source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    CHARLES H. PHELPS, Plaintiff in Error, v. THE PEOPLE, Etc., Defendants in Error.

      Vorgen'y — indictment for — sufficiency of— mria/nce —public offices —false enti'ies in boohs of account in — when forgery at common law — when under statute — false entry in whose handwriting — intent to defraud.

    An indictment alleged that on the 31st day of August, 1873, there was a book of accounts kept in the office of the treasurer of the Stale of New York, called a ledger, and also sometimes called a bank ledger, in which said book of accounts there was an account between the people of the State of New York and the Mechanics and Farmers' Bmik of Albany, an incorporation incorporated under the laws of the State of New York, to the tenor following:
    Mechanics and Farmers’ Bank.
    (Following this in the indictment were various items of account.)

      “ That Charles H. Phelps, late of the First ward in the city of Albany, aforesaid, on the 31st day of August, 1873, at the city of Albany and county of Albany, aforesaid, with intent to defraud the said Mechanics and Farmers' Bank of Albany, did willfully, maliciously and feloniously make a false entry in the said book of accounts so kept in the office of the treasurer of the Stale of New York, by which a demand in favor of the people of the State of New York against the said Mechanics and Fm-mers' Bank of Albany was increased by the sum of $200,000, by falsely, willfully and feloniously writing in the aforesaid book of accounts, and in the said account, between the people of the Slate of New York and the said Mechanics and Fm'mers' Bank of Albany, under the aforesaid last item or charge, and on the left side thereof, the letters, words, figures and characters following :
    Aug. | “ | “ “ |- 200,000 | 00
    so that the aforesaid account between the people of the State of New York and the said Farmers and Mechanics' Bank of Albany, after such false entry so% as aforesaid, willfullly, maliciously and feloniously made therein, by the said Charles PI. Phelps in the said book of accounts so kept in the office of the treasurer of the State of New York, was to the tenor following,” etc.
    Evidence offered thereunder was objected to on the ground that the account was alleged to be with the Fm'mers and Mechanics' Bank, while the proof was of an account with the Mechanics and Fm'mers' Bank. A motion was also made to direct the jury to acquit on these counts. The indictment was sustained.
    On the production of the ledger on the trial, it was claimed by the prisoner’s counsel that an item set forth in the indictment as Nov. 28, “ “ * * * 125,000, was Nov. 18, “ “ * * * 125,000.
    The judge charged the jury that, if this item was in fact written November eighteen, and if the prisoner was thereby misled in preparing his defense to the indictment, they should acquit him. Held, that as this item was not, and did not affect, the false entry the charge was sufficiently favorable to the prisoner.
    When objection is made to the admission in evidence of an instrument in writing, on the ground of variance, a question is presented for the decision of the court, and before the question can be determined, the court must first decide what the figures in the written instrument are.
    The intention of the provision of the statute (2 R. S. [m. p.], 673, § 34) in regard to forgery, was to protect the books of account in certain public offices against false entries, whether the entries be or be not such as, between individuals, would be evidence against the person charged thereby.

      Semble, that at common law a false entry made by a clerk in his employer’s journal, stating the cash received at less than the actual amount is forgery.
    The statute does not contemplate that the false entry must purport to be made in the handwriting of some person, other than the one making it.
    The plaintiff in error had taken the money of the State, and thereafter made a false entry in the books of account of the State Treasurer. Held, that the judge properly left it with the jury to say whether this false entry was made with intent to defraud.

      Writ of error to the Court of Oyer and Terminer, in and for the county of Albany, to review a conviction of the plaintiff in error of forgery in the third degree, for making a false entry in a book of accounts, kept in the office of the State Treasurer.
    Among the other counts in the indictment were the following:
    FIRST COUNT.
    City and County or Albany, ss. :

    The jurors for the people of the State of New York, in and for the body of the city and county of Albany, being then and there sworn and charged, upon their oath,
    Present, that Charles IT. Phelps, late of the First ward, in the city of Albany, on the 31st day of August, in the year of our Lord 1873, at the city of Albany and county of Albany aforesaid, with intent to defraud the Mechanics and Farmers’ Bank of Albany, an incorporation incorporated under the laws and statutes of the State of New York, did willfully, maliciously and feloniously make a false entry in a book of accounts, commonly called a ledger, kept in the office of the treasurer of the State of New York, by which a demand in favor of the people of the State of New York against the said Mechanics and Farmers’ Bank of Albany was increased in and by the sum of $200,000, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.

      And the jurors aforesaid, upon their oath aforesaid, do further present, that Charles Ii. Phelps, late of the First ward in the city of Albany aforesaid, on the thirty-first day of August, in the year of our Lord one thousand eight hundred and seventy-three, at- the city of Albany and county of Albany aforesaid, with intent to defraud the said Mechanics and Farmers’ Bank of Albany, did willfully, maliciously and feloniously make a false entry in the said book of accounts so kept in the office of the Treasurer of the State of New York, by which a demand in favor of the people of the State of New York, against the said Mechanics and Farmers’ Bank of Albany was created for the sum of two hundred thousand dollars, by falsely, willfully and feloniously writing in the aforesaid book of accounts, and in the said account between the people of the State of New York and the said Mechanics and Farmers’ Bank of Albany, under the aforesaid last item or charge, and on the left side thereof, the letters, words, figures and characters following:
    Aug. | ££ | ££ ££ | 200,000 [ 00
    so that the aforesaid account between the people of the State of New York and the said Farmers and Mechanics’ Bank of Albany, after such false entry so as aforesaid willfully, maliciously and feloniously made therein by the said Charles H. Phelps, in the said book of accounts so kept in the office of the treasurer of the State of New York, was to the tenor following:
    (Here was inserted a copy of the account as altered.) Against the form of the statute in such case made and provided and against the peace of the people of the State of New York and their dignity.

      W. J. Hadley, for the plaintiff in error.
    The court erred in receiving the entry alleged to be false, in evidence under either of the first forty-eight counts of the indictment. (2 East P. C., 975, § 53; 1 Chitty Or. Law [5 Am. ed., by Perkins], 233; 3 id., 1039 b ; 3 id. 1041; 2 Buss, on Crimes [4 Am. ed., by Sharswood], 359; Wharton Cr. L. [3d ed.], 174, 281, 283, 587; People v. Kingsley, 2 Cow., 522; Oom. v. Houghton, 8 Mass., 107; see, also, 1 Bishop Cr. Pro. [2d ed.], §§ 553, 559, 560, 561; 2 id., §§ 403, 404, 405, 406; Bex v. James Lyons, 2 Leach [3d London ed.], 681, 696.) Each of the, last forty-eight counts purports to set forth the account according to its tenor, both before and after the false entry was made. The word tenor binds the pleader to the strictest accuracy. (Wharton’s Am. Cr. L. [3d ed.], 588, 589; 3 Ohitty Cr. L. [5th Am. ed. by Perkins], 875, 875 a; 3 id., 1039 b ; 1 Bishop Cr. Pro. [2d ed.], §§ 485, 490, 491, 559; 2 id., § 416; 2 Whar. Cr. L. [7th ed.], § 1474 a.) The account was not on the face of it, and did not purport to be, after such false entry, an account with the Farmers and Mechanics’ Bank. (Rex v. Reading, 2 Leach [3d ed.], 672; Rex v. Gilchrist, 2 id., 753; 2 East P. C., 981, et seq. [chap. 19, §§ 56, 57, 58].) Nor can this averment be rejected as surplusage. It may have been unnecessary. But the pleader has made it a part of the description of what the forged instrument was, after the false entry was made. (The People v. Jones, 5 Lans., 340; Wharton’s Cr. L. [3d ed.], 291, citing United States v. Howard, 3 Sum., 12; Oom. v. Atwood, 11 Mass., 93; Oom. v. Tuck, 20 Pick, 356-364; State v. Noble, 15 Me. [3 Sliep.], 476 ; Com. v. Hope, 22 Pick., 1; U. S. v. Brown, 3 McLean, 233; see, also, 3 Starkie’s Ev. [2d Am. ed.], 1529, et seq.; 1 Chitty Cr. L. [5th Am. ed.], 233; Com. v. Stow, 1 Mass., 54; Com. v. Stevens, 1 id., 204; 2 Bishop Cr. Pro. [2d ed.], §§ 415, 416; 1 Gr. Ev., § 65 ; The People v. Jones. 5 Lans., 340.) There was a clear, fatal variance between the indictment and proof. Each of the last forty-eight counts contained this entry :
    Nov. | 28 | “ “ “ | 125,000 |
    The entry in the ledger is:
    Nov. | 18 | « “ “ | 125,000 |
    An inspection of the ledger will show the entry to be of the date of November eighteenth. The suggestion of the learned judge, that this item of November eighteenth forms no part of the false entry itself, does not answer the objection. It was a substantial variance between the account described and the one offered in evidence, and it is submitted must be fatal to the prosecution. (Reading’s Case [3d Lond. ed.], 2 Leach Cases in Cr. L., 672; Lyon’s Case, 2 id., 681; Gilchrist’s Case, 2 id., 753; 2 East PL Cr., 981, 982, 983, 984, chap. 19, § 56; Roscoe’s Cr. Ev. [5th Am. ed., by George Sharswood], 510, 511; 1 Bishop Or. Pro. [2d ed.], §§ 485, 490, 559; 2 Bishop Cr. Pro., §416; ü. S. v. Hardy-man, 13 Pet., 176; Com. v. King, 9 Cush., 287; Rastall v. Stratton,
      1 Hy. Bl. Rep., 49; The People v. Jones, 5 Bans., 340; 3 Gr. Ev., § 65.) It was both necessary and indispensable, that a copy of this account should be set out according to its tenor. {Hunter’s Case [3d Bond, ed.], 2 Beach Gr. Gas., 711; Mason’s Case, 2 id., 548.) Booking at this entry, unaided by the previous items, the court would be wholly unable to judge whether it was an entry of which forgery could be committed under the statute. {People v. Warner, 5 Wend., 272.) The false entry could not, by any legal possibility, prejudice or in any way affect any person, body or corporation, in his estate or property, and could not be made the foundation of any legal liability. It could not possibly defraud any one, and is not forgery under the circumstances and proofs in this case. (4 Bl. Com., 247; 2 East PI. Or., 840; 3 Gr. Ev., § 103; 2 Bishop Or. B. [5th ed.], § 523.) It is submitted, that neither the rights of the bank, nor of the people can, by any possibility, or in any manner, be legally prejudiced, or in any way affected by the entry. It is like the forgery of a will devising land, having but two witnesses, when three were required. Because it could not defraud any one, it was held not to be forgery. (Wall’s Case, 2 East PI. Or., 953, chap. 19, § 45.) Or forging a bill of exchange void on its face. {Moffat’s Case [3d Bondon ed.], 2 Beach, 483.) The intention to defraud must exist in fact, as well as in law. {Peg. v. Hodgson, Dearsley & Bell Or. Cas., 3 ; see, also, People v. Shall, 9 Cow., 778; People v. Pitch, 1 Wend., 198; People v. Galloway, 17 id., 541; People v. Stearns, 21 id., 409, 413; People v. Wilson, 6 Johns., 320; People v. Harrison, 8 Barb., 560; Cumimgham v. The People, 11 N. T. S. O. [4 Hun], 455; Pex v. Wavell, Moody Or. Cas., 224; Peg. v. Marcus, 2 Carr. & Kir., 356; 61 Eng. O. E., 354; Ex parte Winsor, 6 Best & Smith [Q. B.], 528; S. C., 10 Oox Or. Cas., 118; State v. Young, 46 N. H., 266; Hammond’s Dig., chap. 1, § 2, p. 102; Pex v. Knight, 1 Salk., 375 ; 1 Bishop Or. Baw [5th ed.], §§ 572, 748 ; The King v. James Lyon [3d Bond, ed.], 2 Beach, 681; see, also, 2 East PI. Or., 933, chap. 19, § 36; Toshack’s Case, 1 Denison Or. Oas., 493; Bills v. The Com., 8 Casey [32 Penn.], 529.) But the principle of this Pennsylvania case is denied in a case subsequently decided in New Hampshire. In the New Hampshire case, it is distinctly held that a man does not commit forgery who makes a false charge in his own book of account. (The State v. Young, 46 N. H-, 266-270; Ex parte Wrnsor, 6 Best & Smith [Q. B.], 528; S. C., 10 Cox Cr. Cas., 118; 2 Bishop Cr. Law [5th ed.], § 586.) The court erred in refusing to charge that, upon the. whole facts in this case, the prisoner is' not guilty of the crime of forgery. (People v. Shall, 9 Cow., 778; People v. Fitch, 1 Wend., 198; People v. Galloway, 17 id., 540; People v. Stearns, 21 id., 409, 413 ; People v. Wilson, 6 Johns., 320 ; Ounningham v. The People, 11 N. Y. S. C. [4 Hun], 455 ; People v. Harrison, 8 Barb., 560 ; Reg. v. Marcus, 2 Car. & Kir., 360; 61 Eng. C. L. B.; 1 Bishop Cr. Law [5th. ed.], §§ 572, 748; State v. Young, 46 N. PL, ,266.) Also in refusing to charge that the prisoner cannot be convicted under this indictment, for the reason that the making of such false entry had no legal tendency whatever to injure or defraud either the people of the State of New York, or the Mechanics and Farmers’ Bank. (People v. Harrison, 8 Barb., 560; People -v. Oady, 6 Hill, 490; Reg. v. Marcus, 2 Oar. & Kir.,'354 [marg.J, 356 ; 1 Bishop Cr. Law [5th ed.], §§ 572, 748; 2 id., §§ 523, 533, 543, 586, 599; People v. Galloway, 17 Wend., 540; People v. Shall, 9 Cow., 778; People v. Fitch, 1 Wend., 199.) Also in refusing to charge that, if the law presumes an intent to defraud from the fact of making the alleged false entry, yet, in this case, that inference of an intent to defraud cannot be drawn, because, from the whole proof, it is apparent that neither the Mechanics and Farmers’ Bank of Albany, nor the people of the State of New York, can, by any possibility, be defrauded by such entry, and which is alleged to be false and fictitious. (2 Bishop Cr. Law, §§ 543, 599, and authorities before referred to.) Alsu, in refusing to charge, that the prisoner cannot be convicted under any or either of the first forty-eight counts in the indictment, for the reason, that the entry which is therein charged to be false and fictitious, is not set out in words and figures, or any sufficient description thereof given, and that no sufficient reason is given in any or either of those counts, why the same is not so set out or described. (2 East PL Or., 975, 985, §§ 53, 58; 1 Chitty Cr. L. [5th Am. ed., by Perkins], 233; 3 id., 1039 b, 1040, 1041; Rex v. Lyon [3d London ed.], 2 Leach, 681; People v. Kingsley, 2 Cow., 522; Oom.Y. Houghton, 8 Mass. 107; People v. Warner, 5 Wend., 272.)

      John M. Bailey, district attorney, Henry Smith and Nathaniel G. Moak, for the defendants in error.
    The ancient strictness in regard to criminal pleading has been greatly relaxed. (.People v. Bennet, 37 N. Y., 120, 121; Low v. People, 2 Park. Crim., 40, 41; People v. Rynders, 12 Wend., 431, 432; Holmes v. People, 15 Abb. Prac. Rep., 159.) The old forms were devised to oust the defendant of the privilege of clergy, and need not be followed. (People v. Rynders, 12 Wend., 431.) And have been expressly abolished by the statute which provides : “ Section 52. No indictment shall be deemed invalid, nor shall the trial, judgment or other proceeding thereon be affected. * * * By reason of any other defect or imperfection, in matters of form, which shall not tend to the predjudice of the defendant.” (2 R.' S., 728, § 52 ; 2 Edm. St., 751; Tomlinson v. People, 5 Park., 320; 1 Whart. Cr. Law, §§ 216-218; Com. v. Hall, 97 Mass., 570; Fralieh v. People, 65 Barb., 51; see, also, Tomlinson v. People, 5 Park., 313, 319, 320.) The facts were amply pleaded and the indictment good. {People v. Loop, 3 Parker’s Crim., 559; Haskins v. People, 16 N. Y., 344, 347,348; Quinlahv. People, 6 Parker’s Crim., 9; Low v. People, 2 id., 37; People v. Rynders, 12 Wend., 431; Holmes v. People, 15 Abb. Prac., 154; Wilson v. People, 5 Parker, 178; Rosekrans v. People, 5 N. Y. S. 0., 467, 475; People v. Clements, 26 N. Y., 197, 198.) When the facts showing a certain conclusion are pleaded, the pleader is not obliged to allege the conclusion. It is'sufficient that the fair import of the charge be alleged. {Rex v. Sommerton, 7 Barn. & Cress., 463.) The indictment was proper, and valid in form. {Barnum v. The State, 17 Ohio, 717; ‘Warren’s Ohio Crim. Law, 515; Biles v. Com., 32 Perm. St., 529; People v. Rosekrans, 5 N. Y. S. C., 474, 475; Ream v. Commonwealth, 3 Serg. & R., 207; Arch. Cr. Pr. .& PI. [17th Eng. ed.], 592; Commonwealth v. Williams, 9 Mete., 273.) The false entry was a forgery at common law, independent of the statute, and the prisoner could have been convicted without the statutory provisions. {Rosekrans v. People, 5 N. Y. S. C., 472, 473 ; 2 Bish. Crim. Law [5th ed.], §§ 596, 597.) The making of a false entry in the journal of a mercantile firm, by a confidential clerk and book-keeper, with intent to defraud his employers, is a forgery at common law. Such forgery may consist in a false addition of the amount of cash received from bills receivable. {Biles v. Commonwealth, 32 Penn. St., 529, 532-536, 537, 538 ; Reg. v. Smith, 9 Cox Cr. Cas., 162, 165; 2 Wbart. Cr. Law [7th ed.], § 1431.) It was proper to charge the offense in various forms. The right to do so is well settled; it was within the discretion of the court, as to whether it would restrict the evidence to any particular set of counts, or compel the prosecutor to elect under which he would proceed. {Davis v. People, 56 N. Y., 95, 101; La Beau v. People, 33 Plow. Pr., 69; Nelson v. People, 5 Park., 39; People v. White, 55 Barb., 606, 611; Osgood v. People, 39 N. Y., 449, 451; Earn v. People, 8 Wend., 210, 211.) The defendant having been convicted on all the counts, if there was a single good count the conviction was valid and will not be reversed, no matter how many bad ones there were. {People v. Davis, 56 N. Y., 95, 100; Crichton v. People, 6 Parker’s Grim., 364, 366 [Ct. Appeals]; S. O., 1 Keyes, 344; 1 Abb. Ot. Appeal Dec., 470; Guenther v. People, 24 N. Y., 100; People v. Gilkinson, 4 Park., 26; People v. Stein, 1 id., 202; La Bern v. People, 33 How Pr., 70; Eraser v. The People, 54 Barb., 306, 308; 1 Bish. Cr Proc. [2d ed.], § 1015; 3 Whart. Cr. Law [7th ed.], §§ 3208, 3209.) It is the duty of the court, in a criminal case, to decide a question, as a question of law, when there is no conflict in the evidence or dispute as to the facts. (United States v. Susan B. Anthony, 11 Blatch., 209-212, and cases cited; Peoples. Bennet, 49 N. Y., 137; Commonwealth v. Magee, 12 Cox’s Grim. Cases, 549; Biles v. Commonwealth, 32 Penn. St., 537.) It is not necessary to conviction that the entry should be made in a book of original entries. {Barnum v. The State, 15 Ohio St., 717, 720, 721.) The books were of a public character and evidence per se. {Ream v. Commonwealth, 3 Serg. & B., 207.) These books, therefore, are recognized by law, because they are required by law to be kept, because the entries in them are of public interest and notoriety, and because they are made under the sanction of an oath of office, or at least under that of official duty. (1 Greenl. Ev., §§ 483-484; Ream v. Commonwealth, 3 Serg. & Bawle, 207.) An entry made by a public officer, iu the discharge of his official duty, in a book which he is bound to keep as a record of his proceedings, is admissible in evidence to prove his performance of the acts to which it relates. It is still a presumption of law that the entry was made by him in the proper discharge of his duty, and if mistake or fraud is alleged, the proof lies upon the opposite party. {Bissell v. Hamblin, 6 Duer, 512, 513, 514.) Being books of a public character, and the offense being one against the public, it was not necessary that the prisoner should, in fact, gain any thing, or the public lose any thing, by the false entry. (2 Bish. Or. Law [5th ed.], §§ 596, 597, 602, 603.) Tiie statute does not require that the false entry shall produce actual loss or injury. It. is sufficient that it be made with intent to defraud. The intent is to be inferred from the act itself. It is sufficient that persons were liable to be prejudiced by giving credit to the instrument. (Paige v. People, 3 Abb. Ot. Appeals Dec., 439, 447, 448; Commonwealth v. Starr, 4 Allen, 301, 304; Commonwealth v. Jacobs, 9 id., 275 ; 2 Whart. Or. Law [7th ed.], § 1493.) It is a malicious act, in contemplation of law, when a man willfully does that which is illegal, and which, in its necessary consequences, must injure his neighbor. (5 O. & P., 266, note; 2 Russ, on Crimes, 575; Corn. v. Snelling, 15 Pick., 340; TJ. S. v. Tcvvntor, 11 Blatch. 378-379.) If, by any possibility, any one might have been defrauded or injured by the false entry, the crime of forgery was perpetrated. (People v. Rathbun, 21 Wend., 509, 521 ; People v. Stearns, id., 409, 413-418; 2 Whart. Or. Law [7th ed.], § 1493; Reg. v. Feeny, Armstrong, Macartney & Ogle Rep., 193.) Actual fraud is not a necessary ingredient of the offense. (People v. Stearns, 21 Wend., 418, 419; 2 Bish. Or. Law [5th ed.], §§ 531, 532; 2 Whart. Or. Law [7th ed.], §§ 1444 b, 1431, 1493.) This was no variance. But, if so, it was not a material one; tlite mistake clearly appeared by the count itself, and was properly disregarded under the statute cited in point first, and the authorities there cited. {Real v. People, 55 Barb.,'552 ; 42 N. Y., 270; see, to same effect, Crichton v. People, 1 Abb. Ot. Appeals Dec., 470, 471; Miller v. People, 52 N. Y., 304; Wilson v. People, 5 Park. Grim., 179, 180; People v. McGinnis, 1 id., 391; 2 R. S., 798, § 52; The People v. Treadway, 3 Barb., 470, and cases cited; see, also, People v. Treadwcuy, 3 id., 473, 474; People v. Phelps, 5 Wend., 10; People v. Warner, 5 id., 271; Tuttle v. People, 36 N. Y., 436; May v. The State, 14 Ohio, 466; O'1 Neil v. The State, 48 Ga., 66.) It was for the court, and not for the jury, to determine what the figures were, and its decision was conclusive. (1 Bishop Or. Proe. [5th ed.], § 338; Commonwealth v. Davis, 11 Gray, 4, 8, 9 ; Commonwealth v. Riggs, 14 id., 376-377.) It was proper to prove, by persons familiar with the prisoner’s handwriting, what the figure was. (Dubois v. Baker, 30 N. Y., 361.) As the court could not have directed an acquittal, nor the jury have acquitted on that ground, there was no error, to the prejudice of the prisoner, in the court submitting to the jury the proposition it did, and such submission is no cause for reversal. (People v. Gonzales, 35 N. Y., 60.) The entry claimed to be mistakenly given, was no part of that forged, and the mistake, if one, was, therefore, no part of the forgery. (1 Wliar. Or. Law [7th ed.], §312; State v. Givens, 5 Ala., 747; Perkins v. Com., 7 Grat., 651, 654; TislioFs Case, 1 East Pep., 181, note; S. 0., more fully, 2 East PL Or., 925.) An indictment for uttering a forged promissory note need not set forth the date of the note. (Com. v. Ross, 2 Mass., 373; Buekland v. Commonwealth, 8 Leigh [Ya.], 732, 736 ; Huffman v. Commonwealth, 6 Pand. [Ya.], 685.) If it be doubtful what the word is, the court may, if it chooses, instead of determining what it is, leave that'question to the jury. (Turpin v. State, 19 Ohio St., 540, 545; U. S. v. Hinman, Baldwin’s O. O. Pep., 393, 394.) Evidence tending to prove any fact constituting an element of a crime charged in an indictment is competent, although it may tend to prove the prisoner guilty of some other crime. (Weed v. People, 56 N. Y., 628; Copperman v. People, 3 N. Y. S.C., 199; affirmed, 56 N. Y., 591; Rex v. Moore, 2 Carr. & Payne, 235 ; Reg. v. Briggs, 2 Moody & Pobinson, 199.) The point that the indictment should have charged an intent to defraud “ the State of New York” and not “ the people of the State of New York,” was not well taken. All civil suits in favor of the State are required or allowed by statute, to be brought in the name of the people of the State of New York. It is because of this provision that civil suits are so brought. (2 P. S., 552, § 13; 2 Edm. St., 573.) But the title is still in the State — the corporation. (People v. Bennett, 37 N. Y., 126.) It is true that the State is the corporation, the people the corporators. (2 Story on Const., §§ 1679-1686.) The governor is authorized to employ counsel to assist the attorney-general in suits prosecuted against or in behalf of “ this State.” (1 R. S., 165, § 15; 1 Edm. St., 164.) The State is technically the corporation ■— the sovereignty. “ The people of this State ” is frequently interchangeably used for the term “ this State.” (.People v. Bennett, 37 N. Y., 126, 127,128, 129 ; Texas v. White, 7 Wall., 721; Collector v. Day, 11 id., 124; State of New York v. State of Conn., 4 Dallas, 1; 1 R. S., 65, § 3; 1 Edm. St., 79; 1 R. S., 172, §§13-17; 1 Edm. St., 172; 1 R. S., 179-181, §§1-17; 1 Edm. St., 180-182.) A crime is an offense against the people — -the citizens in the aggregate. The title to the property in this case was in the State — -the corporation. (Texas v. White, 7 Wall., 721.) The statute expressly provides that the term u person ” or “ individual”— which is its equivalent — shall include the State or a corporation. (2 R. S., 703, § 35; 2 Edm. St., 726.)
   Learned, P. J.:

The plaintiff in error was convicted at the Albany Oyer and Terminer of forgery in the third degree, for making a false entry in a book of accounts kept in the office of the State Treasurer.

The statute under which he was indicted and convicted is as follows: “ Every person who, with intent to defraud, shall make any false entry, or shall falsely alter any entry made in any book of accounts kept in the office of the Comptroller of this State, or in the office of the Treasurer, or of the Surveyor-General, or of any County Treasurer, by which any demand or obligation, claim, right or interest, either against or in favor of the people of this State, or any county or town, or any individual, shall be or shall purport to be discharged, diminished, increased, created, or in any manner affected, shall, upon conviction, be adjudged guilty of forgery in the third degree.” (2 R. S. [m. p.], 673, § 34.)

The book of accounts, in which the alleged false entry was made, was a ledger, and the particular account in which the entry was made, was an account with the Mechanics and Farmers’ Bank. The alleged false entry was on the debit side of that account. That entry, with the three which preceded, is as follows:

1873. July 1. To balance..................... 539,101 00

“ 15. “ transfer................... 200,000 00

“ 31. “ “ 150,000 00

Aug. “ “ “ 200,000 00

The entry which is charged to be false is

“Aug. “ “ “ 200,000 00.”

Fo such transfer as is indicated by. this entry was made, and it is conceded that the entry is false.

There are ninety-six counts in the indictment. The first forty-eight charge the forgery generally; each of the last forty-eight sets out a copy of the account as it existed before the false entry, a copy of the false entry, and a copy of the account as it was before the false entry had been made.

Each of these counts alleges, in substance, that there was a book of accounts kept in the office of the State Treasurer, called a ledger, in which there was an account between the people and the Mechanics and Farmers’ Bank of Albany, to the tenor following: setting forth the account, which is headed “Mechanics and Farmers’ Bank.” . It then avers that the plaintiff in error, with intent, etc., made a false entry in said book, by which a right (or claim, etc.) in favor of the people, “ against the said Mechanics and Farmers’ Bank of Albany,” was created, etc., by falsely, etc., writing in said account between the people “ and the said Mechanics and Farmers’ Bank of Albany” the letters, etc., setting forth the false entry, so that the aforesaid account between the people of the State of New York and the said Farmers and Mechanics’ Bank of Albany, after such false entry,” etc., was to the tenor following: setting forth the account again, headed “ Mechanics and Farmers’ Bank.”

On the trial the plaintiff in error objected to the receiving of any evidence of the false entry under these counts, on the ground that the account was alleged to be with the Farmers and Mechanics’ Bank, while the proof was of an account with the Mechanics and Farmers’ Bank. The same objection was taken by motion to direct the jury to acquit on these counts, and in other ways.

It appears by each of these counts, that the account is first averred to be with the Mechanics and Farmers’ Bank of Albany. It is then set out, according to its tenor, and is there set forth as proved, with the heading “ Mechanics and Farmers’ Bank.”

The faise entry is then said to create a right, etc., against the said Mechanics and Farmers’ Bank of Albany; the account is again described as between the people and the Mechanics and Farmers’ Bank of Albany. .It is then averred that the aforesaid account between the people and the said Farmers and Mechanics' Bank of Albany was to the tenor following, and then the account is set forth with the heading “ Mechanics and Farmers’ Bank!’

The account, then, in both places where it is set forth, according to its tenor, is set, forth correctly.

The averments as to the parties between whom the account existed are correct. The only error is that once, in speaking of the 11 aforesaid” account, the words are added “between the people of the State of New York and the Farmers and Mechanics’ Bank of Albany.”

This is not a description of the account in which the false entry was made. That is correctly set forth, both as it was before, and also as it was after the false entry. Nor is it an allegation as to the parties to the account. They had been already correctly stated. It is merely a reference to an account already described ; a reference by the word “aforesaid.” No possible injury could be done to the plaintiff in error by thq mistake. He could not be misled, for the account and the false entry are fully and correctly stated. And for the same reason he is in no danger of another trial for the same offense.

Where a prisoner was indicted for stealing United States legal tender notes, and the proof was of stealing national bank currrency, the court very properly reversed the conviction. They say that a conviction or acquittal on this indictment would not prevent another indictment for stealing another kind of money, that is, the national bank currency. (People v. Jones, 5 Lans., 340.) But the present case is certainly different from that and others similar to it.

Another objection arises on the following circumstances. In the several counts from'the forty-eighth onward, wherever the account is set forth, one of the items in the debit side, in the year 1872, is “Nov. 28, “ “ 125,000.” This is not the alleged false entry, nor is it an item to which the false entry refers; as it might be said .to refer to the three immediately preceding by the marks “ “ “ • On the production of the ledger on the trial, it was claimed by the defense that the item was “Nov. 18, “ “ “ 125,000,” and the'admission of the ledger was objected to on the ground of variance.

It is probable that the item ought to have been “Nov. 18.” But the question is what the item in fact was. The witnesses acquainted with the handwriting of Phelps, who himself made the entries, testified that it was “ Nov. 28.” Thé original was by consent produced on the argument, and appears to be November twenty-eighth. It was read November twenty-eighth by the court, on the trial. But the judge, in submitting the ease to the jury, charged that if this item was in fact written November eighteenth, and if the prisoner was thereby misled in preparing his defense to the indictment, they should acquit him.

When we consider that this item was no part of the false entry, and in no way affected the meaning of the false entry, this charge was sufficiently favorable to the plaintiff in error. “No indictment shall be deemed invalid, nor shall the trial, judgment, or the proceedings thereon be affected. * * * 4dh. By reason of any other defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.” (2 It. S., [m. p.] 728, § 52.) There was no evidence, so far as the testimony of witnesses went, that the item was not, November twenty-eighth. And an inspection of the paper by the court there and on this argument, showed the item to be as it was stated in the indictment.

Where objection is made to the admission of an instrument on the ground of variance, a question is presented for the decision of the court. It is difficult to see how the court can decide whether or not there is a variance, unless the court first determine what the language of the indictment is, and what is the language of the instrument offered in evidence. It seems necessary, therefore, in this instance, that before the court could decide whether there was a variance, tbé court must have determined what the figures were. (See Hess v. State, 5 Ohio, 8.)

Again: it is urged that the false entry could not possibly defraud any one; that it could not possibly affect any person or corporation in estate or property; that it is not forgery, under the circumstances of the case; that, at all events, there must be a possibility of some person being defrauded by the false entry.

This question is to be determined not so much by the decision as to what constitutes a forgery at common law, as by the language of the statutes. The prisoner made a false entry in a book of accounts kept in the office of the Treasurer. Was the entry one by which a demand, etc., in favor of the people against the Mechanics and Farmers’ Bank purported to be increased or affected? Now, it is to be observed that the statute, in its very language, implies that an entry may be made in these books of public officers by which a demand against a county, town or individual, as well as against the State, may be, or purport to be, created or increased. And it would seem that the object of this provision of the statute was to protect against any false entries in these books of account, whether the entries were or were not such as, between individuals, would be evidence against the person charged thereby. But the plaintiff in error urges that this entry, if genuine, could not have been given in evidence against the bank, and therefore was of no legal efficacy.

The case of Biles v. Commonwealth (32 Penn., 537), was an indictment at common law for forgery. The defendant, a clerk in a mercantile house, made a false entry in the journal, which represented the cash received as being less than the actual amount. He was convicted, and after a very careful discussion the conviction was sustained.

It was said that, though the journal would not be evidence for the firm in a court of law, yet, in equity, for collateral purposes, it might be evidence of their rights. Even, therefore, at common law, a false entry made by a clerk in his employer’s journal, stating the cash received at less than the actual amount, is forgery.

The plaintiff in error cited the case Reg. v. Hodson (Beasely & Bell Cr. Cas., 3), which was an indictment at common law, and which holds that falsely altering a diploma, issued by the College of Surgeons, is not forgery. This was on the ground that there was uo intent to defraud any particular person; and that is not the present case.

Ex parte Winson (6 Best & Smith [2 B. R.], 528), is a decision under the extradition treaty, holding that forgery, under that treaty, meant forgery at common law, and not forgery under the New York statutes. It does not construe those statutes, nor touch the present question.

It was held in Cunningham v. People (4 Hun, 455), following other eases, that if the forged instrument is invalid on its face, it cannot be the ground for the conviction of this crime. But that decision does not apply to this case. Here the false entry is valid on its face. There is nothing in the entry itself which shows that if true it would be invalid. On the contrary, if true, it would have been as valid as any other entry in the book.- It must be noticed that the act which is charged against the plaintiff in error is not the falsely making of an instrument, or of a writing which purports to be the act of another. That is an offense forbidden by a previous section of the statutes. (Sec. 33.) The writing in this case, although false in fact, was the genuine writing of the person whose it purported to be — that is, of the plaintiff in error. And the statute does not imply that the false entry must purport to be that of some other person. It therefore contemplates that entries may be made in the books of these State officers, which shall affect or purport to increase or create claims against individuals. That is what this false entry did. It might be given in evidence after certain proof had been made in respect to these entries. (Bank of Monroe v. Culver, 2 Hill, 531; Merrill v. Ithaca and Owego R. R. Co., 16 Wend., 586.; Guy v. Mead,, 22 N. Y., 462.) So if the plaintiff in error were dead. (Brewster v. Doane, 2 Hill, 537 ; 1 Greenl. Ev., § 116 et seq., and § 483 et seq.)

It is further insisted, in connection with this point, that there was no intent to defraud, because no fraud could result from the act. It is in proof, however, that the plaintiff in error had taken a large amount of money from the State ; and the court left it to the jury to say whether he made this false entry, with the intention of covering up this illegal appropriation of money, and charged them that if he did, then he made the false entry with intent to defraud. In this we think that there was no error. What was the intent of the entry ? The plaintiff in error had taken the money of the State. Thus, the amount on deposit appeared less than it ought to be. By making this false-entry the apparent amount on deposit was increased.

Suppose that, at the same ' time when he made this false entry, he had taken the sum of $200,000; would not this entry have been plainly made, in such case, to conceal the theft, and with intent to defraud ? As above remarked, this is not a case of passing off as genuine a forged instrument. But it. is no less a crime, if done with a criminal intent. And if, in order to. enable him, without speedy detection, to take this sum, he had made this false entry, can it be doubted that it would have been made with intent to defraud? And is the crime any different if he stole the money on one day, and made the false entry on the day after, for the purpose of concealing and covering up his theft ?

It is just as necessary to the thief, in such a case as this, to cover up his theft. If he does not cover up and conceal the matter, 'the stolen money may be at once reclaimed. And it is just as much a fraud on the State to retain as to take the money. We think, then, that the charge was proper in this respect.

The judgment and conviction should be affirmed.

Present — Learned, P. J., Bookes and Boardman, JJ.

Ordered accordingly.


text:
    J. CHARLES SAUTER, Administrator, Respondent, v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Proximate ccm.se — effect of negligence of physician— Northampton tables.

    The plaintiff’s intestate, while leaving one of defendant’s trains, at Poughkeepsie, was, by a sudden backward movement of the train, thrown against the iron railing of the platform and ruptured. A.n operation was performed to reduce the hernia; instead of returning the intestine to the abdominal cavity, it was by mistake placed in an abnormal cavity, between the peritoneum and the pubic bone. Whether death was occasioned from this mistake, or from another hernia also caused by the accident, was in dispute. The court charged that if death was occasioned by the negligence or maltreatment of the physician, that the plaintiff could not recover; that if the jury should iind that this hernia received the best professional skill, and that such skill was accompanied by liability to accident and mistake, and that such error was one of the concomitants of the disease to which those who suffered from it were exposed; that then such mistake would not relieve the defendant from liability for having caused the disease. Held, that this was correct.

      It is tiie duty of a railroad company, at a time wlien passengers are getting out of the cars, after an announcement by the conductor that ten minutes would be given for refreshments, to permit the cars to stand still.
    In an action to recover damages occasioned by the death of the plaintiff’s intestate, the Northampton tables are properly received in evidence to show the probable duration of the life of the deceased.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions, and from an order denying a motion for a new trial, upon the ground of surprise and newly discovered evidence.
    The action was brought to recover damages for the death of John Sauter, the plaintiff’s intestate, which was claimed to have been caused by the wrongful act or negligence of the defendant.
    On the 17th of March, 1874, John Sauter was a passenger on one of the defendant’s trains of cars from Schenectady to Poughkeepsie. When the train had arrived at Poughkeepsie, and the deceased was going out of the car door upon the forward platform for the purpose of leaving the car, the train gave a sudden backward jerk, moving three or four feet, and the deceased stumbled against the railing, and from this cause, injury was claimed to have resulted, which produced the death of plaintiff’s intestate.

      S. W.. Jackson, for the appellant.

      E. W. Paige, for the respondent.
   Learned, P. J.:

A motion was made, after the verdict, for a new trial, on the ground of surprise and newly discovered evidence. It was denied, and an appeal is taken.

The accident which is alleged to have occasioned the death of plaintiff’s intestate, occurred as he was alighting from a train of cars at Poughkeepsie. It was caused by a jerk backward of the cars. Two trains arrive at that place between seven and half-past seven p. m. The first is number thirty-two, or the milk train, and the second is number thirty, the New York special express. The plaintiff’s testator was in the former. The defendant’s attorney supposed that the accident occurred on the latter, and did not discover the fact to be otherwise until the commencement of the trial. He did, however, discover this fact from the testimony of the first witness ; and he made no motion to put off the trial, or for time to procure witnesses, now alleged to be necessary.

Again, the milk train, on its arrival at Poughkeepsie, was left standing, while the engine which had drawn it was detached, went southerly, and was switched off to another track. Then the engine which was to draw train number thirty from Poughkeepsie to New York, and which was standing below the switch, south of the bridge, was backed up to the milk train, and pushed it back 150 feet or more. Now Sawyer, the engineer of that engine, was a witness on the trial, and testified that, when he backed up, he did not jerk the milk train backward. There is no suggestion that any engine other than his pushed back the milk train; and the case was tried on the theory that the jerk was produced by that engine. The witnesses whom the defendant desires to call on a new trial are the conductor of the milk train and the engineer of the engine which drew it. And he desires to show by them, that that engine did not jerk the cars. But it was not pretended, on the trial, that the jerk was produced by that engine. On the contrary, the charge of the court shows that the case was tried on the theory that the jerk, if there were any jerk, was produced by the engine of the witness Sawyer. The witness Myers did not state that the jerk occurred at once on the arrival of the train, so that there is nothing to indicate that it was not produced bv Sawyer’s engine. We do not think that there is any reason for granting a new trial on the ground of surprise or newly discovered evidence.

The plaintiff’s testator was in good health, and cheerful, when he came down in the cars. As he stepped on the platform to get out at Poughkeepsie there was a jerk of the train three or four feet; he stumbled against the railing, then got off the cars, and walked to the house where he was going. He did not reply to his grandson, who was with him; he went to his daughter’s house; did not appear as pleasant as usual; took no food, only a little tea, which he vomited. He suffered much pain in the night. The next day a physician was called, and it was found that he had inguinal hernia. He never left his bed again alive. With the testimony of physicians as to what may cause this injury, there was sufficient to go to the jury on the question whether the blow received by the jerk of the cars was the cause. The blow was a sufficient cause, and the sudden change from cheerfulness to silence and apparent suffering, indicated the time when the injury happened.

Again, it is claimed, by the defendant, that the injury was not the proximate cause of his death. It appeared that, in the attempt made by the physicians to reduce the hernia, a mistake was made. The intestine, instead of being returned to the abdomen, was returned into a fissure or sac between the peritoneum and pubic bone. The operating physicians supposed that they had returned the intestine to the abdomen. There is testimony that, if the intestine had been properly returned, the patient would probably have recovered. The fissure or sac into which the intestine was returned, according to the testimony, could not have been caused by the alleged jerk of the cars. It was attributed, by physicians who testified, to the act of the patient, or to the manipulation by the physicians who attempted to reduce the hernia by pressure.

The defendant’s counsel requested the court to charge, that if the death of the deceased was proximately caused by the doctors placing or forcing the protruding bowels into some abnormal cavity, where it was subjected to an increased pressure or drag, the plaintiff cannot recover. The court declined to charge otherwise than as had been already charged.

The court had already charged that the jury could find for the defendant if the death was caused by the error, or ignorance, or blunder, or maltreatment of the physician ; that if the hernia was not the proximate cause of the death, the plaintiff could not recover; that' the jury should find for the defendant, unless they found that the hernia was caused by the negligent movement of the cars, and that the hernia was the proximate cause of the death; that if the ailment was of such a character that, with proper and timely treatment, it would not have been followed by death, and if death was the result of wrong and improper treatment by the physicians, the plaintiff could not recover.

The court had further charged, in substance, that if the jury found that this hernia required the best professional skill, and that such skill is accompanied by liability to accident and mistake and error, and that, liability to such error is one of the concomitants of the disease to which a patieut who suffers under it is exposed, then that this mistake did not relieve the defendants from having caused the disease.

The request of the defendant, therefore,, asked the court to charge that the plaintiff could not recover, without regard to the question whether or not the best professional skill had been employed, or to the question whether the best professional skill might not commit the error which was committed in this case.

Now, it is to be observed, that the jury have found that the defendant’s negligence produced the hernia. The attending physicians did not produce the hernia. They only failed, by mistake, to reduce it. The intestine was constricted in two places, and the physician relieved only one stricture.

The question here presented is that of remote and proximate causes. In Insurance Company v. Tweed (7 Wall., 44), the court say: If we could deduce the best possible expression of the rule it would remain, after all, to decide each case largely upon the special facts belonging to it, and often upon the very nicest discrimination. * * * If a new force or power has intervened, of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote.” So, in Cuff v. N. and N. Y. R. R. (35 N. J., 17), the intervention of the independent act of the third person, is said to be a test of the remoteness of cause. To the same effect is Wharton on Negligence (§ 131, et seq.). Now the calling in of a physician, and his action, cannot properly constitute the intervention of a new force of itself, or the independent act of a third person. It is the proper consequence of the injury. Not to call him in might be of itself negligence. What he does, therefore, with all its liability to error or mistake, is also a proper consequence of the injury. Certainly, unless the act of the physician was such as to constitute culpable malpractice, the defendant should not be relieved from liability. But the request to charge, if complied with, would have relieved the defendant from liability, without regard to the question whether or not the physician was liable. And the court had already charged that the defendants were relieved if the death was caused by the physician’s error, ignorance, blunder or maltreatment. We think that there was no error in the refusal to charge as requested.

An objection was made to the introduction of the Northampton tables. They were introduced for the purpose of showing the probable duration of the life of the deceased. They were objected to as immaterial and improper. They have been held to be admissible. (Schell v. Plumb, 55 N. Y., 592.) It is objected, however, that the damages do not depend on the probable duration of the life of the deceased, but on the length of time for which his life would be valuable. Still, the probable duration of his life must have entered into, and formed a part of the estimate of the length of time for which it would be valuable. It is not conclusive, but is material. His actual age, his habits and his income were shown. We think there was no error in the admission of these tables.

The defendants also requested the court to charge that the plaintiff cannot recover, unless the jury find that injury to a passenger situated as deceased was, would be reasonably apprehended by a prudent man, as the result of such a movement of the cars as was made-in this case. The court declined, except as already charged. The court had already charged that if, after having stopped the train, it was given such a jolt as would endanger the safety of the lives of the passengers, it was such an act as would authorize them to find in favor of the plaintiff. And thus the liability of the defendant was made to depend on the jolt being such as would endanger the safety of the lives of the passengers. The train had stopped at Poughkeepsie. The conductor had announced ten minutes for refreshments. The passengers were getting out, and the deceased was doing the same, as he might and should do. He was lawfully upon the platform. And it was the duty of the defendants, at a time when the passengers were lawfully getting out of the cars, to permit the cars to stand still. For the passengers had a right to suppose that the cars would remain stationai-y. It would be unreasonable to say that the defendants might give the cars a sudden jerk, provided a prudent man would not reasonably apprehend injury therefrom to a passenger standing on the platform with satchel and umbrella, and about to step off. If the deceased was injured by the sudden motion of the cars, as the jury have found, the defendants were to blame. Because they had done every thing to indicate that the cars were to be stationary, and that the deceased might depend on this. If they had then desired to move the cars, they could easily have warned persons from the dangerous position of the platform. We think there was no error in the refusal.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment and order affirmed, with costs.


author: Per Ouriam:

text:
    EPHRAIM T. KELLOGG, Administrator, Appellant, v. LOREN WERNER, Executor, Respondent.

      Statutory reference — filing evidence — Rule 43.
    On a statutory reference between an executor and a claimant against tbe estate, it is not necessary to file tbe testimony taken before tbe referee.
    Appeal from an order made at Speeial Term, denying a motion made by the plaintiff for the confirmation of a referee’s report. The report was made on a statutory reference under the provisions of 2 Revised Statutes, page 89, sections 36 and 37. The confirmation was objected to, on the ground that the testimony should have been signed and filed under the provisions of the third paragraph of rule 39.

      Hale,- Smith c& Hale, for the appellant.

      R. I. Hand, for the respondent.
   Per Ouriam:

We are of opinion that, in the ease of a statutory reference, had between an executor or administrator and a claimant against the estate (under 2 R. S., [m. p.] 89, § 36, etc.), the rule of this court requiring the filing of the testimony taken before the referee (rule 43), does not apply. For this reason the order of the Special Term should be reversed, with ten dollars costs, and printing disbursements, without prejudice to any right of review of the referee’s report.

Present — Learned, P. J., Bocees and Boardman, JJ.

Order reversed, with ten dollars costs and printing.


author: Learned, P. J.: Bocees, J.:

text:
    HORACE M. RHODES, Executor, Respondent, v. AMARILLA DUTCHER, and others, Appellants.

      Surplus moneys —payment to heirs of mortgagor — when decree dvrects deposit of swrplus with county treasurer — remedy of creditors.

    Upon the sale of certain real estate under a decree of foreclosure entered in this action, the purchaser, in pursuance of an agreement with the widow and heirs at law of the deceased mortgagor, executed to them mortgages for their interest in the property after the payment of the specific lions thereon. These facts were reported to the court by the referee, and his report was confirmed. Subsequently this motion was made by the administrator of the deceased mortgagor and certain of his general creditors, to have the mortgage set aside, and the amount thereof paid over to the County Treasurer, as required by the decree of foreclosure. Seld, that the motion should have been denied; that the rights of the general creditors could only be enforced in an action brought by the administratrix, and not by a motion or special proceeding.
    Where, upon a sale under a decree of foreclosure, the referee, with the consent of the parties in interest, sells the premises on time, in order to obtain a better priee, and such sale is reported to and approved by the court, the purchaser has a right to insist upon the terms of his purchase, and cannot be compelled to pay cash, when he bought on time. (Per Learned, P. J.)
    Appeal from au order made at the Special Term.
    This was an action to foreclose a mortgage executed by Cornelius V. Dutcher. The mortgagor died April 28, 1868, intestate, and seized of the equity of redemption; and leaving surviving, his widow, Amarilla, and his three children, his heirs. This action was commenced in the spring of 1872, and was carried to judgment of foreclosure and sale. The sale took place June 8, 1872. The widow, the three heirs, and a subsequent mortgagee were parties. Two of the heirs were under twenty-one, and appeared by guardians ad litem.

    The judgment was in the usual form, requiring the referee to pay the surplus to the county treasurer. On the sale, Andrew Purcell purchased the property. There was a surplus of about $1,100. Of this, something over $200 was paid by the referee to Dayton, the subsequent incumbrancer. For the balance, of about $900, the referee took mortgages, payable in annual installments of fifty dollars each, upon the‘.-premises sold. One of said mortgages was to the widow, being intended for her dower right; another to one of the heirs, Adelaide; and the others to the guardians ad litem of the infant heirs. The report of the referee stated the taking of these mortgages, and was confirmed May-23, 1873.
    The widow and Adelaide have assigned their mortgages to Rhodes, the plaintiff in this action. The two infant heirs have become of age. One has assigned his mortgage to one Mann; the other heir has assigned his to Dayton.
    On the 27th of April, 1874, Sanford Carlton was appointed administrator of Cornelius Y. Dutcher, deceased ; no administrator having been previously appointed.
    The administrator now makes an affidavit showing that Dutcher owed about $1,740 at- his death, and that his personal assets did not exceed $172.94; and he moves this court to require the purchaser to pay the surplus of the purchase-money to the surrogate; and that these mortgages be adjudged invalid and void, and be cancelled and annulled; and that the present holders of them pay to the surrogate the amounts they have received thereon.
    The purchaser makes an affidavit that he' bought in good faith, and without knowledge that Dutclier’s estate had not'been settled, or that the creditors had any claim; that he cannot raise the money on the mortgages without expense and loss.
    Mann, the holder of one of the mortgages, says that he bought it in good faith, and paid about $200 therefor; that he had no knowledge that the estate was not settled; that the administrator is a brother of the widow, and knew of the purchase at the foreclosure, and advised the giving of the mortgages. Rhodes, the other holder, makes a similar affidavit.
    One of the heirs makes an affidavit that Dutcher, at his death, was possessed of more personal property than enough to pay his debts, and specified over $700. He states that -,the alleged claims against Dutcher are not correct; that Sanford Carlton advised the widow not to take out letters of administration, and that for this reason none were taken out until the personal property had been nearly all used up.
    On these affidavits the Special Term made an order June 28, 1875, requiring the purchaser to pay to the referee the balance of the purchase-money on the mortgages, given to secure the heirs who sold; and the referee to pay the same to the county treasurer; and declaring the'mortgages void, and modifying the order of confirmation, as respects the taking of the mortgages.
    From this order the purchasers and the present holders of the mortgages appeal.

      R. O. Retís, for the appellants.

      S. Thomas, for the respondent.
   Learned, P. J.:

The first question is, whether the purchaser can lawfully be required to pay this balance to the referee. Although it is customary to sell for cash, I see no reason why the plaintiff, at a foreclosure sale, may not direct the referee, if no one objects, to sell on time. A sale on time may be the means of obtaining a better price for the property. And when a referee, thus authorized, sells the property upon time, and such sale is reported to the court and confirmed, I think that the purchaser has a right to insist upon the terms on which he made his purchase, and that he cannot be compelled to pay cash, when he bought on time. If any wrong has been done, or fraud practiced, the utmost would be to have a resale, on notice to the purchaser, and upon such terms as would protect him from loss.

The purchaser was under no obligation to see that the referee made a proper disposition of the surplus; and, certainly, the purchaser cannot be required to perform any other contract than that ■ which he made. He states in his affidavit that he gave more than he would have done if he had had to pay cash. I do not think that the special term could rightfully require the purchaser, against his consent, to pay the money secured by these mortgages, in any other way than according to their terms. While the sale stand's, it must stand on the terms upon which it was made.

The other part of the order declares the mortgages unauthorized and void, except so far as it may be necessary to have recourse to the same to enforce collection to the credit of this action.

One of these three mortgages is in the hands of Rhodes, who swears that he purchased the same in good faith, and that no motion papers have been served upon him. It is difficult to see how the court can take away his property without any service of papers upon him. He was the plaintiff in the action, it is true ; but it was not as such plaintiff that he became the owner of this mortgage. That was a purchase made in March, 1814, about two years after the foreclosure sale. No proof of service of notice of motion appears in the papers. The authority of the attorneys could not continue.

Another of the mortgages is in the hands of Mann. He was not a party to the original action, nor was he a purchaser at the sale. He swears that he bought the mortgage about a year and a half after it was given. The order of the court, on a special motion, in an action to which he was not a party, takes away his mortgage by declaring it void. I do not think that this can be done in such a summary way.

Furthermore, Sanford Carlton, the moving party, is not a party to the action, and he has no claim on the moneys. He does not ask that they be paid to him, nor does the order so require. It is not pretended that he has any right to receive them.

At the death of Dntcher, the real estate vested in the heirs. They became the owners, and were such owners when the foreclosure sale took place. Suppose that, on the day previous to the sale, they had conveyed the real estate to a purchaser in good faith ; would not the purchaser have acquired a good title, subject to the mortgage ? More than four years had elapsed since the death of Duteher, and no administrator had been appointed ; and therefore an administrator could not have had a sale of the property by order of the surrogate. (See Laws of 1869, chap. 845.) I do not see, therefore, why the heirs might not have made an indefeasible conveyance of their estate in the lands on the day previous to the sale; and in that case the purchaser would have been entitled to receive the surplus. The very object of the statute was to limit the time within which creditors could enforce debts against real estate, and thus to end the difficulty suggested in Hall v. Partridge (10 How., 188).

Now, if the heirs might have conveyed the land on the day before the sale, so that the purchaser would have been entitled to the surplus, it is inconsistent to say that they could not dispose of the surplus after that day, so as to give a good title to it.

It is true that the heirs still remain liable to the creditors of the deceased, personally, to the extent of the real estate descended to them. (2 R. S., [m. p.] 452, §§ 32, 33.) But even this liability depends on the fact that the personal assets were insufficient. (Mersereau v. Ryerss, 3 N. Y., 261.) And, furthermore, this liability does not affect lands which have been aliened. (Sec. 51.)

The provisions of the statutes are ample. Within four years after the death of the deceased the creditors, if there be a deficiency of personal assets, can, through the administrator or executor, and by the authority of the surrogate’s court, compel a sale of the real estate. After that time they can only reach such as has not been aliened in good faith; still, however, having a right of action against the heirs, personally, in respect to what they have severally received.

In this present case, therefore, the heirs were entitled to receive the surplus as their own. And they could dispose of it; being, however, personally liable if there had been, in fact, a deficiency of assets. There is really a doubt in this case, whether there was a deficiency of assets. The largest alleged claim is that of the widow, Amarilla, who, it appears, continued after her husband’s death to live on the farm, and who sold some of the personal property. This she did, according to the affidavits of the two witnesses, by the advice of Sanford Carlton, her brother, who has now, after the lapse of six years, taken out letters of administration. There are several other suspicious circumstances in this matter, unnecessary to state.

The order should be reversed; without prejudice, however, to any right of action of the creditors against the heirs, respectively, on account of the real estate which descended to them. And Purcell should have costs of the motion and of this appeal against Sanford Carlton, personally.

Bocees, J.:

The proceedings in this case, from' the time of sale under the decree of foreclosure, have been strangely irregular. The departure from the direction contained in the decree of sale has led to difficulties, which it may be troublesome to overcome and remedy; still, the true way will be to start, in the examination of the case, with the first error committed in the proceedings, and see how correction may be now made from that point, holding in view the rights and equities of all concerned.

We will assume, as authorized to do, that the proceedings to the sale of the real estate, under the decree of foreclosure, were regular in all respects. Then, on such sale being perfected, the rights of all persons in the equity of redemption were barred ; and the avails of the sale became a fund in court, to be applied in satisfaction of the legal and equitable claims thereon. So much as was necessary to satisfy the specific liens on the property sold was first to be applied, according to their priority. This was done, and to this extent the judgment was properly executed. Had there been no surplus, nothing would have remained to do. Rut there was a surplus, as is shown us, of about $900. According to the direction in the decree, this surplus should have been paid over to the County-Treasurer. This was right in theory, and in practice; and had this direction been followed the fund would have been in court, in fact, to meet the just demands of those entitled thereto. Tnen it could not have been drawn out, except to answer the just and lawful demands of those having claims thereon, and it would have been the duty of the court to see that such claims were answered in the order of their priority, growing out of the relation of the claimants-to the fund. Now it may be well to pause here and determine to whom this surplus fund belonged, for it is with this fund we are to deal, all rights in the real estate, as such, having terminated by the sale. This surplus, in law, belonged to the widow and heirs of the intestate -mortgagor; the portion going to the heirs, however, being subject to the equitable claims of the general creditors of the intestate. Thus, we see, this fund was subject, first, to the claim of the widow thereon ; second, to the claim of the general creditors of the intestate mortgagor; and, thirdly, what remained, if any, would belong- to the heirs at law of the intestate, in equal parts. Had this surplus been paid into court, or, as directed in this case, into the hands of the county treasurer, to be disposed of under the order of the court, it would have been drawn out only to answer these claims, when determined in the .order above stated. And now, if the fund still remains in a condition to be reached, it continues subject to such claims. Here, difficulty perhaps, presents itself. ■ The widow took her share, and as to that part no question is here raised. But the balance was improperly passed over, in mortgages, to the heirs at law. Those mortgages still remain unpaid, in whole or in part, and in them rests this fund, to which the general creditors of the intestate were entitled. It may be well to remark here that it is not proposed to disturb the sale; no one asks to set that aside; nor is it a matter of any importance that Purcell, the purchaser, bought on time. This has nothing to do with the question of right to the surplus, inasmuch as it is the f%md now existing in bonds and mortgages, to be paid according to their terms, on which the creditors make claim. If these securities still remained in the hands of the respective heirs at law of the intestate, to whom they were originally given, I have no doubt his general creditors might reach them, in a proper proceeding for that purpose, on showing a want of assets to meet the requirements of a due administration of his estate. Nor is it obvious, how an assignee of those securities can stand in any better position than would the assignor (57 N. Y., 229, 233; 50 id, 61; 47 id., 421); but that is not, I think, a question to be determined here. The question now is, whether this fund can be reached, and applied to the just claims of the creditors by a proceeding on special motion. I am of the opinion that the purpose sought cannot be thus attained. It must be by action, by the administrator, for the benefit of the general creditors; and this would be so, I think, even if-the securities had not been assigned. Generally, a fund raised for special purposes may be followed and secured, so long as it can be traced, except where it comes to the hands of some person oí persons who may have obtained superior equities in regard to it. But the pursuit must be in form to give all parties interested a full and fair hearing, both on the facts and law. A special motion is but illy adapted to this end when facts are disputed and' the equities complicated. The mortgages brought in question in this case should not be declared void on this proceeding. Indeed, I think, as the facts are here presented to us, that they should be allowed to stand, and that the moneys thereby secured to be paid should be the subject of litigation between the contending parties. If I am right in this, the matters in controversy on this motion constitute a subject of formal action, or suit in equity, in which the heirs at law of the intestate and assignees of the fund should be made parties, and, perhaps, the widow, also, although, as it here appears, no claim is made against the share received by her. If the general creditors of the intestate can make it appear, through the administrator, whom the law has selected to represent them, that the fund, once subject to their equitable claim, remains within their reach, they may still have relief, but not by special motion to set aside the foreclosure sale, especially when it involves also, the right and title of bonds and mortgages, in which third parties have, or claim to have, acquired rights. The creditors of the intestate should be put to a proceeding by formal action. ■ It follows that the order appealed from should be reversed, and the motion made at Special Term should be denied. The costs of the motion and of the appeal should be against the administrator, as such. To charge him with costs personally would be, as I think, singularly unjust. There is nothing indicating bad faith on his part. He did nothing reprehensible, in seeking to secure the rights of those he was bound by law to protect.

Nor is this the place to determine the rights of the creditors against the estate. Carlton, as administrator, holds a position of duty to the creditors, which cannot be gainsaid here, on affidavits of third parties that some of the claims have been paid, or are fraudulent. Those questions must be determined in other proceedings, perhaps in another tribunal. He stands here as administrator, duly authorized, and, in fact, bound by law to protect the estate for the benefit of the creditors of the intestate. In the absence of palpable bad faith, he should not be charged personally with the costs of a proceeding taken in his official character, and under legal obligation.

The order appealed from should be reversed, with ten dollars costs and disbursements on appeal; and the motion made at Special Term should be denied, with ten dollars costs; such costs and disbursements to be against Carlton as administrator, and not personally.

Present — Learned, P. J., Bocees and Boardman, JJ.

Order reversed, with ten dollars costs and printing expenses, and motion denied, with ten dollars costs; costs to be paid by Carlton personally.


text:
    NANCY CORDELL, Administratrix, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY.

      PulMc road — 3 B. 8. (Bdm. ed.), 643 — chap. 62 of 1853.
    Where a road, crossing the tracks of the defendant, has been laid out, districted and traveled by the public for more than six years, it is a public road, within the meaning of section 7 of 3 Revised Statutes (Edm. ed.), 643, requiring the defendant to sound a whistle or ring a bell when approaching it, even though the notice required by section 1 of chapter 62 of 1853 had never been served upon any of the officers therein mentioned.
    The omission to sound the bell or whistle, as required by the statute, is conclusive evidence of negligence on the part of the company.
    It is not error for the court to read to the jury extracts from the opinion of the Court of Appeals in another case, where there is nothing in the remainder of the opinion qualifying the part read.
    It was claimed that, at the place where plaintiff’s intestate was killed, certain trees or stumps had been placed, which prevented him from seeing the approaching train. The court, after stating that the defendant was not liable for the acts of its contractors, charged the jury that if the contractor, with the knowledge and approval of the defendant, deposited this obstruction on the ground, and the defendant permitted them to remain where they would obstruct the view of the road, this would be negligence. Held, that the charge was correct.
    It appeared that the deceased, after he was struck by the train, was seen to hold on to the cow-catcher for some distance, when he fell off. Held, that it was not error for the court to call attention to this as showing that the deceased had the ordinary instinct of men, and did not intend to commit suicide, although it was not charged by the defendant that he did intend to do so.
    The deceased was killed while crossing the track from south to north. At the place where he was struck there were three tracks, the north track being used exclusively for trains going east, by one of which the deceased was killed. The court charged that if the deceased, immediately before approaching the track, had looked west and discovered no approaching train, the mere fact that when he was in the act of stepping upon the track he cast his eyes to the eastward to see if a train was approaching, did not establish negligence on his part. Held, that this was correct; that he was not required to look continually toward the west, and not at all toward the east.
    Defendant’s counsel requested the court to charge that as the defendant had never given the statutory signals at this point, its omission to do so on this occasion could not properly be submitted to the jury as bearing upon the question of deceased’s negligence. The court charged that, as the law required the company to make these signals, its omission so to do was a circumstance for the jury to consider. Held, that this was proper.

      Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff rendered by a jury.
    The plaintiff’s intestate, Christopher R. Cordell, was, on the 13th day of August, 1873, struck and killed by a locomotive attached to a train of defendant’s, at a place in Albany county, near the line between Albany and Schenectady counties. The locomotive was attached to a train going east. There were, at that time, three tracks: the southernmost used by all trains going east, the middle by trains going west, and on the northernmost there was, at the time of the accident, a working train which had just gone west.
    Near the point where the deceased was struck was a road that crossed the track. The deceased lived on the north side of this road, and his father, John P. Cordell, on the south side. The plaintiff claimed that this road had been opened as a highway. There was a gate on each side of the railroad, at the entrance of the road, although at that time, in consequence of the building of the additional tracks, the fence was down on the north side.
    The deceased, shortly before he was killed, had started to go on •foot from his own house, on the south side of the railroad, across the tracks to his father’s.
    Evidence was given, on the part of the plaintiff, to show that there were obstructions, consisting of locust trees, stumps, etc., which prevented one from looking far up the track, which had been placed there by certain of the defendant’s contractors.
    The judge, in his charge to the jury, said: But in determining this question of care, or want of care, on the part of the deceased in approaching this track, you will also regard the absence of any signal on the part of the defendant, in directing his attention to the near approach of the train. And here, again, lest I may not state the rule exactly as laid down in the books, I read from another case in the Court of Appeals (Ernst v. The Tludssm River Railroad Go., 35 N. Y, 9): “ The omission of the customary signals is an assurance by the company to the traveler that no engine is approaching from either side within eighty rods of the crossing, and he may rely on such assurance without incurring the imputation of breach of duty to a wrong-doer.” * * * I don’t think, gentlemen, the effect of that case is to exonerate the deceased from all care in approaching a railroad track, but it has considerable bearing upon the amount of care and caution with which the deceased should have approached the track. If the signal had been sounded, you would have, of course, required the utmost degree of diligence and care, and the highest precaution which people take before crossing a track. On the other hand, when the defendant failed to announce the approach of the train as the law required them to do, a person may be pardoned if he does not exercise the highest degree of care, and the utmost amount of vigilance.
    With reference, then, to the absence of any signal on the part of the company, you are to determine the question whether or not the deceased approached that track with care — whether he went with the ordinary care and precaution that a man should have taken when approaching a dangerous place where trains might cross, and where, perchance, .some employe might fail to do that which the law required, * * * and in determining that question you must look at the man, and regard him as a man who had the ordinary instincts of our nature. He was a man in the prime of early manhood. He had left his wife and family only an instant before, and in approaching that track how would he ordinarily act ? You have a right to take that into account in solving this question; and lest I again should be deemed to express myself more strongly upon this branch of the case than I ought to, I will read from the Court of Appeals, from the opinion of Judge Porter, in the Ernst Case (35 N. Y., 29): “ In this case the parties inculpated have been sworn. Ernst, of course, could not confront them; but we are to judge him in the light of the evidence, by the ordinary rules which govern human action. He was a man of business, in the vigor of middle life and in the full possession of his faculties. He was a man of family and character, of experience and judgment. He had no apparent motive or inducement to make a wanton sacrifice of his life. He had the ordinary instincts of humanity. If on this occasion he did any thing which he” — further this part would not be specially applicable. I read this to show you that in determining whether a inan has been guilty of culpable negligence, which contributes to the result, you are to look at him as a man who possesses the ordinary instincts of human nature, who would not willingly sacrifice his life. No evidence in this cause tends to show that he was desirous of sacrificing his life; on the contrary, there was evidence of the tenacity with which he clung to the engine after it struck him, showing that he was not desirous of losing his life.

      Matthew Rale, for the appellant.

      J. R. Glute, for the respondent.
   Learned, P. J.:

The first question is, whether the place where the deceased was killed was a “ traveled public road,” within the meaning of section 7 of the general railroad act (3 Statutes at Large, 613, § 7).

To prove it to be such, the plaintiff produced an order made by the commissioners of highways, March 26th, 1867, and filed in the town clerk’s office, laying out this road; and the description therein was identified as the crossing at Cordell’s, where the deceased was killed. A release of damages from all of the land owners but one and the assessment and payment of his damages, according to law, were proved. A road warrant issued in 1869 to the overseer of highways was also put in evidence, and it was proved that the road had been worked. The road thus laid out ran from what is known as the middle road leading from Schenectady to Albany to what is known as the king’s highway. It was testified that the public traveled the road. There had been, however, gates on the road where it crossed the railroad, after it was opened as above stated. At the time of the accident, there was a gate on the south side, and there had been one on the other side, until it was removed for the purpose of laying down tracks.

It was, however, objected by the defendant, that the provisions of section 1, chapter 62, Laws of 1863, had not been complied with. This section provides that “no such street or highway shall be actually opened for use until thirty days after notice of such laying out has been served personally upon the president,” etc. The second section makes it the duty of the railroad corporation, immediately after service of the notice, to cause the street or highway to be taken across their track. The third section imposes a penalty of twenty dollars per day for a neglect of the company to cause this work to be done for thirty days, to be recovered by the officers laying out such street or highway, to be expended on the same; but permits the County Judge to extend the time for doing the work thirty days longer.

The meaning of this act is plainly to permit, and to require, the railroad company to do the necessary work of carrying the road across their track. But if they were to neglect to do this within the time allowed, it can not be possible that they could thereby stop the opening of the road, and prevent the public from traveling upon it.

There was some evidence tending to show the service of a notice in 1868 or 1869. But such notice was not served on any of the officers mentioned in section 1. It is in proof, however, that after that service the company “ bridged” the crossing — that is, put in plank inside and outside the track; that this road was districted before the accident, which was in August, 1873, and that the public traveled it.

Now, the deceased was one of the public. He was entitled to act on the public facts that this road had been laid out and districted, and that it was traveled by the public. He certainly was not bound, before be could safely travel upon it as a public road, to inquire whether the thirty days’ notice had been given to the company. There could be no doubt that, on both sides of the railroad track, this was a traveled public road. It would be unreasonable to hold that this road, which had been laid out for six years, was not a continuous highway over the railroad track, so far as the public were concerned. (See Marble v. Whitney, 28 N. Y., 297; Walker v. Caywood, 31 id., 51.)

The defendant’s counsel excepted to the charge of the court that the omission to sound the bell, or whistle, as the statute requires, was conclusive evidence of negligence. The statute requires the company to give this signal, and says that they shall be liable for all damages which shall be sustained by any person by reason of such neglect. The court was careful to say that, in order to recover, the plaintiff must be free from fault. There seems to be no error in this part of the charge. (Renwick v. N. Y. C. R. R., 36 N. Y., 132.)

The defendant’s counsel excepted to the charge of the judge taken from the opinion in the Ernst Case. The court read to the jury a part of the opinion in Ernst v. Hudson R. R. R. Co. (35 N. Y., 9). It is not suggested that there was any thing in the remainder of the opinion which was necessary to qualify the part which was read. We do not feel at liberty to say that it is error to read to a jury the opinion of the court of last resort. The judge was careful to say to the jury, however, and to impress upon them that the deceased was bound ro use his eyes and ears, and that he was not exonerated from care, by the absence of the signals.

The counsel for the defendant further excepted to the charge of the judge in reading to the jury a part of the opinion of the Court of Appeals in Mackay v. New York Central R. R. Co. (35 N. Y., 15). The judge qualified that part of the charge, at the defendant’s request, by saying that the rules excusing travelers from stopping their teams to look out for trains were not applicable to a foot traveler. Thus qualified, the charge seems to be unexceptionable. There were certain trees or stumps, which were alleged to be an obstruction, which prevented the deceased from seeing the train. In regard to the liability of the defendant for these obstructions, the judge charged that, if the contractors, with the knowledge and approval of the defendant, deposited this obstruction on the grounds of the defendant, and the corporation permitted them to remain where they would obstruct the view of the road, that would be negligence; and further said that, as an abstract proposition, the defendant was not liable for the acts of the contractor. He thus placed the liability of the defendant in this particular, on its knowledge, approval and permission. This seems to be sufficiently favorable to the defendant.

The deceased was struck by the cow-catcher, and was seen by one of the witnesses upon it, holding on by the bars, until he fell off. The judge, in his charge, mentioned the fact of the deceased’s holding on by the bars,,and read, in connection therewith, another extract from the opinion of the Court of Appeals in the same Ernst Case. The counsel for the defendant excepted to this extract from the opinion of the Court of Appeals, and requested the court to charge that whether or not the deceased intended to commit suicide was not before the jury, and should not be considered by them in determining the question as to contributory negligence. But certainly, if the deceased had intended to commit suicide, he would have been guilty of more than contributory negligence. It was not said by the judge that absence of such an intent showed that the deceased was not negligent. And the judge was careful to say that the jury must determine whether the deceased exercised due and proper care in approaching; that if he went on the track looking in the other direction, and not up the’track, he was guilty of negligence. Ve cannot think that it was error to read from the opinion of the Court of Appeals.

The defendant’s counsel asked the court to charge that, as the south track was used exclusively for trains going from the west, ordinary prudence required the deceased, both before and after stepping on the track, to look toward the west, and not to turn his eyes toward the east. The court charged that if the deceased, immediately before approaching the track, had looked -west and discovered no approaching train, the mere fact that when he was in the act of stepping upon the track he cast his eyes to the eastward to see if a train was approaching, did not make him careless. The defendant’s counsel excepted. It has been so often held to be the duty of a person crossing a railroad track to look both ways, that we think that should be considered as settled. Although the track was used exclusively for trains running from the west, still the company would be at liberty to run a train in the contrary direction, or they might back a train westward. So that it would be only reasonable that the person crossing should look out for a train in each direction. And the charge of the judge required that the deceased, immediately before approaching the track, should have looked west. So that the jury must have found that the deceased exercised that precaution.

The counsel for the defendant requested the judge to charge that there was no evidence of negligence, on the part of the defendant, other than that of the omission to ring the bell and sound the whistle. Now, there was no occasion for any charge of this kind. The judge had already charged that the omission to ring the bell and sound the whistle (which was undisputed) was negligence. No other negligence on the part of the defendant was claimed, and the judge had, in fact, pointed to this omission as the only negligence charged against the defendant. It was unnecessary that he should state it again.

After a judge has fairly and accurately, as he supposes, stated the law, following what he deems to be the appropriate order, he is often presented with a large number of requests to charge, many of which have been written without any reference to what he has actually said. Some of them he may have already charged in his own language, and- others he has charged in substance.

His refusal to adopt the language of these requests is not to be considered an error, when the law has been already correctly stated.

The counsel for the defendant also asked the judge to charge, that the extract read from the Ernst Case, as to the effect of customary signals being omitted, was inapplicable, because, in fact, there was no custom to make signals, here. The judge held that the law required the company to make these signals, and that the absence .of the signals which the law requires, is a circumstance for the jury to consider. If the doctrine laid down in the Ernst Case by the Court of Appeals has been, as the defendant claims, overruled by that court in the McGrath Case, not yet reported, this charge might be erroneous. In the McGrath Case, also, the signals were not such as -were required by law. But the judge did not charge that the absence of the signals relieved the traveler from the duty of keeping his faculties alert; only that it was a circumstance for the jury to consider. If this be so, the neglect of . the defendant to give such signals on one occasion, or on repeated occasions, did not relieve them from their duty. And the traveler, on a traveled public highway, who approached their track, had a right to expect those signals, even . though the company had neglected to give them before. Otherwise, its past negligence might practically annul the law, so far as travelers are concerned.

Another important question arises on the motion for a nonsuit. There are three witnesses who testify that the deceased was standing upon the track looking east when he was struck. The engineer of the train, however, says that when he first saw the deceased he was stepping; that he took two stepsj and the second brought him to the first rail of the track. The engineer saw him the earliest possible moment he came in sight. James Cordell testified in regard to the obstruction caused by the embankment, the trees, and the roots and stumps. He crossed the track just before the accident. He was walking, and driving a horse by the reins. He went on the track to see if a train was coming; to see if it was safe to cross with his horse. He went on the track because he could not see until he did so. He says that, standing between the gate and the track, he could only see up the track about four panels of fence. As the train was running thirty miles an hour, it would have passed over this distance of four pauels, or about sixty feet, in about a second and a half. There is substantially the same testimony from John P. Cordell, who also says that there were but three steps from the gate to the track. There is other evidence tending to show that the sight was not thus obstructed. But this conflict presented a question for the jury, and the experience of James Cordell, who, a few minutes before the deceased was killed, found it necessary to go upon the track to see whether he could safely drive his horse over, would be strong evidence as to the actual condition of the place.

If, then, the obstruction was such that the deceased, after coming out of the gate, could not have seen the train until it was within one second and a half of the crossing, no use of his eyes would have prevented the accident. It seems to us, therefore, that the question of negligence was properly submitted to the jury.

We think that the motion for new trial should be denied, and plaintiff should have judgment on the verdict, with costs.

Present — Learned, P. J., Boardman and Bocees, JJ.

Ordered accordingly.