author: O’Brien, J. Van Brunt, P. J. Patterson, J.

text:
    The People, Resp’ts, v. John P. Kirwan, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Rape — Cobbobobation op complainant.
    Corroboration of the testimony of the female on whom the alleged attempt was made is not necessary to establish the crime “ of an attempt to commit rape.”

      2. Same.
    Upon a trial for an attempt to commit rape the complainant testified that the defendant called at her house on business, she invited him into her parlor, defendant closed the door, put her against the wall, his body against hers, took her hands, put them under his arm, and unbuttoned his trousers, then there was a struggle and she got away, but made no outcry. Prior to this day he had made indecent advances to her. She sustained no physical or mental injury, and took no steps to punish defendant till nearly a month had passed. Defendant’s witnesses testified that he had previously borne a good character. Held, that a conviction of attempt to commit rape was not warranted by the evidence.
    Appeal from a judgment of the court of general sessions of the peace upon the verdict of a jury finding the defendant guilty of the crime of assault in the second degree.

      Howe & Hummel, for app’lt; De Lancey Nicoll, dist. atty., (Henry B. B. Stapler, asst. dist. atty., of counsel), for resp’ts.
   O’Brien, J.

The appellant was convicted of the offense of assault in the second degree, and sentenced to be imprisoned in the penitentiary for the term of two years and two months. The indictment charged the defendant with an assault upon one Mrs. Allan, with an intent to commit a felony, to wit, “ with intent to commit an act of sexual intercourse with her.”

To establish the crime of rape, a complainant’s evidence must be corroborated. The indictment, as stated by the learned recorder, “ is, substantially, what the law calls an attempt to commit rape.” The question is, therefore, presented whether or not corroboration is necessary to sustain a complainant in charging either “an attempt to commit rape,” or an assault with intent to commit rape; these being substantially, if not identically, the same offense expressed in two different ways. The Penal Code, however, while requiring, by § 283, that no conviction can be had for rape upon the testimony of the- female unsupported by other evidence, does not in express terms require such corroboration in respect to the assault with intent to commit rape. Rape and an assault with intent to commit rape are distinct crimes, and as corroboration was not essential to convict of either offense at common law, and as the statutory rule contained in the Penal Code speaks only of rape, we are of opinion that the recorder was correct in his ruling, refusing to charge, as requested by the prisoner’s counsel, “ that, before the defendant can be convicted of the offense charged in the indictment, there must be evidence tending to corroborate the complainant as to the commission of the act charged. Without such corroboration the defendant cannot be convicted.”

While corroboration is not, therefore, necessary, taking into consideration the nature of the charge; where a complainant’s testimony is unsupported, it should be, as in a case where supported, of a character so conclusive as to leave no reasonable doubt of the prisoner’s guilt. No one having been present at the interview between the complainant and the prisoner when the crime is alleged to have been committed, and the conviction having been secured on the complainant's evidence alone, contradicted as it was by the prisoner, this should be examined and analyzed to see if it has such force and weight as to justify a conclusion that the prisoner was guilty of the crime charged, beyond a reasonable doubt It is true that upon collateral matters, and to discredit the prisoner’s version, other witnesses were introduced; but on the main, substantial charge the conviction was obtained solely upon the complainant’s testimony. This necessitates an examination of the record to determine if justice requires the affirmance of the judgment

The prisoner, a real estate agent, first called at complainant’s house in the month of April; and prior to May 20, 1891, which is the date fixed when the crime is alleged to have been committed, he made a second call, both with reference to a sale of property owned by Mrs. Allan or her husband. Her version, given upon the trial, of what took place on May 20th, is thus detailed: She let the prisoner in, and upon his stating that he had some papers which he would like her to sign, in connection with the sale of the property, she invited him upstairs, into the parlor, which was on the second story (it being an English basement house), where she kept the pen and ink; that the defendant closed the door as he went in; that, when the complainant went to open it, he seized hold of her hands, and prevented her from doing so ; that he put her against the wall, put his knee against her, and also put the side of his body against her; took her two hands, put them, under his arm, somehow, and unbuttoned his trousers; that he then put his shoulder against her, then, with one hand, got hold of her, and pushed her right against the wall; that she could not see what he was doing with his other hand, but could feel that he was unbuttoning his trousers; then there was quite a struggle, and the following conversation is stated to have taken place between the parties:

“ I told him, if he did not let go, I would tell his wife, and I would also have the law on him. He laughed at me, and said I ought to feel myself very highly flattered; that a great many handsome women in Hew York had offered themselves to him, and that he had never paid a dollar. He said that, if I put the law on him, that he did not fear arrest, and he said that there was no judge in Hew York that would convict him. He said he was a Tammany boy, and had a great pull, and said that my social position was nothing, and said, as for my name, he said he would have no regard for the truth.”

Prior to the trial the complainant stated her grievance, once in a letter to her husband, and again in the police court In the former she said:

“ As soon as I got in, he shut the door, and caught hold of my hands, and we had a tussle round the room; he unbuttoned his pants, and grabbed me by the leg as I was falling; he having tripped me with his foot; as he did so, it loosened my hands, and I sprang around one of our big arm-chairs, and rushed out of. the room ; I ran upstairs, in my own bedroom, and bolted it, and watched through the window for an officer, but he went out, himself, before I could see one.”

The complainant in the police court recites:

“ That on the 20th of May she was indecently assaulted by John P. Kirwan, who came into deponent’s parlor, and forcibly attempted to throw deponent down on the floor, and while his person was exposed, he forcibly placed his hand on deponent’s thigh.”

She further testified upon the trial that on one of his visits prior to May 20th, on being informed that her husband was sick, and absent in Texas, where he intended to remain two years, the prisoner remarked: “ That it was a pity I should be left alone without a husband for two years. I told him that was none of his business; ‘ I have cut my eyeteeth, and lost them, and I don’t want any such talk.’ ”

Notwithstanding her estimate of the prisoner, she thereafter received his visits until the 20th of May, and then, in the absence of all other persons from the house, she invited him up into her parlor on the second floor. During the fifteen minutes spent in that room, while the prisoner was attempting an indecent assault upon her, she testified that she did not scream, or make any outcry whatever, though her house was situated in West Twenty-first street, where persons at that time in the morning, between 10 and 11 o’clock, were undoubtedly passing. We are thus left to conclude that in the way of noise or outcry, outside the struggle, there was only the conversation already detailed. From that time, May 20th, no steps were taken to punish the prisoner until June 23d, when the complaint was made to a police magistrate. The letter to her husband was on June 25th. It is true she gives her explanation of why she did not proceed sooner, that on June 19tb she saw her lawyer, which was after the prisoner had called the fourth time, and at her request the attorney wrote a letter, in which he said:

“ John Kirwan, Esq. — Dear Sir: Mrs. James Allan, of 449 West 21st street, has consulted me as to some annoyances which she claims to have been subjected to by you; and I have advised her that it would be unnecessary to take measures, at present, further than to write you this note, which I trust will have the effect of inducing you to discontinue your visits.”

In further explaining her reason for not proceeding sooner, she stated that she aid not want her husband, who was sick, to be brought back to the city, or made worse, by knowledge of the prisoner’s attack, and that she would not have complained at all, were it not for the prisoner’s subsequent visits. In this connection she was asked: “ Did not the attack affect you very much ?’’ and she answered: “ No, sir; not very much. I was all right. I was not hurt in any way. Question. It didn’t affect you any way ? Answer. Not very much.” This failure to make a complaint until more than a month after, taken in connection with this testimony and her lawyer’s designation of the offense as “ an annoyance ” furnishes a probable explanation of what did occur on May 20th. The fact that she did not intend to prosecute, and that she moved because the prisoner subsequently visited her, is consistent with the view that what was designated as “ an annoyance ” was subsequently enlarged into an indecent assault, finally resulting, upon the testimony, in a conviction of an assault with intent to commit rape. That more occurred than a mere conversation about real estate, in the interview between them of May 20th, as testified by the prisoner, the record clearly shows; but that it amounted to an indecent assault, or attempt to commit rape, the testimony does not establish beyond a reasonable doubt. That the prisoner acted in a vulgar and familiar way from the time of his first visit is apparent; and his untruthful statement of the advances made was what justly militated against him with the jury. On the other hand, when a female permits undue familiarity in speech, and continues to receive visits from a person whose character is thus laid bare, she is not entitled to have much attention paid to her complaint, except in cases where the man attempts to touch or assault her; thus employing either force or violence, causing either mental or bodily suffering. The reason for this is both natural and apparent. A word or look, not to speak of an indelicate suggestion, is enough to put a rightly sensitive woman on her guard; and, after being thus warned, if a woman offers the occasion or opportunity to a disreputable and evil-minded man to see and converse with her alone, she, to that extent, deprives herself of that jealous regard which the law extends to women who, without fault, are subjected to even the slightest insult.

We'do not in this intend to reflect on Mrs. Allan. She proved herself to be a good wife -and a virtuous woman. But had she been of a more delicately sensitive nature, after repelling the first advances or indelicate suggestions of the prisoner, she would never have afforded him the opportunity, on May 20th, of seeing her; much less would she have invited him into a parlor on the second floor at a time when she was entirely alone in the house. Had she treated him as he deserved, by shutting her door against him, she would have saved herself the attack on her honor which she testifies was made, and the subsequent publicity and trouble toller which followed. This lack of sensitiveness, if the assault was as aggravated as claimed, is again shown by her delay in proceeding to punish, and her statement that she was neither much hurt nor affected by it. Delay in making a complaint has ever been regarded as a fact to be considered in weighing the credibility of a complainant. The reason is that the offense is of such a character, affecting, as it does, that which all true women value most highly, that the natural impulse of a woman who suffered such a grave injury would be to have her outraged honor immediately avenged by the punishment of her assailant. The rule is thus stated by Woodruff, J.:

“ In a case in which the fact of complaint is admissible, it is, perhaps, competent to explain the want of such early complaint by facts which show that it was impracticable, or that it was prevented by circumstances consistent with the natural impulse to complain thereof, so far at least as to destroy that presumption of falsehood derivable from concealment on the part of the female." Baccio v. People, 41 N. Y., 271.

Taking all her explanations of the delay in complaining, these are hardly consistent with a view that the prisoner was guilty of any such aggravated assault as she finally testified upon the trial. She stated that he did not injure or affect her much by the attack, which he must necessarily have done if made in the way and to-the extent claimed. The prisoner, apart from his untruthful statement of what actually occurred at the interview, was shown to be a man in comfortable circumstances, having a wife and child. Many reputable witnesses were produced to his good character.

Weighing the unsatisfactory character of the evidence against, him, and giving the weight which ordinarily should attach to-proof of good character, a reasonable doubt is created as to defendant’s guilt of the crime of assault in the second degree, which is defined ,l as assault with intent to commit a felony.” or, in this, case, “ rape,” but which would, under the instructions of the learned recorder, have justified a conviction of the lesser offense, or assault in the third degree, which, in view of the annoyance to which the prisoner subjected the complainant, would be his proper punishment. We do not see, upon such unsatisfactory evidence, no mental or physical harm having resulted to complainant, what public or private good would be conserved by consigning the prisoner, a man of family, with a character shown to have been good previously, to a long term in the penitentiary. Upon a careful review of the entire evidence, we do not regard the verdict as justified, because not based upon that character of evidence which appellate tribunals insist shall form the basis of a verdict which consigns a man of previous good character to a long term of imprisonment. We are of opinion, therefore, that the judgment should be reversed, and a new trial had.

Van Brunt, P. J.

The defendant was convicted of an assault upon the complainant with intent to commit a rape. Repeated examinations have convinced me that there is no ground in the evidence, as produced upon the trial, upon which to sustain such a conviction. It is true that there are no exceptions contained in the record which raise a point which seems to be fatal to the conviction ; but under the general power which the court has, in furtherance of justice, in cases of this kind, it seems to me that there should be a reversal of the conviction as had. If the defendant had been convicted of an indecent assault (assault in the third degree), such a conviction might very well, upon the evidence, have been sustained. But there seems to be absent from the evidence, as it appears in this record, an intent to have sexual intercourse with the complainant against her will, — a necessary ingredient of the crime of which the defendant has been convicted. And I am led to this conviction from the testimony given upon the part of the complainant. It appears that prior to the alleged attempt the complainant had bad various interviews with the defendant, one on the 29th of April, in which the question of the ownership and the proposed sale of certain property owned by the complainant’s husband formed the subject of conversation. On the 6th of May the defendant called again, and an interview was had in the hall, the children of the complainant playing around, in which the question of the sale of the house was again spoken of; and the defendant asked if the complainant would see a customer, and she said “yes.” He said: “Well, I will be here in a week or two with him.” Then the defendant stated that he desired to see the husband of the complainant. She told him that he could not see her husband; that he would be gone a couple of years in Texas. Then the defendant made a remark that it was a pity that the complainant should be left alone without a husband for two years, and the complainant replied that it was none of his business; that she did not want to hear any such talk, and, if he was prepared to talk like that, he had better go. He said : “I beg your pardon ; I don’t mean anything wrong; I know a great many women who would not take any insult from that.” She said: “ I do; I don’t want any such talk ; I have cut my eyeteeth, and lost them; I don’t want any such talk.” He said : “That is all right,” and he was going to go, but it commenced to shower, and he had no umbrella; and. as complainant could not shut the door in his face, she said, “You had better wait until the shower is over; ” and he sat down on the lounge, and waited in the main hall downstairs. In about two weeks, on the 20th of May,’ he called again, and the complainant opened the door. He saluted her by saying: “ Good morning; you look very pleasant this morning.” She said: “lam not at all well; 1 have had two chills; I am expecting my mother down.” She then asked, “Where is your customer?” He said: “I have not had the pleasure of seeing him.” But he said : “ I want to talk to you further about this matter. The price you ask is too much, altogether. I have also some papers that I would like you to read or sign, if you see fit.”

Complainant said: “‘Well, I don’t keep pen and ink down here, but I have them upstairs,’ and I asked him into the parlor. He went upstairs, into the parlor, with me, I went first, and followed me into the room, and, as we went in, I went in first, and he closed the door behind us. When he closed the door, I said: ‘ Don’t close the- door. Its too warm in here.’ He said: ‘Well, I’ve got business, and I don’t want anybody to hear me saying my business.’ I said: ‘ There is nobody in the house to hear you, and' I want to open the door; ’ and when I went to open the door he seized me by my hands,” And then occurs the interview which formed the basis of this conviction, an interview lasting from fifteen to twenty minutes. On the 27th of May the defendant called again upon the complainant, and remained in the lower hall, and she talked to him from the stairs. She refused to have any business transactions with him whatever, and stated that she had enough trouble of her own, without a dirty loafer like him coming around. Ou the 18th of June the complainant heard that the defendant had called again, and on the 19th went to consult a lawyer; and a note dated the 20th was written by the lawyer to the defendant, saying that the complainant “ has consulted me as to some annoyances which she claims to have been subjected to by you; and I have advised her that it will be unnecessary to take measures at present, further than write to you this note, which I trust will have the effect of you to discontinue your visits." On the 23d of June the complainant saw the defendant at the front gate of the house. She was going in, and told him: “ Don’t you dare go into that house,” and on the same day made the complaint to a police magistrate of the alleged attempt upon the part of the defendant to commit rape upon hfer. Five or six days afterwards she wrote a letter to her husband, in which she detailed the circumstances of the alleged assault, and the subsequent events, and in which her statement as to what occurred on the interview of the 27th of May is absolutely at variance with the testimony given upon the trial. In her evidence she states that she did not go downstairs, but spoke to him from the stairs. In her letter she says that she went downstairs, and he asked her to be seated. She said: “ No, I will not.” That he then got hold of her by the shoulders, and tried to force her into a chair, and the servant, whom she told to watch, thought he was trying to kiss her; but she thought he wanted to whisper in her ear, because he kept saying: “ Speak low,” and she screamed: “No; if you can’t speak loud, I will not listen ; ” and she went upstairs, and left him sitting there.

It seems to me that the conduct of the complainant herself is absolutely inconsistent with the idea that she understood that this defendant had made an assault upon her with intent to commit a rape. It is altogether in harmony with the theory that an indecent assault was committed. But that the complainant, until a long time afterwards, believed that there had been any intent to use violence on the part of the defendant, seems to be entirely inconsistent with the whole atmosphere of the case. It is incredible that while an assault was being committed, with the intent of obtaining the desired end by violence, any dialogue should have been had, such as is detailed by the plaintiff, laughing, using argument and persuasion, threats upon her part to tell his wife, and have the law upon him, she showing no fear, and making no outcry, and such like, lasting fifteen or twenty minutes, and then finally escaping without any difficulty. This seems to be utterly at variance with the idea that there was any intent upon the part of the defendant to accomplish his object by brute force, or that the complainant so believed. The interview of the 27th of May was also inconsistent with the idea that the complainant then believed that the defendant had made an attempt to commit so atrocious a crime against her. So was that of the 22d of June. The letter of the attorney of the 20th, also, does not even hint at the suggestion of so grave an offense. The late complaint, and the letter to her husband, in which she states, in so vital a point, the interview of the 27th of May so differently from that of her testimony upon her trial, further accentuates the probability that the idea of a rape being attempted was not entertained until long after the event

It further appears, upon an examination of the charge of the learned recorder, that the jury may have been misled into overlooking the distinction between assault in the second degree and assault in the third degree. It is true that during the charge the learned recorder distinctly stated the difference between the two grades'of crime; but in two or three places expressions were used, to which his attention was not called, to be sure, but which may have produced an erroneous impression upon the jury, and particularly as one of them was in answer to a question by the foreman. In one place the learned recorder said:

“ If you come to the conclusion that the evidence would not warrant you in arriving at the conclusion that he intended, in making this assault upon the person of the complainant, to have an act of sexual intercourse with her on that occasion, but that he seized her by the wrist, and pressed her against his person, and struggled with her in that room, he would then be guilty of assault in the third degree, and not of the second, because, unless the evidence satisfies you that the assault was with the felonious intent to commit the felony of rape upon this woman, he cannot be convicted of assault in the second degree.”

The last part of this proposition was correct; but the first conveyed an entirely erroneous impression, in that,' even if the jury were of the opinion that the evidence would warrant them in arriving at the conclusion that the defendant intended, in making this assault, to have an act of sexual intercourse with her on that occasion, he still might not have been guilty of assault in the second degree. It was only if he intended, in making the assault, to have this act of intercourse on that occasion against her will, that he would have been so guilty. He may have presumed in this struggle that she would finally consent; and if he believed she would finally consent, no matter when, or because of what persuasion, even if some of such persuasion was physical, the charge of attempt to commit rape was not sustained. This erroneous impression was accentuated by the answer which the learned recorder made to the foreman, who asked:

“ Will it make any difference in the degree of assault, if we take into consideration that the man made approaches to the lady, improperly, on his first visit, and was allowed to re-enter the house a second time ?”

To this the learned recorder said:

“ I told you you had a right to take any evidence of that character into consideration, in determining what the intention of this man was at the time he committed the assault, whether his intention was to have sexual intercourse with this woman or not.”

That was not the question which was to determine whether the defendant was guilty of an assault in the second degree or not Even if he did intend to have sexual intercourse with her, and the assault was made with such intention, he was not necessarily guilty of assault in the second degree. It was only if he intended to have such intercourse against her will, by force. And in this answer to the jury this important and vital distinction seems to have been lost sight of.

And, again, it seems to me that the recorder may have produced an erroneous impression upon the question of intent by what he stated in reference to the conversation had between the complainant and the defendant at the second interview. He said, referring to the testimony as to that remark which was made about the absence of her husband, and about the misfortune of a woman of her appearance being compelled to remain absent from her husband for so long a period as two years:

“ That, of itself, would probably amount to nothing, if such a remark was made. But, when that remark is taken in connection with what it is claimed subsequently occurred in the parlor between this man and the woman, it is a matter which may have some significance, some bearing, as to what this man’s intention was at the time it was alleged by this woman that he assaulted her in the parlor of that house.”

It is true that this conversation may have tended to show that, at the time this man assaulted her, he.intended to have intercourse with her; but it did not in any way tend to show that he intended to have such intercourse against her will. On the contrary, it seems to me that the legitimate conclusion from that language was that, if there was any such intention, it was that such intercourse should take place by and with her consent.

I think, from all these circumstances, that the conclusion arrived at by the jury was erroneous, and that the defendant should have a new trial. I, therefore, concur in the conclusion reached by Mr. Justice O’Brien, ¡

Patterson, J.

I do not find any technical errors in the record before us, either in the rulings of the recorder on evidence, or in his charge; and yet, on the whole case, I cannot resist the conclusion that inj ustice has been done in convicting the prisoner of that degree of crime for which he .was sentenced. He might well have been found guilty of assault in the third degree, but the testimony of the complainant is most unsatisfactory concerning that assault being committed for the purpose of having sexual intercourse with her, against her will, and, therefore, I concur in the direction for a new trial.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The American National Bank of Providence, App’lt, v. William R. Grace, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Pleading — Fraud.
    In an action to recover damages for fraud and deceit, a statement of the character of the deceit and fraud practiced was fully set forth in the complaint together with the allegations that the stalements and representations were fraudulent v hen made and so known to be by defendant, and were made by him to deceive plaintiff, and that he “was then informed and knew of facts and circumstances sufficient to charge him with knowledge of the falsity thereof.” Held, that the latter allegation was not obscure and that a motion to make it more definite and certain should not have been granted.
    Appeal from order directing plaintiff to amend its complaint by making certain allegations thereof more definite and certain.

      James H. Townsend, Jr., for app’lt; Coudert Bros. (F. R. Coudert, of counsel), for resp’t.
   Per Curiam.

The action is for fraud and deceit, by which, as alleged, the plaintiff was induced to purchase of the defendant two promissory notes, and to pay therefor the sum of $19,600. A statement of the character of the deceit and fraud practiced is fully set forth ; but instead of the usual averment that the false representations were knowingly made, and material facts which should have been communicated to the plaintiff were suppressed, the complaint in one of the paragraphs thus alleges :

“ Seventh. That, as plaintiff has been informed since the failure of said firm of Grant & Ward, and verily believes, the said statements and representations made by the defendant to plaintiff, as aforesaid, were each and every one false and fraudulent at the time they were made, and were known by the defendant to be false and fraudulent when he made them; that said statements and representations were calculated to deceive the plaintiff, and the same were made by the defendant with the intent to deceive and defraud this plaintiff, and in making said statements and representations, the defendant assumed and intended to and did convey to plaintiff the impression that he had actual knowledge of the matters so stated and represented, when defendant was, at the time, conscious that he had no such knowledge, and was then informed and knew of facts and circumstances sufficient to charge him with knowledge of the falsity thereof, which facts and circumstances were unknown to this plaintiff, and which defendant then knew were unknown to this plaintiff, and which defendant fraudulently suppressed and concealed from this plaintiff.”

It will thus be seen that, after fully setting forth in the complaint the false statements, the defendant’s knowledge that they were false is thus alleged in two ways: First, that defendant knew his statements to be false; and, second, that he knew of facts and circumstances sufficient to charge him with knowledge of the falsity of his statements. It is insisted that this second allegation is indefinite and uncertain, and it is from the order compelling an amendment of the complaint in this particular that this appeal is taken.

It is urged that the defendant mistook his remedy, which should have been for a bill of particulars, instead of a motion to make the complaint more definite. The distinction between the two has been frequently pointed out, and, as said in Rouget v. Haight, 57 Hun, 119; 32 St. Rep., 452, they show “how slight a difference may exist between the conditions requiring the application» of the one or the other.” In the case last cited the rule was thus stated:

“ It appears to be settled that, if the charge or defense be definitely stated, although the statement involves details, it is sufficient to put the party to an application for a bill of particulars, and compels him to resort to that remedy, although the result of either application would be the same.”

And in Jackman v. Lord, 56 Hun, 192; 30 St. Rep., 507, the presiding justice of this court said:

“We do not understand that, when a general allegation in the complaint is sufficient to make a good cause of action, the court can compel the allegation of specific facts leading to the conclusions alleged in the complaint”

Again, in Brownell v. Bank, 13 W. Dig., 371, it was held that if, looking at the complaint, the court can see with ordinary certainty the meaning of the different allegations, and the cause of action intended to be set up by them, the pleading is not indefinite. And in Cook v. Matteson, 33 St. Rep., 497, citing the last case, it was said:

“ The motion is to be determined upon an inspection of the pleading, and if, from such inspection, the court can see with reasonable certainty the meaning of the allegations, and the cause of action intended therein to be set forth, the pleading will be held sufficient to resist a motion to make it more definite.”

Applying these rulings, or taking the one which the respondent furnishes, viz., that where a specific allegation is obscure, the remedy is by motion to make more definite and certain, we think the conclusion to be reached upon an inspection of the pleading is against the view contended for by respondent. We fail to see in what respect the specific allegation is obscure. It is true that the evidence to establish this allegation is not set forth, nor is that necessary in a pleading. Hpon reading this complaint, no doubt can exist as to what the allegation means. It is a statement that the defendant “knew of facts and circumstances sufficient to charge him with knowledge of the falsity thereof.” This is but a statement that the defendant had reasons for knowing that the representations made were false, that they were not known to the plaintiff, and they were such that good faith on the part of the defendant required him to make them known to the plaintiff. We agree with the appellant that the effect of granting the motion would be to compel a disclosure of its evidence, because to require a statement of the facts and circumstances known by the defendant, and which are claimed to have been sufficient to charge him with knowledge of the falsity of the representations, is but asking the plaintiff to disclose what evidence he has of defendant's knowledge in this particular. We do not think that' there is anything indefinite or uncertain in the allegation ; and where, as here, the charge relates to facts which must be shown to have been within the knowledge of the defendant, he is not entitled to the relief sought. Besides, as said in Williams v. Folsom, 57 Hun, 128; 32 St. Rep., 455, “ allegations of fraud are not required tobe stated with great particularity.” We are of opinion, therefore, that the motion should not have been granted, and the order appealed from is, therefore, reversed, with costs and disbursements, and the motion denied.

Van Brunt, P. J., O’Brien and Follett, JJ., concur.


author: Van Brunt, P. J.

text:
    The People, Resp’ts, v. Eugene A. Pinckney, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Larceny — False pretenses.
    On the trial of an indictment for obtaining money on a fraudulent check, the jury has a right, upon testimony showing that when the defendant was charged with drawing a check purporting to he signed by a mythical person he made no denial, to find that such was the actual fact.
    2. Evidence — Comparison of writinqs.
    The submission of a disputed and a genuine writing to the jury must be in connection with testimony of witnesses in regard to their validity or authorship; and independent of such testimony, such submission cannot he made to them for arbitrary comparison.
    Appeal from a judgment of the court of general sessions of the peace for the city and county of New York, entered upon a verdict of a jury finding the defendant guilty of the crime of grand larceny in the second degree.

      John R. Heinzelman (Dennis McMahon, of counsel), for app’lt; De Lancey Nicoll, dist. att’y (Henry B. B. Stapler, asst. dist. att’y, of counsel), for the People.
   Van Brunt, P. J.

The defendant was indicted, charged with the crime of grand larceny in the second degree. It appears that on the 14th of May, 1892, the defendant called at the store of one Denholme, who, with his partner, carried on the business of dealing in shirts and men’s furnishing goods, and purchased some goods of the value of $12.45, and requested that a check, which he then presented, for $96.75, be cashed, the amount of the purchase which he then made to be taken out; also the sum of $4.50, the amount of a purchase made by him a few days previously.

The witness Denholme asked the defendant if the check was good, if it was a good business check, and he said: “ Yes, it is good. I have sold that man lots of goods, and I would ship him a car load of goods, if he wanted them.” The check was received, and the balance, in money, paid to* the defendant. The check was dated at Belle Plaine, Iowa, 10th May, 1892, drawn on the First National Bank, to the order of the defendant, for the sum of $96.75, and signed, “Edward Thomas,” and duly indorsed by defendant Mr. Denholme deposited this check in the Chatham Bank, and in about a week it was returned, protested for nonpayment. He then had an interview with the defendant, and said to him that “ the bank writes that this party is a myth; that you have been drawing fraudulently upon the bank.” Denholme further said, “I showed him a letter from the bank president, the first letter I got, and told him that this party was a myth, and that it was a fraudulent check." The only reply that the defendant made to this statement, according to Denholme’s testimony, was that he would make it good. The partner also saw the defendant in reference to this matter, to whom the defendant said: “This is all a mistake. That man is perfectly good." That he knew him personally, and did business with him for a long time. The partner then told the defendant that he was a myth, and had no account; that there was no such man in existence, to their knowledge; and the reply of the defendant was, “ These bankers make mistakes, sometimes.” In a subsequent conversation the witness told defendant that he had found out he had played the same game on a number of other people, and that he thought the whole transaction was crooked. The defendant’s reply was that “he had a good many names of people. He would talk about people who knew him; how well they conducted themselves. ],t was all a mistake.” Evidence was also offered, showing that on the 20th March, 1892, the defendant passed upon the witness Garner another check, for $100, drawn by himself upon the same bank, which was protested for nonpayment, and not paid; and also, before the return of this Iowa check, last mentioned, the defendant had deposited with the witness another check for $100, ■drawn on the First National Bank of Asbury Park, which check was returned unpaid, the check containing the letters, “N. A.,” which, the witness said, meant, “No account”

The check upon which the defendant obtained the money from the complainant, signed “E. Thomas,” and the check drawn upon the same bank, upon which the defendant obtained the money from the witness Garner, signed “E. A. Pinckney,” the district attorney claimed the right to show to the jury, and ask them to compare them. This was objected to upon the part of the defendant, and the court ruled that the district attorney might show them to the jury, in order to show the fraudulent intent of the accused; and the district attorney thereupon exhibited the checks to the jury, and asked them to compare the signatures of the two checks. The case having been submitted to the jury, the defendant was convicted, and from the judgment thereupon entered this appeal is taken.

It is urged upon the part of the defendant that there was no legal proof that any of the representations made by the defendant at the time of procuring the cashing of this check were false. There is no doubt that there is no direct proof of the falsity of these representations. It ts not necessary, in order to establish false representations, that the proof should be direct; but such evidence must be given, and such facts established, as tend legitimately and necessarily to show the existence of such intent. It appears from the evidence in this case, by competent testimony, that this check was sent for the purpose of collection, and returned, protested for non-payment, and that one of the witnesses had an interview with the defendant, in which he stated that the bank had written that the party signing the check was a myth, and that defendant had been drawing fraudulently upon the bank; and the only reply that the defendant made to this statement was that he would make it good. The jury had a right, upon testimony showing that, when the defendant was charged with drawing a check purporting to be signed by a mythical person, he made no denial, to find that such was the actual fact; and, therefore, the evidence upon this branch of the case tended to show that the representations made by the defendant were absolutely false.

But we think fatal error was committed in submitting the check purporting to be drawn by Thomas, and the one purporting to be drawn by Pinckney, to the jury, for the purpose of comparison of handwriting. It is apparent upon an inspection of the statute, chapter 36, of the Laws of 1880, as amended by chapter 555, of the Laws of 1888, that the jury, independent of testimony in regard to handwriting, are not permitted to become witnesses simply upon an inspection and comparison of handwriting. Section 1, of the act of 1880, provides that comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses in all trials and proceedings, and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. By the law 'of 1888 this rule was enlarged by the addition of a section providing that comparison of a disputed writing with any writing proved to the satisfaction of the court' to be the genuine handwriting of any person claimed on the trial to have made or executed the disputed instrument or writing shall be permitted, and submitted to the court and jury, in like manner; the words “ in like manner ” referring to the manner provided in the first section. Therefore, it is apparent that the submission of a writing to a jury must be in connection with the testimony of witnesses in regard to the validity or authorship of the various handwritings ; and that, independent of the examination of witnesses, such handwritings cannot be submitted to the jury for the purpose of arbitrary comparison by them. In other words, the handwriting can only be inspected by the jury in aid of the testimony of witnesses in reference to the authorship of the handwritings in question. In the case at bar, without any testimony tending to show that these checks were signed by the same individual, they were submitted to the jury. The jury thus became original witnesses, to determine the question according to their own sweet will or fancy. We do not think that any such practice was intended, under the laws in question, and that the submission of these signatures by the district attorney to the jury for arbitrary comparison was error.

It is not necessary to consider other points in the case, in which error was committed, but it is apparent that the defendant may have suffered injustice by the submission of the checks in question to the jury. The conviction must be reversed, and a new trial ordered.

O’Brien and Follett, JJ., concur.


author: Follett, J.

text:
    Alfred A. Liscomb, App’lt, v. Sarah K. Agate, Ex’rx, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Account stated.
    The rule that he who seeks to open an account stated or settled must surcharge or falsify, or both, is waived if the litigant against whom the evidence is offered does not object to the testimony upon the ground that it is unauthorized by the pleading.
    2. Same — Fraud.
    When the evidence shows that an account stated is fraudulent, it may be inquired into, though not surcharged or falsified in the pleading of the party questioning it.
    Appeal from a judgment for defendants entered upon the report of a referee in an action to recover the value of services and money expended, and for damages arising from a wrongful discharge.
    This action, begun May 11, 1888, is for the recovery (1) for services as an agent in care of an apartment house during March and April, 1888, at the agreed price of $432.32; (2) for $448.60, money expended in caring for an apartment house in March and April, 1888; (3) for $10,000 damages for the alleged wrongful discharge of plaintiff by defendants from their service on May 1, 1888, two years before the end of the term for which he had engaged. The defendants by their answer admitted that plaintiff’s salary for March and April, 1888, had not been paid, but denied any knowledge in respect to the expenditures claimed. They admitted that they discharged the plaintiff on the 1st of May, 1888, and alleged that it was for a sufficient cause. They also alleged, by way of counterclaim, that the plaintiff was indebted to them in the sum of $200 for rent of rooms for March and April, 1888; that he had retained, unaccounted for, large sums collected from the tenants of the apartment house, and had wrongfully received commissions upon the purchase of supplies for the house in a considerable sum. The referee found that the defendants were indebted to the plaintiff for the sums claimed for wages and moneys expended, which, with interest added, amounted to $1,064.95, and that the plaintiff was discharged for a sufficient cause. Efe also found that the plaintiff had wrongfully received $51.80 commissions from persons from whom he had purchased supplies for the house; that he was indebted in the sum of $241.76 for the rent of rooms for March and April, 1888 ; and that he was indebted for rents collected, and not paid over, in the sum of $1,544.78; which items aggregate $1,848.34, from which $1,064.95 was deducted, and a judgment given for the defendants for $773.39.

      Donohue, Newcombe & Cardozo (Benjamin N. Cardozo, of counsel), for app’lt; Holt & Butler (George C. Holt, of counsel), for resp’ts.
   Follett, J.

But three errors are urged as grounds for a reversal of the judgment: (1) That the referee erroneously disallowed the plaintiff $800 paid by him on account of rents collected ; (2) the referee erred in permitting the witness, Lord, to answer a question xvhich was objected to by the plaintiff; (3) the referee erred in receiving in evidence the accoúnt book of John Law & Co.

The payment of the disputed item of $800 by plaintiff’s check, dated April 28, 1887, is conceded by the litigants, and the only question in respect to it is whether it was paid on account of rents collected in March or April, 1887, or on account of rents previously collected. Upon this question the referee found with the defendants, and, we think, upon sufficient evidence. The learned counsel for the plaintiff now insist that this item having been charged by the plaintiff against rents received after April, 1887, in an account rendered by him to the defendants, it became part of an account stated, and could not be questioned, because the defendants did not, in their answer, specifically allege that it was erroneously charged against the March and April rents. An account stated is the equivalent of an account settled. Stenton v. Jerome, 54 N. Y., 480; Trueman v. Hurst, 1 Term R., 40.

It is a rule of pleading that he who seeks to open an account stated or settled must surcharge or falsify, or both; that is, if some item is charged that is erroneous, it must be specifically pointed out, which is a falsification; if some item is omitted, it must be averred, which is to surcharge the account. Story Eq. Jur., § 325; 1 Daniell Ch. Pr., 3d Am. ed., 692. But this rule of pleading may be waived by the parties, and, if the litigant against whom the evidence is offered does not object to the testimony upon the ground that it is unauthorized by the pleading, the point is waived. In this case the defendants did not claim on an account stated, but for moneys wrongfully withheld by the plaintiff, which was set up as a counterclaim. The plaintiff, in his reply, contented himself with a general denial, and did not plead a settlement or account stated, nor was any objection taken on the trial, in his behalf, to the evidence as to the state of the accounts, upon the ground that an account had been stated or settled which could uot be opened unless surcharged or falsified by proper averments in the answer. This question cannot be raised for the first time on appeal. The point has been waived, even though it had conclusively appeared by the evidence, which it does not, that the account embracing the $800 item had become a stated one. There is a rule of pleading which is equally fatal to the plaintiff's position. When fraud is charged in an account, and is proved, it is a sufficient ground to open the whole account. Bruen v. Hone, 2 Barb., 586 ; Story Eq. Jur., 523; Story Eq. Pl., § 801. The defendants averred in their answer that the plaintiff had fraudulently charged them with the full face of bills rendered by third persons for materials and labor furnished, and had received and retained for his own use, from those persons, percentages of their amount. This fact was found by the referee. When the evidence shows that an account stated is fraudulent, it may, as before stated, be inquired into, though not surcharged or falsified in the pleading of the party questioning it.

The only other point to which our attention is called by the counsel for the appellant is raised by two exceptions taken at folios 703 and 704. John Law and John Gr. McGowan were partners, under the firm name of John Law & Co., who were employed by the plaintiff to work on the apartment house. The referee found that $12.76 were allowed by them to Liscomb as a percentage on the accounts presented and paid for work performed. Mr. Law testified that he generally superintended the work on that house, and Mr.. McGowan kept the books of the firm. The following question was asked Law by the defendant’s counsel:

“ Question. Did you give to Mr. McGowan a correct statement of your transactions with Mr. Liscomb, as they took place, for entry into the ledger ? Objected to as calling for an opinion of the witness. Question allowed, and exception taken. Answer. Yes, sir; invariably. Q. And that is so in regard to all your transactions with Mr. Liscomb ? A. Yes, sir. Ledger account, appearing on pages 75 and 213 of the ledger, offered in evidence by defendant’s counsel. Objected to as incompetent. Admitted. Exception taken. ”

The first objection is clearly untenable. The question did not uall for an opinion, but for a fact. The objection to the admission of the account was properly overruled. McGowan, the other partner, had previously testified that he made all of the entries iji the Liscomb account, and that he knew that the work represented by the entries had been done, and that the charges were correct, of his own knowledge. He had also testified that he could not state the items from memory, but could by refreshing his recollection by the book.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: O’Brien, J.

text:
    John W. Boughton et al., Resp’ts, v. Millard F. Smith, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Appeal — (Jase.
    Where the case contains no statement that it contains all the evidence presented on the trial, the appellate court cannot review or determine the question of preponderance of evidence, or any of the facts.
    2. Contract — Performance.
    In an action for work done under contract, it appeared that when first done it was not as agreed, but on defendant’s expressing dissatisfaction plaintiffs undertook to remedy it, with which work defendant expressed satisfaction. Feld, proper to submit to the jury whether or not pla.intiffa had substantially performed their agreement.
    3. Same — Charge.
    In such case a request to charge “ that, if the jury believes that the defendant did not perform his contract, then the plaintiffs are not entitled to any compensation,” is properly refused. The appellate court cannot assume that the word “ plaintiffs,” and not “ defendant ” was in the request as made, or that it was a mistake of the stenographer, being bound by the record.
    4. Same.
    In such case the trial judge properly charged the jury that unless a substantial performance was shown the plaintiffs were not entitled to anything, and if they had they were entitled to recover the amount stipulated to be paid under the contract.
    5. Same — Evidence.
    A memorandum in a book made by one of plaintiff’s workmen, and purporting to be a statement of the days upon which plaintiffs did not work upon defendant’s premises, made in the ordinary course of business and properly proved, is admissible.
    Appeal from judgment in favor of plaintiffs, entered upon verdict.

      H. D. Birdsall, for app’lt; Larned & Warren (W. P. Knapp, of counsel), for resp’ts.
   O’Brien, J.

In 1887 plaintiffs made an agreement with the defendant to make and lay parquette flooring in the latter’s house, which was to be of the best material and workmanship, and for which the defendant agreed to pay $1,350. Whether the contract had been performed by plaintiffs was the question litigated upon the trial, which the jury decided in plaintiffs’ favor. The principal ground urged upon this appeal is that such verdict was against the weight of evidence. We cannot, however, upon this record, consider any. such question. It contains no statement that all the evidence presented upon the trial is now before this court, nor is any appeal taken from any order denying a motion for a new trial. We cannot, therefore, review or determine the question of the preponderance of evidence, or any of the facts. As the record thus stands, it brings up for review only questions of law, and presents for our consideration those questions which arise upon the judgment roll and exceptions.

The first exception is that taken to the refusal, at the close of plaintiffs’ case, to dismiss the complaint. This raises the question as to whether there was sufficient evidence presented by plaintiffs to support the verdict. In determining this question, however, it should be noticed that it does not, as already stated, involve a consideration of preponderance of evidence, but only its sufficiency. In other words, unless it appears in the record that there was sufficient evidence given to justify the denial of the motion to dismiss the complaint, then the exception is good. We have examined the testimony presented by the plaintiffs, and although it therefrom appears that, when the work was first done, it was not in accordance with the agreement of the parties, still, upon the defendant expressing dissatisfaction, the plaintiffs again undertook to supply the deficient material and workmanship with other and better flooring, and continued, with the defendant’s permission, removing the objectionable portions, until the defendant himself expressed his satisfaction with the manner in which the work was finally completed. Upon such evidence it was proper for the court to deny the motion to dismiss the complaint; there being sufficient evidence to present the question to the jury as to whether or not the plaintiffs had substantially performed their agreement It is true that the defendant’s evidence, as printed in this record, would show that the defendant took issue with the plaintiffs’ version as to the performance of the contract; but, for the reasons already given, such evidence cannot be considered in disposing of this exception taken to the refusal of the motion to dismiss the complaint. This consideration of the evidence also disposes of another exception to the refusal of the court to charge, as requested by the defendant, “ that the evidence in the case is uncontradicted that the plaintiffs have not performed their contract.”

Another request which was refused, and, for the reason of its obscurity, properly so, was that, if the jury believes that the defendant did not perform his contract, then the plaintiffs are not entitled to any compensation.” We cannot assume that the word 11 plaintiffs,” and not “ defendant,” was in the request as made, or that it was a mistake of the stenographer, because we are bound by the record as it comes before us, and are not permitted to indulge in the presumption that it is erroneous. This last request was followed by another, the language of which contained a similar confusion, and which, no doubt, for that reason, was by the court declined. But if we assume that the proposition which the defendant sought to have the court present to the jury was that, in the absence of proof of performance on the plaintiffs’ part, no recovery could be had, then the charge to the jury, and, notably, after all the requests were made and passed upon, the final statement of the trial judge, involved this very proposition of law; and just before retiring they were correctly instructed “ that, if the plaintiffs substantially performed their contract they are entitled to the full amount claimed. If they did not so perform it, they are not entitled to anything.” Although this involved the proposition which the defendant’s counsel seemingly desired to have presented to the jury, an exception was taken to it; and it is now urged that, as there was evidence in the case of the cost of repairing the floors, and putting them in the condition called for by the contract, the jury should have been instructed in such a way as to have permitted them, even though they concluded that the contract was finally performed, to have given the defendant credit for moneys so expended. This position, if contrasted with that apparently assumed by defendant in the requests, is an entirely inconsistent one, because it was sought by the latter to have the jury instructed that there could be no recovery unless full performance had been shown, whereas, in the former, it was insisted that the jury were to be at liberty to consider some testimony of expenditures made for repairing the floors, as against the amount for which the plaintiffs could obtain a recovery. We think that the trial judge, upon such evidence as it is proper for us to consider, correctly charged the jury that, unless a substantial performance was shown, the plaintiffs were not entitled to anything, and that, upon satisfying the jury that they bad substantially performed, they were then entitled to recover the amount stipulated to be paid under the contract.

There are some features of the case which, no doubt, inclined some of the jurors in defendant’s favor, as shown by the reluctance with which they reached their verdict, and these are equally apparent to us. It is no doubt a hardship for one who has made a definite contract, which has not been strictly performed within the time limited, to have his patience and his convenience subjected to a strain by the failure of those with whom he has contracted to perform their work as agreed. If, however, he submits to such inconvenience, and, though not obliged to, permits the mistakes first made to be subsequently remedied, so that finally there is a question as to whether or not the contract has been substantially performed, there is no redress, under the law as it stands, but to submit the question of fact upon such testimony to the good sense of a jury. And a conclusion reached, though reluctantly, by a jury, should not, except for prejudicial error, be disturbed, for the reason that it is desirable that disputes should be settled; and where the question between the parties, under a fair and impartial charge, has been submitted to a jury, this court, recognizing the principle that there should be an end to litigation, should not, unless for legal cause, destroy the result of the trial.

The most serious point urged is that presented by the admission of a memorandum or entries in a book made by one of the plaintiffs’ workmen, and purporting to be, among other things, a statement of the days upon which plaintiffs did not work upon defendant’s premises. Instead of allowing it, as would have been proper, as a statement of what the witness testified to, it was admitted to prove the facts themselves. This, under the rule of Howard v. McDonough, 77 N. Y., 592, could not be done. We think, however, that, having been made in the ordinary course of business, from day to day, there was warrant for the admission under the more liberal rule laid down in Mayor, etc., v. Second Ave. R. R. Co., 102 N.Y., 572; 2 St. Rep., 526. It may be that sufficient foundation had not been laid for this evidence, but this was not urged or taken as the ground of the objectiou. In other words, the vice in the admission of such evidence, that no proper foundation had been laid, was not called to the court’s attention, nor urged; and had it been, the court would no doubt have required additional proof, making it competent, before its admission.

Upon a review, therefore, of the questions presented by the judgment roll, and exceptions appearing in the case, we are of opinion that no error of law was committed sufficient to upset the verdict, and that the judgment appealed from should be affirmed, with costs.

Yan Brunt, P. J., and Follett, J., concur.


text:
    William M. Tebo, App’lt, v. Henry Gregory Jordan et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Charter party — Warranty as to seaworthiness op vessel.
    Where the owner of a vessel signs a charter party the law implies a warranty by him that the vessel is seaworthy, and to be so, it must be commanded by competent officers.
    2. Same — Negligence.
    In an action upon a charter party to recover for services of the tug, the defense being damages caused by the stranding of the tow, the question whether the tug’s master was negligent in his management, where the expert evidence is conflicting, is for the jury.
    Appeal from a judgment in favor of the defendant entered on the verdict of a j ury by direction of the court at circuit
    The plaintiff was the owner of the steam tug B. T. Haviland, and the defendants were partners under the flame of H. G. Jordan & Co., and engaged in the transportation of coal in barges from Newport News, New York and Philadelphia to Boston and other ports in the New England states. October 23, 1888, the parties to this action entered into a contract, of which the following is a copy:
    “ Articles of agreement entered into this 23d day of October, 1888, between H. G. Jordan & Co., of Boston Mass., and W. M. Tebo, of Brooklyn, L. I. The said W. M. Tebo agrees to charter the steamer B. T. Haviland to said H. G. Jordan & Co. from the morning of October 26, 1888, to May 1, 1889, either party having the privilege of cancellation upon one month’s notice, ‘to tow their coal barges from New York, Philadelphia, or Newport News to Boston, or some other safe port, not east of Portland, Me.; the steamer to be provided with a hawser on board, and, in eases of parting the barge’s hawser, to use the same for the balance of the trip free of cost to Messrs. Jordan & Go. When the steamer is in New York, and obliged to wait for barges to tow, the Messrs. Jordan have the privilege of sending the tug to Sandy Hook, seeking. The steamer is expécted to go at all times when, in the judgment of the captain, it is prudent and safe for his boat and tow; two days in each month to be allowed for washing and cleaning out boiler. In the event of the boat becoming disabled in machinery, the lost time to be at the expense of charterers. Pay-merits to be made on the first day of every month to W. M. Tebo for the amount of each month’s charter; the price to be twenty-two hundred ($2,200) dollars per month. In the execution of this charter, the dangers of the sea excepted, and the tug not held responsible for damages from that cause. A representative of Messrs. Jordan & Co. to be on the tug at any time when they see- fit, and free of cost to the tug, excepting food, which the tug is to supply. W. M. Tebo, Haviland.
    “ H. G. Jordan & Co.
    “Witness to both signatures: B. R Dunham.”
    The defendants used the tug from October 26, 1888, to December 8th of the same year, when they ceased to use it, and wrote the plaintiff as follows :
    “ December 8, 1888.

      “ Wm. Tebo, Esq.:

    “ Dear Sir — On behalf of H. G. Jordan & Co., of Boston, we are instructed to notify you that the tug B. T. Haviland will not be employed by them after this date, on account of the stranding on December 2, 1888, and other injuries received by the tows while under charge of said boat.
    “Yours respectfully,
    “Wing, Shoddy.& Putnam.”
    The plaintiff replied as follows:
    “Brooklyn, December 12, 1888.

      “Messrs. Wing, Shoudy & Putnam:

      “ Gentlemen — In answer to your notification on behalf of Messrs. H. G. Jordan & Co., of Boston, of the discharge of my tug B. T. Haviland from December 8, 1888, I will say I refuse to accept such discharge, as it is not in accordance with the terms of our contract, which provides for thirty days notice before such discharge can take effect; and I consider the boat is still under charter to Messrs. H. G. Jordan & Co. until said thirty days expires, which will be January 8, 1889.
    “Very respectfully yours,
    “W. M. Tebo. H.”
    December 2, 1888, the tug, while towing defendant’s barges Charter Oak and George Moon, laden with coal, from Mewport Mews, via Mew York, to Boston, was, with the barges, stranded at about six o’clock in the evening on Handkerchief shoals, remaining aground about an hour. At about six P. M. on the next day the barges were stranded in Boston harbor, and remained aground for about an hour. By these standings the barges were injured in the amount of $1,167.64, but the greater part of the injury was caused by the first stranding. Handkerchief and Shovelful lights are about three and a half miles apart, the latter being northeasterly from the former. Monomoy light is about a mile, and a little west of north, from Shovelful light. The channel from Handerchief to Shovelful light is narrow, with dangerous shoals on each side.

      The plaintiff claimed to recover the contract price for service from October 26, 1888, to January 8, 1889, amounting to $5,426.64........................ $5,426 64
    Less cash paid by defendants............ $2,059 00
    Earned by tug between December 8 and
    January 8 .......................... 725 00 2,784 00
    Plaintiff claims............................ $2,642 64
    The defendants assert that they were liable only for the service of the tug from October 26 to December 8, at the contract price, amounting to............... $3,226 64
    Gash paid...........................,. $2,059 00
    Damages to barges..................... 1,167 64 --$3,226 64
    The defendants allege in their answer that the strandings were caused by the unseaworthiness of the tug, and the negligence of its officers and pilot, who were, it is averred, incompetent. At the close of the evidence a verdict was directed for the defendants.

      Goodrich, Deady & Goodrich (William W. Goodrich, of counsel), for app’lt; Wing, Shoudy & Putnam (Joseph A. Shoudy, of counsel), for resp’ts.
   Follett, J.

Under this charter party the law implies a warranty by the owner, the plaintiff, that the tug was seaworthy. Putnam v. Wood, 3 Mass., 481-483; Kopitoff v. Wilson, L. R., 1 Q. B. Div., 377-380; Cohn v. Davidson, 2 id., 458; Iron Co. v. Huntley, L. R., 2 C. P. Div., 464; 1 Pars. Mar. Law, 238. A vessel which is not commanded by competent officers is unseaworthy. Walden v. Insurance Co., 12 Johns., 128-134; Draper v. Insurance Co., 4 Duer, 234; 2 Pars. Mar. Law, 135. The plaintiff was not a common carrier, and liable as an insurer of the safety of the barges, but he was liable for the damages occasioned by the failure of the master of the vessel to exercise reasonable care and skill in its management. The Margaret, 94 U. S., 494-496; The Webb, 14 Wall., 406; Wells v. Steam Nav. Co., 8 N. Y., 375. On this trial the defendants did not attempt to show that the vessel was unseaworthy by reason of defects in its hull, machinery or material equipment, but rested their defense solely on the ground that the captain and pilot were incompetent and negligent. In reviewing the evidence given on the former trial it was -held, 62 Hun, 514; 43 St. Rep., 9, that the trial court should have decided, as a matter of law, that the captain was negligent (1) in not anchoring his fleet at Handkerchief light, instead of proceeding on his voyage in the night, with a thick haze; (2) in not taking soundings between Handkerchief and Shovelful lights, which are three to three and one-half miles apart. On the present trial the evidence seems to have been greatly changed. After the plaintiff proved his contract, and introduced the letters of December 8th and 12th, and the necessary formal evidence, he rested. The defendants called the captains of the two barges, and their superintendent of the tow, who was on board of the tug at-the time of the accident.

Jones, the captain of the barge George Moon, testified: “The captain was justified, in my opinion, in going on, instead of anchoring; he was justified in going on if he knew the course and had a pilot aboard who was familiar with the course; I saw no necessity of anchoring, nor of their sheering over to port; I didn’t know what they sheered over for; no idea at all.” Hendrickson, the captain of the .Charter Oak, testified: “There was no fog.” That he saw the lights known as “Shovelful,” “Monomoy,” and “Pollock Rip." “I saw nothing in the condition of the wind or weather to require him (captain of the tug) to anchor; I thought it was good navigation for him to go ahead.” Van Cleaf testified that it was a clear, dark night. “ 1 say that originally starting for Shovelful light was good navigation.” “ There was nothing in the weather that,' in my opinion, required them to stop and anchor; they could have gone on perfectly easily; any navigator could see where they were.” He also testified that he, the captain of the tug, and its pilot all saw Handkerchiéf and Monomoy lights. George M. Hallett, a sea captain, called by defendants, testified that he was familiar with the coui’se from. Handkerchief light to Boston. He said: “I should say that on a dark night, with all the lights plainly visible, distinctly visible, a man who is familiar with the course should not have any difficulty in going over the course without running aground if he is familiar with it. I don’t see why he should. I don’t know of any reason if he knows all the lights.” Ruling, another navigator, called by the defendants, testified : “ If there was a haze on the water, so I would not see the Shovelful light vessel at all, for any reason, and I could see the Monomoy light distinctly, I would have some difficulty in going through safely with the Monomoy light in view; I could not steer the proper course with the aid of that light to carry me on ; in that case I would anchor, and wait until I could see the other lights; I would turn to the anchorage if the weather was so you could not see; I would not go blindfolded. * * * I never anchored a long tow in that place; I have passed over there, in a haze; J don’t know any one instance that I can call to mind now of passing over there when I could not see the Shovelful and could see the Monomoy.” This is substantially all the evidence given in behalf of the defendants which bears upon the question as to whether the plaintiff’s captain was negligent in not anchoring at Handkerchief light. The plaintiff’s captain testified: “I did not anchor because I didn’t think it was prudent to anchor,” etc. “It would not be good navigation to anchor her there.” “ It wouldn’t have been safe to anchor there at all.. It would be in the track of vessels, which is against the law.” Barnard, who was piloting the tug, testified that he had been a seafaring man since boyhood, had “ sailed over this route no less than a hundred times, and in my judgment the course of navigation which we took was good navi-, gation, I think.” “It would not have been a prudent thing to have anchored the vessel after passing Handkerchief light.” Curran, a sea captain, testified : “ Question. You don’t think it would have been good navigation to have anchored? Answer. No, sir. * * * It all depends upon the weather. If I saw Monomoy light clearly, there would be no difficulty in going forward, if I did not see Shovelful light, and it would be prudent to go ahead then.”

under this state of the evidence, it is impossible to sustain the ruling that, as a matter of law, the plaintiff’s captain was negligent in not anchoring his tow at Handkerchief light. The question was one of fact, and should have been submitted to the jury. In admiralty cases the court may determine the law and the facts, and the decisions of those courts afford but little light upon the question whether, under the practice in this state, an issue should be decided by the court, as a matter of law, or left to the jury, as a question of fact; and, unless these cases are considered with reference to the difference in practice of the two courts, they are likely to mislead the investigator. Whether it was negligent not to sound between Handkerchief and Shovelful lights was a disputed question of fact, which should have been submitted to the jury. Again, the proximate cause of the starnding on Handkerchief shoals seems to have been, under the evidence in this case, the shifting of the course of the vessel, after passing Handkerchief .light, from one and one-half to four points to the westward, which brought the vessels on the shoals. The captain and the pilot of the tug testified that the course was changed one and one-half to two points to the westward, while the defendants’ witness testified that it was changed four points to the westward. The difference in this narrow channel is not unimportant. All of the witnesses agree that when the course was changed the wind was blowing and tide flowing from the westward. The plaintiff’s witnesses testified that the change was made to counteract the assumed force of the wind and tide, and for the purpose of avoiding Stonehouse shoal, a dangerous one, which lay on the east side of the channel. By how much the course was changed was a question of fact, and also whether the change actually made, whatever found to be, was negligent.

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

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Edward C. James, Resp’t, v. James Henry Work, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Appeal — Settlement of case.
    Appeals seeking to review the action of the trial judge in settling a case are not regarded with favor, and his decision is conclusive upon the appellate tribunal, except in cases where it is apparent that there has been upon the resettlement a denial of a substantial right.
    2. Same.
    The rule (41) which provides that the appellant shall furnish a statement showing the time of the commencement of the action, is satisfied by the words “ on or about,” and a motion to resettle the case by the insertion of these words should he allowed, where the appellant contends that if the date were stated positively, it might he construed into a waiver of the point raised upon the trial.
    3. Same.
    A motion to resettle a case by striking out the words “ in equity suit,” which were inserted in the summons as an amendment to defendant’s proposed case, and were not used on the trial, should he allowed, as the issue was whether plaintiff first commenced an action in equity for an accounting and was thereby precluded from bringing an action at law for fraud, and the trial judge should not have determined it upon settlement of the case.
    Appeal from an order denying in part a motion made by defendant for a resettlement of the proposed case and amendments on defendant’s appeal from the judgment herein.
    The action was based on alleged fraudulent representations made between February, 1884, and May, 1884, by defendant, as to the solvency of the firm of Grant & Ward and the existence of certain contracts, by which plaintiff was induced to intrust to defendant large sums of money which he claims were lost by such deceit. Another action was brought by plaintiff against the same defendant, in which defendant was asked to account for profits alleged to have been made by him in the various transactions. On February 11, 1890, plaintiff made a demand on defendant for certain extra profits which he had not accounted for, and served the following summons on him: “Edward G. James, plaintiff, against James H. Work, defendant. Summons. You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff’s attorney within twenty days after the service of this summons, exclusive of the day of service, and, in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint.”
    On February 12, 1890, plaintiff served another summons on defendant, which, with the proof of service (Exhibit L4), was as follows: “Edward C. James, plaintiff, against James H. Work, defendant. Summons. To the above-named defendant. You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff’s attorney within twenty days after the service of this summons, exclusive of the day of service, and, in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint.” “ Robert McC. Robinson, being duly sworn, says that he is of the age of 21 years and upwards; that on the 12th day of February, 1890, between the hours of 2 p. M. and 3 p. M., at No. 2 Wall street, New York city, he served James FL Work, the defendant herein, with the annexed summons, by delivering to the same and b)r leaving a copy of the same with said defendant personally ; and he further says that he knew the person served to be the person mentioned and described in said summons, and to be the defendant in this action.” On March 22, 1890, two complaints, one in an action for fraud, and one in an action for an accounting, were served together. It was claimed by defendant on the trial that by making the demand on February 11th, and serving a summons immediately afterwards, plaintiff elected to ratify the agency of defendant, and to sue him as such agent for an accounting, and by serving the summons did then commence a suit for such accounting, and was thereby precluded from afterwards bringing an action at law for fraud.
    Plaintiff’s amendments Nos. 1 and 151 to defendant’s proposed case on appeal, which were allowed, were as follows: Amendment No. 1: “On page 1 strike out lines 13 to 17, inclusive, and instead thereof insert as follows : ‘ This action was commenced on the 11th day of February, 1890, by service of summons. The complaint was served on the 22d day of March, 1890. The answer of the defendant was served on the 11th day of April, 1890. The.’ ” Amendment No. 151: “ On page 190, in line 15, after the word ‘summons’ insert ‘in equity case,’ and between lines 16 and 17 insert the summons and proof of service, Exhibit L4, in full.”

      Adolph L. Pincoffs (Noah Davis, of counsel), for app’lt; Edward C. James, resp’t in person.
   Per Curiam.

Appeals seeking to review the action of the trial judge in settling a case are not regarded with favor, and the decision of the trial judge is conclusive upon the appellate tribunal, except in cases where it is apparent that there has been upon the resettlement a denial of a substantial right. This view disposes of all the questions raised on this appeal, excepting two, relating to the 1st and 151st amendments, which were allowed, and which, on motion, the trial judge refused to strike out.

The first amendment refers to the preliminary statement which, by the rules, is required to be inserted in the case, as to when the action was begun. The rule would be satisfied by the insertion of the words “ on or about ’’ February 11th, instead of fixing the date as positively of the 11th of February; and in view of the stress placed upon the position of the appellant that, if the date were stated positively, it might be construed into a waiver of the point raised upon the trial, we think it should be allowed. The reasons for this conclusion are more apparent when we come to. consider the 151st amendment, by which it was sought to have inserted “after the word ‘summons’ the words ‘in equity suit,’ ” which words sought to be inserted were not used upon the trial. It is not disputed but that the defendant then made the point that the equity suit was first commenced, and that thereby the plaintiff was precluded from afterwards bringing an action at law for fraud, and that the plaintiff’s evidence was directed to showing that this contention was unfounded, and that the summons marked “L4” was the summons in the equity suit. This, however, was the point at issue between the parties; and we think that the trial judge should not have determined this in plaintiff’s favor, upon the settlement of the case, which is the result of now characterizing the summons offered in evidence by the words “ in the equity suit.” The summons with the proof of service, or the exhibit just as it was presented, and with the offer made at the time it was presented, are entirely proper, and will appear in the case as settled. This, supplemented with the testimony on the part of the plaintiff, places the plaintiff’s rights with respect to this question in the same position as they were upon the trial. We think, therefore, that the order denying the motion for the resettlement in respect to these two amendments should he reversed, and in all other respects affirmed, without costs to either party.

Van Brunt, P. J., O’Brien and Follett, JJ., concur.


text:
    Marsden J. Perry, Resp’t, v. The Council Bluffs City Waterworks Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    CojRPOBATioirs — Bills and notes.
    Where the business of a corporation is transacted by its treasurer, without supervision being exercised over him by the other officers, the corporation is liable, to the amount paid and interest, on a note made by him in its name, and transferred to an innocent indorsee for value, even though its by-laws required the countersigning of all notes by its president.
    Appeal from judgment in favor of plaintiff, entered upon report of a referee.

      James L. Bishop, for app’lt; George B. Ashley, for resp't.
   O’Brien, J.

As stated by the referee in his opinion, this action is brought upon a promissory note, which reads as follows:

“ $5,000. New York, Nov. 23, 1886.
“ Four months after date, we promise to pay to the order of Allen & Stead, five thousand dollars, at the treasurer’s office, 44 Broadway, New York. Value received.
“ Council Bluffs City Waterworks Co.,
“ Henry Allen, Treasurer.”

It was indorsed by Allen & Stead, and sent by Allen to one Bradford, a person in Providence, E. I., who claimed to have facilities for obtaining the discount of mercantile paper. Bradford took the note in December, 1886, to plaintiff, at Providence, E. I, and asked for a loan upon it Plaintiff, remembering that a bank wherein he was a director had discounted such a note for Bradford, got that note from the cashier, and compared it with the one in suit, and found them similar in form ; and the president of that bank also told him there was another such note held by a savings bank in Providence, and that it was a good loan. Plaintiff, therefore, lent to Bradford $4,500 on the note, and he sent $3,500 to Allen, the maker, who entered the fact of the issue of the note, and the receipt of the money, on the books of Allen & Stead, in an account therein kept as the Council Bluffs Waterworks account; and he testified that he applied the proceeds to that company’s use.

The questions presented for review are whether the defendant corporation is liable upon the note, and, if liable, to what extent

Upon the former, as to defendant’s liability, we might content ourselves with resting the case upon the reasoning contained in the opinion of the learned referee, which, upon the evidence, disposed of the defenses that plaintiff is not a bona fide holder, for value, and that the note in suit was issued without authority of the defendant, and was not its obligation, and points out the distinction between this case and that of First National Bank of Middletown against this same defendant, 56 Hun, 412; 32 St. Rep., 85. It is not claimed that the evidence is insufficient to support the findings of fact made by the referee, and upon such evidence we think he has correctly interpreted the decisions, and drawn correct legal conclusions. He finds that during the period from some time in the month of October, 1885, to February 27, 1887, Harry Allen, as treasurer of the defendant corporation, made and issued in the name of the defendant, and to which the name of the defendant was signed by himself, as treasurer thereof, some forty or fifty promissory notes, to the order of, and indorsed, “Allen & Stead,” which were negotiated, * and money obtained thereon; that the reason for the making of such promissory notes to the order of Allen & Stead was that they were acting as the financial agents of the defendant, and it was to give additional credit to such notes, the credit of the corporation itself being poor; and although the by-laws of the defendant required the countersigning by the president, none of these notes so issued was so countersigned; that the note in suit was in form similar to these others; that during all this period, with the exception of one in May, 1886, no meetings of the board of directors were held, and at the one meeting no business was transacted other than the re-election of officers of the defendant; that Allen, though he sought to consult and advise with the president of the corporation, was referred to the latter’s law partner, who was also a director in the corporation; that none of the officers or directors used or exercised any official supervision over Allen, or his acts and transactions as treasurer, except the director who was the president’s law partner, and who, it would appear, was not only consulted with respect to the making of the promissory notes, and the obtaining of money thereon, but concurred, in the very beginning, with the making of such promissory notes; that further, he not only advised the making and issuing of such notes from time to time, but personally indorsed a large number of them, and one with the name of his firm, of which the president was a member.

A review of the evidence supporting these findings will sustain the referee, and justify his conclusion that Allen was practically the corporation, and that the case is brought within the principle laid down in Fifth Nat. Bank v. Navassa Phosphate Co., 119 N. Y., 256; 29 St. Rep., 686, because he was not only the treasurer of the defendant, but, as said in that case, “ he was consciously invested by the company with the broad, general power inseparable from the position in which it placed him as the sole manager of its affairs at its principal place of business.” Acting, therefore, within the apparent scope of the authority conferred upon him by the corporation, the latter is charged with liability, irrespective of the question of authority in fact. It would serve no useful purpose to traverse the grounds so carefully gone over by the learned referee, it being sufficient, upon this branch of the case, to say that we concur in his reasoning, and in the conclusion reached.

The question, however, as to the extent of the defendant’s liability remains to be considered. This note in suit, as shown, was delivered as collateral security to a loan of $4,500 made by plaintiff to one Bradford, under an agreement that the loan was to be paid in a few days, with interest at the rate of five dollars a day until such time as the loan was paid. If the recovery upon this note were to include the $4,500 and interest, as agreed upon, then it would amount to more than the principal and interest upon the note itself.

But the appellant insists that neither of these measure the extent, if answerable at all, of defendant’s liability, but that all that plaintiff can claim is the $4,500 advanced on the faith of defendant’s note, with interest thereon from the date of the loan at the rate of six per cent. In Todd v. Shelbourne, 8 Hun, 512, it was held that the indorsee of commercial paper, not valid as a legal obligation in the hands of the payee negotiating it, must be restricted in his recovery to the value, with interest, advanced by him to the payee upon the faith of it.” This and other cases are authority for the proposition that, where a negotiable instrument is not enforceable between the parties, a bona fide holder can only recover what he or some prior holder, through whom he derived his title, paid for it, with interest. Rand. Com. Paper, § 994. Taking the facts here, we think that this note was not valid as a legal obligation in the hands of the payee negotiating it, or in the hands of Bradford, who delivered it to the plaintiff as collateral security for a loan made by him, but that, when transferred to the plaintiff, it became in his hands a legal obligation against the defendant, but only to the extent of what was advanced upon the faith thereof. We think the principle of the cases which, under such circumstances, would prevent a profit being made out of the transaction, is applicable, and that, while the plaintiff is entitled to protection to the extent of the moneys he advanced, and legal interest from the date of the loan, he cannot recover either the face value of the note, with interest thereon, nor the amount loaned, with interest at the rate agreed upon by Bradford, of five dollars a" day. The difference, however, in the amount is easily computed, and, when ascertained, should be deducted from the judgment, and the judgment as so modified should be affirmed, without costs.

Yan Brent, P. J., and Follett, J., concur.