amounts if anything, and that on the other hand if the defendant had been released from any claim for contribution, by Mrs. Brigden in her lifetime, such release embraced the sum last mentioned as well as the larger sum, and such construction was apparently acquiesced in by plaintiff’s counsel. But the attention of the court' is now directed to the fact that this sum was not paid until after the decease of plaintiff’s testatrix, and that when the witness Kellogg testified that Marania paid one-fifth, he doubtless meant that the estate paid that amount, because at the time it was paid she was dead and therefore could-not have paid it in person. This being the case as it unquestionably is, it necessarily follows that through a misapprehension of the testimony of the witness Kellogg, by both court and jury, a verdict has been rendered which is against the evidence, because it is quite impossible to give to such evidence a construction which would have warranted the jury in reaching the conclusion that the release or discharge of any claim which existed against defendant in favor of his former wife, would operate to include any which might thereafter arise in favor of her estate.

In life agreement of December 13th, 1880, which was partici.pated in, and executed by, defendant as attorney for 'bis wife, it-was provided that each of the beneficiaries should pay one-fifth of any deficiency which might arise in the settlement of the estate of Milo Pierce. It would seem therefore, that the plaintiff was-not only bound to make good the share of his wife in whatever deficiency might exist, but. that in view of the defendant’s contractual relations with his wife and with her co-beneficiaries, as-well as with the estate of her father, he was also justified in calling upon him to contribute his proportional part of such share, or one-half thereof.

It is quite possible that some adequate defense to such a claim might be furnished upon another trial, when the question is fairly raised, but none has been suggested as yet; and it may be that evidence can be furnished which will warrant the inference that Mrs. Brigden in her lifetime intended to release the defendant from any claim for contribution which might thereafter arise, as-well as from that which already existed, but as has been suggested, no such inference can fairly be drawn from the evidence as it now stands. There is not an intimation that any further demand from the estate of her father was anticipated when she released the defendant, and therefore neither court or jury can say that such a demand was within the contemplation of her release. But, on the contrary, the inference might be drawn with equal propriety that had she known there was an additional sum to be-paid in order to balance up her indebtedness to the estate, she would have insisted upon the defendant’s contributing some portion of the entire amount instead of releasing him from the payment of his quota of the eighteen hundred dollars.

In whatever view may be taken of the case, but one conclusion can be reached, and that is that the verdict is not warranted by the evidence and the error is therefore one which should be corrected by the trial court even though no exception was taken ta the charge, and no request made for a direction. Lucus v. McEnerna, 19 Hun, 14; Kelly v. Frazier, 27 Hun, 314; Smith v. Aetna Insurance Co., 49 N. Y. 211. But this also seems to be a cáse where it is peculiarly appropriate that, as a condition of obtaining a new trial, the plaintiff should pay the costs of the former one. Bailey v. Park, 5 Hun, 41; Kelly v. Frazier, supra.


text:
    Charles Schreiber, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (New York Superior Court, General Term,

      Filed March 4,1895.)

    1. Municipal cobpobation—Liability.
    For error in judgment in the plans or details for the drainage of lands and streets by sewers and the like, or in under-estimating the public needs, no action will lie against the municipality.

      2. Same—Consent.
    Consent, given by a municipal corporation to do a lawful act, implies that it is to be done in such a manner as to save the public from danger and the municipality from liability.
    8. Same.
    Such corporation does not insure its citizens against damage from . works of its construction, and is liable only for failure to exercise reasonable care and vigilance.
    Appeal by defendant from judgment entered on verdict in favor of plaintiff, and from order denying motion for new trial.

      Wm. H. Clark and W. A. Sweetser, for app’lt; E. Hassett and D. F. Calahan, for resp’t.
   McAdam, J.

The plaintiff, a market gardner, sued the municipality to recover $4,000 damages sustained from an overflow of water on his vegetable garden, July 30, 1889. He recovered a verdict for $2,500, and the defendant appeals.

The ground of liability as alleged in the complaint is, “ that on or about the said 30th day of July, 1889, a certain drain running through 165th street, owned by and under the control of defendant, and in charge of servants and employees of the defendant, has been negligently, improperly and defectively constructed, and which having been negligently left in an improper, unsafe and defective condition, after notice, became clogged up on account of its defective construction or unrepaired condition, or both, and the sewerage and water therein contained or which would have properly passed through said sewer, were said sewer and drain in perfect condition, overflowed on, in and through plaintiff’s said premises, to wit: the lands leased to him between 163rd and 165th streets and Fleetwood and Railroad avenues in said city, and rendered useless the crops of vegetables growing on said lands and belonging to the plaintiff.”

The overflow, it is claimed, was caused by the inadequacy or clogging-up of a drain leading from the plaintiff’s land to a sewer erected by the defendant. On the other hand, the defendant insists that the drain was put partly over private property and connected with the Webster street sewer by the New York & Harlem Railroad Co., at its own expense, although under the supervision of an inspector appointed by the city to protect its property interests. The drain seems to have been made necessary by the depression of the railroad tracks under legislative authority (L. 1887, chap. 721), whereby the former means of drainage of plaintiff’s land, through a sluiceway under the tracks, was destroyed. If this be so, no liability would seem to attack to the municipality for such acts of the Railroad Company designed to meet a condition created for its own benefit.

But assuming for the purposes of this appeal that the drain was, as the plaintiff contends, put in by the defendant, then the question of the city’s liability must be determined by the law regulating the construction of public works by municipalities, to which we will presently direct attention.

It is apparent from the complaint, the evidence offered, the claim made by plaintiff’s counsel during the trial, and the charge of the court, that the recovery was had not only for the consequences of obstructions in the drain and neglect of its condition, but the defective construction in the first instance as well. Plaintiff's witness, Mr. Guión, a civil engineer, attributed the overflow principally to the fact that the eighteen-inch pipe which constituted the drain in question was not sufficient to carry away the water from the territory tributary to it; he also ascribed it to the circumstance that it had no strainers in front to prevent the admission of boards, refuse, and the like, and to what may be termed another error of construction—that there were curves which impeded the more rapid progress of the water and allowed the boards and refuse entering the drain to clog it up. This question of defective construction was also submitted to the jury by the trial judge as an element of liability on the part of the city. Such submission was, in our judgment, error. No fault was found with material or workmanship, but with the general plan of the work itself, and that alone.

Municipal provision for the drainage, of lands and streets by sewers and the like is of a judicial nature, requiring the exercise of deliberation and discretion in determining their necessity, requisite capacity, location, etc., and for error of judgment in the plans or details or in under-estimating the public needs, no action will lie against the municipality. Mills v. City of Brooklyn, 82 N. Y. 489; Barton v. Syracuse, 36 N. Y. 54; McCarthy v. Same, 46 N. Y., 194; Hines v Lockport, 50 N. Y., 236; Nims v. Mayor, 59 N. Y., 500; Smith v. The Mayor, 66 N. Y. 295; Byrnes v. Cohoes, 67 N. Y., 205 ; Lynch v. Mayor, 76 N. Y., at p. 63 ; Urquhart v. Ogdensburg, 91 N. Y., 69; Seifert v. Brooklyn, 101 N. Y., 141; Turner v. Newburgh, 109 N. Y., 301; Stoddard v. Saratoga, 127 N. Y., 261; 38 St. Rep. 683; Barrett v. Trustees, 135 N. Y., 436; 48 St. Rep. 462.

If we are to assume that the city built the drain, we must also assume (there being no evidence to the contrary) that it was built according to the plans adopted by the public authorities at the time ; and there is nothing in the record which takes the question of faulty construction out of the principles established by the cases cited, under which no liability on the part of the defendant was made out.

Even if the municipality is to be held to have assented by the presence of its inspector to the laying of the drain by the Railroad Company, its liability for faulty construction would not under the present proofs have been greater than if it had built the drain itself. Consent given by a municipal corporation to do a lawful act implies that it is to be done in such a manner as to save the public from- danger and the municipality from liability. Village of Port Jervis v. First Nat. Bank, 96 N. Y., at p. 557.

The drain seems to have answered every purpose prior to the time of the injury complained of, when an unusually heavy fall of rain caused an unexpected overflow. The defendant had no notice before this that the drain had not been properly constructed, or was insufficient for ordinary purposes, and it is not liable for the casualty, Smith v. The Mayor, 66 N. Y. 295; Hart v. Northern Liberties, 35 Pa. St., 324. Nor had the defendant prior to the overflow such notice of any obstruction in the drain as imposed on the municipality any duty it might have performed in time to have obviated the consequences which ensued. A municipal corporation does hot insure its citizens against damage from works of its construction, and is liable only for failure to exercise reasonable care and vigilance. Hunt v. The Mayor, 109 N. Y. 134; 15 St. Rep. 62; Jenney v. Brooklyn, 120 N. Y., 164; 30 St. Rep. 877.

We think the verdict cannot be sustained on the grounds upon which it was rendered,—faulty construction and neglect to remove obstructions; and the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick C. J., concurs; Beekman, J., concurs in result.