author: McAdam, J.

text:
    Charles H. Loeber, App’lt, v. Isaiah L. Roberts, Resp’t.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    Negligence—Fuse communicated to adjoining apabtment.
    The mere fact that defendant kept a furnace in his rooms above the plaintiff, and that fire communicated therefrom to plaintiff’s premises, is not sufficient to render defendant liable for the damages occasioned, thereby, in the absence of proof that the furnace was not properly constructed, or that defendant was negligent in its use. The rule res ipso loquitur does not apply in such a case, and such negligence is not to be inferred from the mere fact that fire communicated to plaintiff’s premises.
    Appeal from a judgment entered on the dismissal of the plaintiff’s complaint at trial term.

      W. C. Beecher, for app’lt; A. S. Cushman, B. Crandall, and G. S. Truant, for resp’t.
   McAdam, J.

The plaintiff sued to recover $3,000 damages for injury to a stock of photographic supplies contained on the second floor of the premises Mo. Ill Massau street, because of a fire which occurred therein April 10, 1889. The defendant, who is a chemist, occupied part of the floor above the plaintiff. The complaint charged that the defendant kept a furnace in his rooms, and negligently kept and maintained a fire therein at too great a heat for safety, and negligently permitted the fire to burn in the furnace unattended and uncared for, and that in consequence thereof the fire communicated with the plaintiff’s premises and destroyed his stock of merchandise. The furnace rested on a base of brick, and whether there was a sheet iron covering over the floor, the plaintiff's witnesses could not state. There was evidence that the defendant had made a fire in the furnace on the day the damage occurred, and that he had said that he intended to keep the fire there that night; that there was no danger. Upon this evidence, accompanied by proof tending to show that the fire was communicated to plaintiff’s premises by means of the furnace, and that the plaintiff suffered loss in consequence of the fire, he rested his case and the trial judge, upon motion of the defendant’s counsel, dismissed the complaint upon the ground that there was no affirmative proof of negligence, and this ruling presents the question we are called upon to review.

The appellant invokes the application of the familiar rule of res ipso loquitur, and claims that the fire could not have originated from defendant’s furnace unless it was improperly constructed or negligently used by the defendant. Breen v. N. Y. C. & H. R. R. R. Co., 109 N. Y., 297; 14 St. Rep., 835; Mullen v. St. John, 57 N.Y., 567; Seybolt v. N.Y., L. E. & W. R. R. Co., 95 id., 568; Russell M. Co. v. N. H. Stb't Co., 50 id., 121. He cites cases holding that negligence is inferred from the dropping of hot coals from elevated road engines, McNaier v. Man. R. Co., 46 Hun, 502; 12 St. Rep., 562; Lowery v. Same, 99 N.Y., 158; Shepp v. N. Y. C. & H. R. R. R. Co., 21 St. Rep., 568, and by the scattering of sparks and live coals by a railroad engine along the roadway. Field v. N. Y. C. R. R. Co., 32 N. Y., 346. The liability in the case of falling cinders, live coals or sparks from railway engines is founded on proof that locomotives properly constructed and kept in repair in respect to wire netting and ash pans would cast out no such dangers upon the roadway. The other cases cited founded on the.rule of res ipso loquitur rest on their own peculiarities, none of which resemble the facts proved here.

Thompson, in his work on ¡Negligence, p. 1227, says: “ It is believed that it is never true, except in contractual relations, that the proof of the mere fact that the accident happened to the plaintiff, without more, will amount to prima fade proof of negligence on the part of the defendant.”

There was no evidence whatever that the furnace was not properly constructed or that the defendant was negligent in its use, and unless defect of construction, failure to repair, or negligence in use are to be inferred from the mere fact that the fire communicated to the plaintiff’s premises, it is clear that non-suit was properly granted.

In Loses v. Buchanan, 51 N. Y., 476, the commission of appeals held that where one places and operates a steam boiler upon his premises, in the absence of proof of fault or negligence on his part, he is not liable for damages to his neighbor occasioned by the explosion of the boiler; and in his opinion, after having reviewed the principal authorities in this state, Judge Earl says:

“ This examination has gone far enough to show that the rule is, at least in this country, a universal one, which, so far as I can discern, has no exceptions or limitations, that no one can be liable for injuries to the person or property of another without some fault or negligence on his part."

In Wiedmer v. N. Y. El. R. R. Co., 114 N. Y., 462; 23 St. Eep., 859, the plaintiff proved that a hot coal from an engine on ■defendant’s elevated road fell into her eye; but there was no direct evidence that the locomotive "from which it came was defective in design and construction or negligently operated. The trial judge refused to dismiss the complaint and the jury rendered a verdict for the plaintiff. The judgment entered thereon was on appeal to the general term affirmed. The court of appeals reversed, stating in their opinion that there were no contractual relations between the parties, and that the falling of the coal was not sufficient for the jury to infer that the defendant negligently used a locomotive improperly designed, defectively constructed, out of repair or negligently operated; and that from the fact that the coal fell the burden was not cast upon the defendant to prove the condition of the locomotive.

In Cosulich v. Standard Oil Co., 122 N. Y., 118; 33 St Rep., 287, the facts were these: The defendant, at the time of the burning, owned and operated a petroleum refinery on Newtown Creek, and the plaintiff’s vessel was lying at the wharf adjacent thereto. The oil within defendant’s enclosure got on fire, and a quantity of it, while burning, flowed down a pipe which was connected with a lighter laden with petroleum moored at the defendant’s wharf. The pipe was used by the defendant in pumping oil from vessels into its refinery. The lighter at once exploded, and burning oil .and sticks therefrom were thrown upon the plaintiff’s vessel, setting it on fire. The conflagration was the immediate result of the explosion of defendant’s boiler. The damages were stipulated to have been $15,000. When plaintiff rested, the defendant asked for a nonsuit, which was denied. The defendant introduced no evidence. The jury found a verdict for the plaintiff. The general term affirmed, and the court of appeals reversed, holding that no contractual relations existed between the parties, and that the presumption is, until the contrary be shown, that every man has performed his duty; and that it is incumbent upon one who alleges a failure in this respect as the foundation of a right of action, to prove facts from which an inference of negligence may be properly drawn, and proof of the mere "fact that an accident has happened will not authorize such an inference. Parker, J., in his opinion says:

“As the existence of negligence is an affirmative fact to be established by him who alleges it as the foundation of his right of recovery, it was incumbent upon the plaintiff to point out by evidence the defendant’s fault; for the presumption is, until the contrary appears, that every man has performed his duty. This rule has been frequently applied in cases where a fire has spread over and upon the lands of an adjoining owner to his damage. Clark v. Foot, 8 Johns., 421; Stuart v. Hawley, 22 Barb., 619; Lansing v. Stone, 37 id., 15; Calkins v. Barger, 44 id., 424. "x" * * In actions founded on negligence, the onus of establishing it rests upon the plaintiff.”

There were no contractual relations between the parties here, ■and, applying the rules laid down in the preceding cases to the facts proved, we are required to affirm the judgment appealed from, with caste.

Freedman and G-ildersleeve, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People ex rel. Frank C. Boekell v. Charles F. MacLean et al., Com’rs.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    1. Municipal corporations—Police—Removal.
    The police commissioners, while exercising quasi-judicial functions, must weigh the testimony offered before them according to legal rules,, and give effect to explanations which tend to mitigate or explain away the offense charged.
    2. Same.
    Relator was charged with intoxication. It was shown by the testimony of two citizens and the relator that his horse slipped and threw him to the ground, rendering him unconscious, and the citizens, to revive him, gave-him whiskey, which, by the subsequent heat of the radiators in the station house, put him in a doze. Held, that if these statements were true relator-was not guilty of voluntary intoxication, and that the commissioners. should not have disregarded the testimony of the citizens, who were disinterested and uncontradicted.
    Certiorari to review the action of the board of police commissioners in removing the relator from the police force.

      Louis J. Grant, for relator; William H. Glark, counsel to the-corporation, for resp’ts.
   McAdam, J.

The relator was tried by the police board on; charges preferred to said board that the relator was so much under the influence of liquor as to be unfit for duty at 1.33 P. M.. January 1, 1891, at the expiration of his tour of patrol duty.

■ The testimony offered in support of the charges would be sufficient to sustain them, were it not for the explanation offered by the relator, which seems fully sustained by the evidence on his-part. The relator went on his post on the day in question at 8-A. M., and his tour ended at 1 p. M. He completed his tour that day in full, and arrived at the station house twenty or-twenty-five-minutes after one o’clock.

The relator was one of the mounted force, and on the day in-question he answered the first call at the station house at twelve-o’clock ; and at that time his condition was all right. After that an accident happened; the horse slipped and fell, throwing the-relator to the ground, in consequence of which his head was injured, making him unconscious for about five minutes. When-he recovered sufficiently to appreciate his surroundings, he found two citizens alongside of him, and they gave him whiskey to bring him to. He walked and rode after the accident and, after completing his tour, returned and reported at the station house. When he arrived there he was able to sit in a chair, and was compelled to sit there -for about two hours. There were radiators in the room and it was quite warm. While sitting, a sort of dizzy sensation came over him, caused, as he says, by the “ hit and the accident ” and he fell asleep. It appears that the relator had been on the force between four and five years, and an officer of the same precinct for about two years, and during the whole time he was on .the force no complaint of intoxication was ever made against him.

The citizens corroborate this story of the relator; it is uncontradicted, seems probable, and we believe it to be true. The explanation takes the sting out of the charge, and shows that the conduct complained of was not a breach of discipline, but the result of an accident.

The rule undoubtedly is that the commissioners are statutory judges, and when they find on conflicting evidence their judgment should not be set aside, except in a case where the verdict of a jury would, under like circumstances, call for the exercise of the •supervisory power of the court to 'correct error and injustice. But tliere is no such conflict in the evidence here that makes the finding of the commissioners so sacred that it should not be reviewed. The relator had taken liquor, and this, combined with the accident which befel him, dazed him, and warranted the captain in making the- charge of conduct unbecoming an officer. This left it to the commissioners to determine (subject to review by the courts) whether the relator’s excuse was satisfactory or not. The power of the court at general term to review the finding of the commissioners is conceded, while the court of appeals generally accepts their finding, when approved of by the general term upon certiorari, as conclusive, People v. French, 7 St. Rep., 253; People ex rel. Hogan v. French, 119 N. Y., 493; 30 St. Rep., 67; People ex rel. McAleer v. French, 119 N. Y., 502; 30 St. Rep., 72; People ex rel. Masterson v. French, 110 N. Y., 494; 18 St. Rep., 231, and kindred cases, and yet that court, in The People v. French, 119 N. Y., 493; 30 St. Rep., 67, reversed an order of the supreme court, affirming the action of the commissioners in removing one Hogan from the force. In that case the court discriminates between a voluntary intoxication and the taking of liquor “in a sudden emergency, from a commendable motive, and with a reasonable expectation that it will sustain the failing ability to perform duty.” In such a case, the court holds “ that there is no breach of discipline, and no conduct unbecoming an officer.” Page 498. If, as is sworn to by the relator and the two citizens, the ground was “slippy,” his horse slipped and he was thrown to the ground and ¡rendered unconscious, and the citizens to revive him gave him whiskey, which, by the subsequent heat of the radiators in the station house, put the relator in a doze, it cannot be truthfully said that the relator was guilty of voluntary intoxication, or of conduct unbecoming an officer. The commissioners should not have disregarded the evidence of the two citizens. They were disinterested and unimpeached, not even contradicted, and their story was highly probable. Lomer v. Meeker, 25 N. Y., 361; Kavanagh v. Wilson, 70 id., 179. The commissioners, while exercising quasi judicial functions, must weigh the testimony offered before them according to legal rules, and give effect to explanations which tend to mitigate or explain away the offense charged. For the failure of the commissioners to give proper effect to the explanation offered, their adjudication must be reversed and the relator restored.

Freedman and G-ildersleeve, JJ., concur.


author: Gildersleeve, J.

text:
    Robert W. Milbank, Resp’t, v. Morgan Jones, App’lt.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    Stipulations—Laches.
    By a stipulation between the attorneys a default was waived on condition that defendant should interpose only a general denial. Defendant, claiming that he had not consented thereto, which was denied, moved to-set aside the stipulation and for leave to serve an amended answer, which was denied, but he was allowed on the trial to give evidence as to his other proposed defense. Judgment was recovered in his fas or, which was reversed by the court of appeals because of the admission of such evidence. He then, more than four years after the first motion, moved to set aside-the stipulation and amend. Held, the motion was properly denied on the ground of loches.
    Appeal from an order denying motion to set aside a stipulation, and for leave to amend the answer.

      Booraem, & Hamilton, for resp’t; John M. Jones, for app’lt.
   Gildersleeve, J.

The defendant being in default, his attorney entered into a stipulation, by which the default was waived, without the payment of costs, on condition that defendant should interpose only a general denial. Afterwards, the - defendant, who-claims that such stipulation was made without his knowledge or consent, which assertion is denied by his former attorney who' made it, changed his attorneys, and moved to set aside this agreement and for leave to serve an amended answer, setting up, in addition to the general denial, the statute of limitations and an allegation that the agreement of trust mentioned in the complaint was void as against public policy. This motion was argued at special term in March, 1888, and denied: whereupon, on April 9, 1888, an order was duly entered denying said motion, from which order no appeal was taken.

The case came on for trial in November, 1888, and a verdict, was rendered for the defendant, the trial judge allowing the defendant to give affirmative testimony tending to show the illegality of the contract and trust set forth in the complaint. An appeal was taken by the plaintiff to the general term, where the judgment in favor of the defendant was affirmed. Thereupon, the plaintiff appealed to the court of appeals, where the judgment was reversed and a new trial granted, on the ground of the inadmissibility of the defendant’s testimony regarding the illegality of the contract and trust under an answer setting up merely a general denial. (See this case in 38 St. Eep., 910). On July 1,1891,. the judgment of the court of appeals was duly made a judgment of this court, and on the same clay a copy of the order was duly served on defendant’s attorney, with notice of entry. The cause was thereupon placed on the calendar for a new trial, and notice of trial was served for the October term, 1891. On September 26, 1891, the defendant made a second motion, on substantially the same state of facts as the first motion, to set aside the stipulation and for leave to serve an amended answer. This second motion was also denied, and from the order denying the same defendant appeals to the general term.

We are of the opinion that the defendant is guilty of loches. His proper course would have been to appeal from the order denying the first motion to amend the answer and set aside the stipulation. He was not justified in speculating as to what the result of going to trial on the original answer would be, and then, on finding the court of appeals against him, in renewing his motion to amend the answer, nearly four years after making the original motion.

It will not be denied that the court has power to set aside or modify such stipulations as the one in question. See Barry v. Mutual Life Lns. Co., 53 N. Y., 536; People v. The Mayor, 11 Abb. Pr., 74; Quinn v. Lloyd, 7 Robt., 542. Nor will it be disputed that the defendant has suffered injury by reason of the stipulation made by his attorney. But in view of the conflict of evidence on the question of defendant’s knowledge and approval of the act of his attorney, and in consideration of defendant’s loches, we do not think this is a case in which the court should interfere to set aside a stipulation made by the attorneys for the respective parties, by which one gave up a right in return for the waiver of a right by the other.

The order appealed from is affirmed, with ten dollars costs and disbursements.

Freedman- and McAdam, JJ., concur.


text:
    Frazier M. Dolbeer, Resp’t, v. John Stout, App’lt.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    Attachment—Counterclaim.
    On motion to set aside an attachment it was claimed that at the time of the assignment of the claim in suit to plaintiff there was an action pending between defendant and the assignors for damages growing out of the same transaction, and hence there was a counterclaim. Seld, that such claim could not have been set up in an action brought by the assignors, and hence could not be used as a counterclaim herein.
    Appeal from an order denying defendant’s motion to vacate an. attachment.

      Thomas J. Farrell, for app’lt; Fdward S. Clinch, for resp’t.
   Gildersleeve, J.

This is an appeal from an order denying defendant’s motion to vacate an attachment. The motion is made on affidavits setting forth that at the time the cause of action was assigned to the plaintiff herein another action was pending in the supreme court, in which the defendant herein was plaintiff and the assignors of the plaintiff herein were defendants, for damages growing out of the same transaction from which the cause of action herein arose; and that, therefore, there was a counterclaim existing against the plaintiff’s assignors, at the time of the issuing of the attachment herein, for an amount in excess of the claim in the case at bar, as in the supreme court action the claim was something over $19,000, while in the case at bar the amount claimed is less than $5,000.

The plaintiff, as the assignee of the claim, stands in exactly the same position as his assignors would have stood had they not assigned the claim, but been themselves the plaintiffs in this action. If a counterclaim existed against plaintiff’s assignors, at the time of .the assignment of the claim to plaintiff, the latter took the claim subject to that counterclaim. See § 502 of the Code.

Had the assignors been the plaintiffs in this action, instead of their assignee, could the defendant have set up the demand which constitutes the cause of action in the supreme court case as, a counterclaim in this action? We think not.

Section 495 of the Code especially provides, in subdivision 3, that if it appears on the face of the counterclaim, demanding an affirmative judgment, that there is another action pending between' the same parties for the same cause, the counterclaim would be demurrable. And if that fact should not appear on the face óf the counterclaim, it could, nevertheless, be made available as a defense in the reply. See Ansorge v. Kaiser, 22 Abb. N. C., 306.

It, therefore, appears that the defendant could not set up a counterclaim in this action, even if the assignors were the plaintiffs, instead of their assignee. And certainly, if the defendant has no counterclaim against the plaintiff’s assignors, he certainly has none against the plaintiff himself, the assignee of the claim.

Since the defendant could not avail himself of his demand against the plaintiff’s assignors as a counterclaim in this action, the order appealed from must be affirmed, with ten dollars costs and disbursements.

Freedman and Me Ad am, JJ., concur.


author: Freedman, J.

text:
    Julius Robertson, Pl’ff, v. The National Steamship Co., Deft.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    Contract—Breach—Damages.
    Defendant undertook to transport certain skins from Havre to London and from there to New York, by vessel. It carried them to Southampton and forwarded them from there to London by rail, The skins were received in a damaged condition but plaintiff spent some labor thereon to make them more merchantable and prevent further decay. Held, that defendant by its deviation from the' contract became an insurer' and was liable for the loss occasioned thereby, and that the proper measure of damage was the actual loss sustained together with the expense incurred by plaintiff for reducing such loss.
    Cross-Appeals from judgment entered in favor of the'plaintiff upon the decision of a judge at special term.

      Lewis Sanders, for pl’ff; John Ohetwood, for def’t
   Freedman, J.

This action was, by consent, tried at special term without a jury. The controversy between the parties arose out of a shipment of skins which the defendant undertook to transport by the Steamer Wolf from Havre to London and by the steamship Canada from London to New York. The court, upon the facts found, gave judgment in plaintiff's favor for $1,000.00, and from this both parties appealed.

The facts as found, with the single exception of the amount of the damages, are sufficiently supported by the' evidence, and the questions relating to the jurisdiction of this court, the right of the plaintiff to maintain the action, the construction of the bill of lading, the duty of the defendant under said bill of lading, the deviation and breach of duty by the defendant, and the liability of the defendant in consequence thereof, were so fully discussed by the trial judge in the learned opinion rendered by him, that no further elaboration is necessary here. I entirely agree with the views expressed and the conclusions reached upon these questions. In determining the amount of damages, however, the learned judge erred. But the error, -as will be presently shown, was in favor of the defendant and against the plaintiff. Defendant’s exception to the exclusion of evidence present no ground for reversal.

Upon the defendant’s appeal, therefore, the judgment should be affirmed.

The appeal by the plaintiff is upon the sole ground that the damages awarded are inadequate. The claim of the plaintiff is for damages by reason of the delivery to him of the goods in a damaged condition. The cause of the damage was found in defendant’s deviation from the terms of the contract in carrying the goods to Southampton and forwarding them from there by rail to London, instead of carrying them by the steamer Wolf directly to London as provided by the bill of lading. The defendant therefore became an insurer and cannot invoke the benefit of any exception made in its behalf in the contract. Maghee v. Camden & Amboy R. R. Transportation Co., 45 N. Y., 514.

In such a case the damages, as a general rule, are to be measured according to the value of the goods at the place of destination, at the time they should have been delivered pursuant to the contract, and in the condition the carrier undertook to deliver them, less the price to be paid for his services. Sturgess v. Bissell, 46 N. Y., 462; Ward v. N. Y. C. R. R. Co., 47 id., 29; Harris v. Panama R. R. Co., 36 N. Y. Superior Ct., 373; affirmed, 58 N. Y., 660; Sherman v. Hudson River R. R. Co., 64 N. Y., 254.

The defendant offered no testimony whatever as to the value of the goods or the amount of damage thereto, -while the plaintiff’s witnesses all united in testifying that, at the time the skins were received in New York, their market value, if sound, was $7.50 per dozen; that there were 4,856 damaged skins, and that the damage to them was about fifty per cent of the market value of sound skins. At that rate the total amount of damage was $1,617.50.

It appeared, however, that the plaintiff, before charging the defendant with the actual amount of the loss, undertook to lessen the damage by spending some labor upon the damaged skins to make them more merchantable and to prevent further decay, and that as the result he was able to sell them, and did sell them, at a figure which made the amount of actual loss several hundred dollars less than $1,517.50, and several hundred dollars higher than the sum of $1,000 actually awarded. Under the special circumstances of this case I think the defendant should not be charged with more than' the actual loss; while, on the other hand,"the plaintiff must be allowed the expenses incurred for reducing the loss below the amount which under ordinary circumstances the general rule would fix. The precise figures do not appear to have been given, but from the general statements that were made it sufficiently appears that the actual loss considerably exceeded the sum of $1,000 which was awarded.

Upon plaintiff’s appeal, therefore, a new trial should be ordered.

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

Gildersleeve, J., concurs.


text:
    William Meighan, App’lt, v. George K. Hollister et al., Resp’ts.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    Negligence—Owner of building.
    Plaintiff claimed to have been injured by brick or other material falling from one of the chimneys of defendants’ building, but none of his witnesses could say with certainty that the fragments came from said chimneys, or what in fact struck plaintiff. Defendants showed that the chimneys had shortly before been constructed by contractors; that they knew of no defects in them; and that after the accident they were examined, and no part was gone, and there were no loose bricks on the roof. Held, that the complaint was properly dismissed.
    Appeal from judgment entered in favor of the defendants upon the direction of the court dismissing the complaint upon the merits.

      James M. Hunt, for app’lt; Jacob Steinhardt, for resp’ts.
   Freedman, J.

The action was brought to recover damages for personal injuries alleged to have been sustained by the plaintiff in consequence of the negligence of the defendants. At the trial the theory of the plaintiff was, that while he passed along Madison avenue in front of premises owned by defendants on the afternoon of February 20, 1888, he was struck by fragments of brick or other material which composed part of one of the chimneys of defendants’ building. Neither the plaintiff nor any of his witnesses was able to say with certainty that the fragments came from one of said chimneys, or what, in fact, had struck the plaintiff. At the close of plaintiff’s case the trial judge refused to dismiss the complaint The defendants thereupon proved the proper construction of their chimneys by independent contractors a short time before the accident; that they had no knowledge or notice of any defect, and that no facts existed which put them upon inquiry ; that at the time of the accident the painter, another independent contractor, had hung his swing scaffold around the chimney claimed by the plaintiff to have been the chimney in question, but was not at work owing to the prevalence of a heavy storm, • with the wind blowing at the rate of thirty miles an hour; that on the same day chimneys of other houses in that locality fell from the storm; that, after the accident, the chimneys of the defendants were examined and no part of them was gone, and that there were no loose bricks on the roof of the building. Indeed, the explanation given by the defendants was full and circumstantial. This cast the burden upon the plaintiff to point out that, notwithstanding the explanation given, there was after all a specific act of omission or commission for which the defendants were responsible and which caused the injury. The plaintiff did not sustain the burden in this respect With the exception of recalling a witness who simply testified that she did not see any scaffold when she looked at the house, the plaintiff did not attempt to contradict the defendant’s witnesses. As the evidence thus left it uncertain what was the true cause of plaintiff’s injuries, and whether the defendants or others were responsible for that cause, the complaint was properly dismissed at the close of the whole case. Searles v. Manhattan Railway Co., 101 N. Y., 661.

As defendants’ house was a new building, and had been built under contract by a competent mason, and may be said to have been still in course of construction at the time of the accident, the doctrine of Mullen v. St. John, 57 N. Y., 567, does not apply. Mor does it make any difference under the special circumstances of this case that the defendants as owners were in possession.

There was no error committed in excluding evidence, and no complaint was made concerning the admission of evidence.

The judgment should be affirmed, with costs.

Gildersleeve, J., concurs.


text:
    William H. Scott, Ex’r and Trustee, App’lt, v. The Manhattan Railway Co. et al., Resp’ts.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    1. Raiizroad—Elevated—Damages—Charge.
    In an action against an elevated railroad the court charged that the jury should consider the question of damage to rental value with reference to the purpose for which the premises were occupied during the period in question, and give weight to the fact that it had been used for the exhibition of cut glass, and that such goods were exhibited to better advantage by artificial light. Meld, error, as it gave the jury the right to believe that they could not consider the purposes for which the premises might have been occupied, but only those for which they were actually occupied.
    2. Same.
    Such error is not cured by a consent of the opposite party that this portion of the charge may be withdrawn, where the jury is not instructed, to disregard it, and nothing is said by the court from which they may draw such inference.
    Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff for six cents damages, and from an order denying a motion for a new trial.

      Arnold & Greene, for app’lt; Davies, Short & Townsend, for resp’ts.
   McAdam, J.

The action was brought to recover damages to the rental value of the leasehold premises known as Mo. 36 Murray street, in the city of Mew York, caused by the construction and operation of the elevated railroad in front of said premises. The title to the fee of the land is in Columbia College; but on the 29th day of November, 1870, the trustees of that college exeouted an instrument by which, they leased the land to William H. Scott for the term of twenty-one years. Mr. Scott entered into possession under his lease, and built upon the land the building now standing there, which is five stories high with cellar and sub-cellar. It was finished in 1875, and is twenty-five feet wide, by about seventy-five feet deep; it has a marble front and is a fine building, with elevator, etc. It has always been used and occupied for business purposes. Mr. Scott died in the year 1883, leaving a last will and testament, which was duly approved as a will of real and personal property, and under this will the plaintiff was named as executor and trustee, and duly qualified as such.

Upon the trial of the action the court charged the jury that ‘•in deciding the question of damages to rental value they should consider it with reference to the purpose for which the premises were occupied and used during said period, and give weight to the undisputed fact that it has been used since 1881 for the exhibition and sale of cut glass goods, and that such goods were exhibited to better advantage by artificial light than by ordinary light.” _ _

_ _ The plaintiff excepted to this portion of the charge, and the defendants’ counsel consented that it be withdrawn; but there is nothing in the case indicating that the jury were instructed to disregard it; nor was anything said by the court from which they might intelligently draw that inference.

The charge was inaccurate, for it gave the jury the right to believe that they could not consider the purposes for which the premises might have been occupied, and only those for which they actually were occupied.

The plaintiff was entitled to, the use of his property for any' purpose to which it might be devoted, and for which he was able to rent it; and the fact that he may have been obliged to rent it for a purpose in which artificial light could be used to better advantage does not prevent him from recovering what he might have received if he had been able to rent the premises with the advantages of natural light.

Whether the trial judge intended to withdraw this portion of the charge, it is clear from the result that it left its impression on the mind of the jury, for they awarded the plaintiff but six cents damages, while the proof indicates that his loss was of a more substantial character.

As the value of property results wholly from its use, it follows that to deprive the owner of its most advantageous use is a deprivation of property. Indeed, all that is beneficial in property arises from its use and the fruits of that use; and whatever deprives a person of them, deprives him of all that is desirable or valuable in the title or possession, and whatever limits or interferes with the most advantageous use of the property does a substantial injury to the title and possession, which is not compensated by nominal damages.

For these reasons, and without considering the other exceptions in the case, it follows that the judgment and order appealed from must be reversed, and a new trial ordered, with costs to abide the event.

Feeedman, J., concurs.


text:
    Patrick W. Kerns, Resp’t, v. John B. Hagenbuchle, App’lt.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    Seduction—Damages.
    In an action by a father for h;s daughter’s seduction, exemplary damages are recoverable, although the actual pecuniary damages are small. A. verdict for $3,500 in such case held not excessive.
    Appeal from a judgment in favor of the plaintiff on verdict of the jury, and from an order denying a motion for a new trial.

      N. T. M. Mellis, for app’lt; C. J. Duvall, Jr., and John B. Beed, for resp’t.
   McAdam, J.

The action is by the plaintiff as the father and master of Sabina F. Kerns to recover damages from the defendant for seducing the plaintiff’s daughter and depriving him of her assistance, society, comfort and service.

The jury found all the facts in favor of the plaintiff and returned a verdict in his favor, assessing the damages at $3,500.

For the injuries received through his daughter’s dishonor the plaintiff was entitled to recover exemplary damages. This is a universal rule. Lipe v. Eisenlerd, 32 N. Y., 229; Damon v. Moore, 5 Lans., 454; Knight v. Wilcox, 18 Barb., 212; Bartley v. Richtmyer, 4 N., Y., 38, 44; Ingersoll v. Jones, 5 Barb., 661; Ball v. Bruce, 21 Ill., 161.

In Lipe v. Eisenlerd, 32 N. Y., 236, Denio, Ch. J., said: “ The object of the action, in theory, is to recover compensation for the loss of the services of the person seduced. This is so far adhered to that there must be a loss of that kind or the action will fail ; but when that point is established, the rule of damages is a departure from the system upon which the action is allowed. The loss of service is often merely nominal, though the damages which are recovered are very large. ”

The action is based on mere loss of service, though this “ is eminently a legal fiction,” says Sedgwick on Damages, vol. 2 (7th ed.), p. 512, “for the damages are generally large, and are left much to the discretion of the jury.”

In Lampman v. Hammond, 3 T. & C., 294, the court said: “ The father may maintain the action for the seduction of his minor daughter, upon the presumption, without proof, of a loss of service, because he is entitled to command such service.” .

In Ingerson v. Miller, 47 Barb., at p. 50, the court held that “ Proof of the slightest loss of service or the most trivial injury, if the direct result of the unlawful act, is sufficient to uphold the action.”

Lord Eldon (in Bedford v. McKowl, 3 Esp., 119), said:'“In point of form the action only purports to give a recompense for the loss of service, but we cannot shut our eyes to the fact that this is an action brought by the parent for an injury to her child. In such a case I am of opinion that the jury may take into consideration all that she can feel from the nature of the loss. They may look on her as losing the comfort as well as the service of her daughter, in whose virtue she can feel no consolation; and as the parent of other children whose morals may be corrupted by her example.”

It has been laid down that actions of this sort are brought for example’s sake, and although the plaintiff’s loss may be pecuniarily small, yet the jury do right in giving liberal damages. Wood’s Mayne on Damages, 659.

Decided by these rules the verdict was not excessive, the jury were warranted in finding as they did, and the judgment and order appealed from must be affirmed, with costs.

Freedman and Glldersleeve, JJ., concur.


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    Beattie Burt, Adm’rx, Pl’ff, v. Arnold Lustig et al., Def’ts.

      (New York Superior Court,

      General Term,

      Filed January 11, 1892.)

    Undertaking—Liability oe sureties on appeal.
    After affirmance at general term, the judgments and all sums of money to he had thereon were assigned to plaintiff's intestate. Defendants were sureties on appeal to the court of appeals where the judgment was affirmed. Held, that by the assignment plaintiff’s intestate became the owner of the judgment and all securities for its payment, and for all practicable purposes the plaintiff in the action, though not so appearing of record, and that the right of action on the undertaking passed to him.
    •Exceptions ordered heard in first instance at general term.
    On January 19, 1885, Frederick A. Baldwin and two others recovered a judgment against Ira E. Doying and Thomas H. Beekman, impleaded with Willet Bronson, for $1,978,85.
    On June 5, 1885, the judgment passed by assignment to Wm. A. Davis.
    The judgment was affirmed upon appeal to the general term, and judgment of affirmance entered March 4, 1886, for $96.94 costs.
    On June 6, 1887, the two judgments were assigned by Davis to Alvin Burt. The assignment transfers the judgments and all sums of money that may be had by means thereof, or any proceedings to be had thereupon.
    On October 12, 1889, the judgments were, upon further appeal, affirmed by the court of appeals, with $122.75 costs.
    On January 27, 1890, Alvin Burt, the assignee of the judgments, died, and on March 21, 1890, letters of administration were issued to his widow, the plaintiff herein.
    The- defendants executed1 the undertaking on the appeal to the court of appeals, and undertook that in case of affirmance they would pay the judgments, with all costs and damages upon the appeal.
    The action was upon the undertaking to recover the amount of the judgments appealed from, with the costs awarded. At the trial, the presiding judge directed the jury to find a verdict in favor of the plaintiff for $2,926.45, the amount claimed, with interest, and ordered that the exceptions be heard in the first instance at general term.
    Application is now made for judgment.

      Clinton B. Gibbs, for pl’ff; John G Shaw, fordef’ts.
   McAdam, J.

Three results followed the assignment to Alvin Burt First. He became the owner of the judgment, and of all securities for its payment, the latter as incidents following the principal. Thomas v. Hubbell, 35 N. Y., 120; Bowdoin v. Colman, 6 Duer, 182; Jackson v. Losee, 4 Sandf. Ch., 381; Morange v. Mudge, 6 Abb., 243; Campbell v. Birch, 60 N. Y., 214. .Second. He became entitled to continue the action for his own benefit in the names of the original plaintiffs. Code, § 756; Bolen v. Crosby, 49 N. Y., 183. Third. He became liable for the costs, as the party for whose benefit the action was thereafter prosecuted. Code, § 3247. In other words, for all practical purposes the assignee became the plaintiff, although not so appearing on the record. The defendants, by executing the undertaking to the . court of appeals, stayed its collection by the owner, Mr. Burt This was an injury to him alone, and not to the nominal plaintiffs of record. Snodgrass v. Krenkle,, 49 How. Pn, 122. The sureties on the undertaking were bound to pay only the lawful owner of the judgment, irrespective of form or title. Wehle v. Spellman, 75 N. Y., 585.

The right of action on the undertaking passed to Alvin Burt as assignee, and it became vested in his administratrix after his death. The title of the administratrix was sufficiently proved. The general assignment made by T. Brooks & Company’s successors, offered in evidence -by the defendants, was not pleaded by way of defense, nor did the defendants claim that the assignee named therein made any claim to the moneys demanded or was a necessary party to the action. The judgment was recovered by the plaintiffs several months after the general assignment was made, and its admission at the trial .proved nothing germane to the issues to be there determined. The verdict was properly directed, and the exceptions taken are without merit. It follows that the exceptions must be overruled, and the plaintiff permitted to enter judgment on the verdict, with costs.

Freedman and Gtldersleeve, JJ., concur.


author: O’Brien, J.

text:
    In the Matter of the Petition of The Congregational Church & Society of Cutchogue.

      (Court of Appeals,

      Filed January 20, 1892.)

    Executors and administrators—Payment of legacy,— Proof of corporate EXISTENCE OF LEGATEE.
    In a proceeding to compel payment of a legacy, the administrator’s ■answer denied the incorporation of petitioner and on the hearing before the surrogate claimed that the form of incorporation was defective on the ground that the statute requires the certificate to he made immediately after the meeting of the members of the congregation for the purpose of incorporating, whereas on its face it bore date a month later. Held, that such defect would not render it void and even if a case of forfeiture appeared, it could not be taken advantage of in such a proceeding.
    Appeal from judgment of the supreme court, general term, second department, confirming decree of surrogate directing payment by administrator to the petitioners of a legacy and property devised to them.

      Jesse L. Case, for app’lt; Timothy M. Griffing, for resp’t.

       Affirming 37 St. Rep., 179.

   O’Brien, J.

The Independent Congregational Church and Society of Cutchogue by one of its trustees petitioned the surrogate to compel the payment of a legacy to which it claimed to be entitled. One Henry Landon died in the year 1864, leaving a will dated in 1857, and a codicil thereto dated December 10, 1861. This codicil after revoking a gift to another church which was. made by the original will concludes with this provision: “ In case there shall be a new religious society in Cutchogue organized as an independent Congregational church or society at the time of my decease, or within one year thereafter, I give, devise and bequeath to the trustees thereof and their successors, by whatever name they may be incorporated, the said tract of land at Wading river, and also the said shares of capital stock of the Tradesmen's and Manhattan Banks, standing in my name after the decease of said Deborah Corey. The income thereof to be applied to the support of the gospel in the said last mentioned society.” The petitioner produced a certificate in due form under the act of April 5, 1813, providing for the incorporation of religious societies, bearing date October 29, 1862, and recorded in the county clerk’s office of Suffolk county, April 19, 1864. It was admitted that public, religious services were maintained by the society thus incorporated down to the year 1877. Since that time services were held only occasionally and sometimes no services at all were kept up ' for a period of four or five years, and it is claimed no services have-been held since 1887. Mrs. Corey upon whose life the legacy to-the corporation depended, died in the year 1886. The surrogate made a decree directing that Greorge W. Dayton, administrator with the will annexed, transfer to the petitioner the shares of bank stock described in the codicil with their accumulations. He made no findings of fact or law and it does not appear from the record that he was asked to make any. There is no question made as to the validity of the will, the codicil or the bequest. The only point made against the relief asked in the petition is that the petitioner has not proved its corporate existence in the proceedings before the surrogate. Our attention is called to what are -claimed to be defects in the form of the certificate of incorporation. This criticism is to the effect that the statute requires the certificate to be made immediately after the meeting of the members of the congregation for the purpose of incorporating, whereas on its face it bears a date a month later. It is also-claimed that the corporation has ceased to exist by reason of nonuser or failure to keep up religious services or a church organization. We think that the alleged defect in the certificate, if it can be called a defect at all, did not render it void. Even if a cause of forfeiture appears, that cannot be taken advantage of or enforced in a proceeding like this. That question can be raised only by the sovereign power to which the, corporation owes its life in some proceeding for that purpose by or in behalf of the sovereignty itself.

The judgment should be affirmed, with costs.

All concur.


text:
    John Reilly et al., Ex’rs, Resp’ts, v. Rufus Dodge et al., Ex’rs, App’lts.

      (Court of Appeals,

      Filed February 9, 1892.)

    1. Sheriffs—Surety on bond of deputy—Notice of withdrawal.
    A surety upon the bond of a deputy sheriff on November 28, 1877, delivered to the under sheriff at the office of the sheriff a notice to the effect that he declined to be surety for said deputy after that date. On February 5, 1878, a new bond was delivered to the sheriff bearing date December 1, 1877, and executed by one surety January 30, 1878, and by the other on the day of delivery. The deputy had on the 28th December, 1877, made a levy upon a wife’s property upon a judgment against her "husband, and sold thereunder on the 7th of January, 1878. Meld, that although the notice to he served upon the sheriff was not an official one and so could be served by leaving it at the office, yet as it was shown to have reached him, it must be regarded as having been served on him when it came to his knowledge.
    2. Same.

      But a notice by a surety, such as was served in this case, does not operate to discharge the sureties until a reasonable time has elapsed sufficient to enable the sheriff to give notice to the deputy and the other sureties a.id to permit a new bond to be given. In this case the sureties continued bound to him when the levy which fixed his liability was made.
    ' (Gray, J., dissents.)
    Appeal from judgment of the New York superior court, general term, reversing judgment for defendants entered upon report «of referee.

      W W. Westervelt, for app’lts; Henry Thompson, for resp’ts.

       Affirming 38 St. Rep., 352.

   O’Brien, J.

On the 22d day of June, 1877, the defendant Dodge having previous to that date been appointed by Bernard Reilly, then sheriff of the city and county of New York, one of his deputies, procured to be executed and delivered to the sheriff a bond with one Christian Sauer and John McDermott as sureties in the penal sum of $10,000, conditioned for the faithful performance of his duty by said Dodge as deputy sheriff. The sureties in this bond became bound, among other things, to indemnify and save harmless the said Reilly as sheriff, his heirs, executors and administrators, from and against all demands, damages, costs, liabilities and charges whatsoever thereafter to be demanded or demandable of or against the said sheriff, his heirs, executors or .administrators, by reason of any misconduct or neglect of any kind whatsoever of the said Dodge in executing wrongfully, or neglecting- to execute the office of deputy sheriff, and also for or by reason of any manner of nonfeasance or misfeasance or malconduct of the said deputy and to indemnify and. save harmless the said sheriff and his legal representatives of and from all costs, charges and expenses which might accrue or be incurred in or about the execution of any process which might be delivered to him. It was found by the referee that on the 28th of December,. 1877, an execution was delivered to said Dodge as deputy by the sheriff which was issued upon a judgment in the supreme court and which commanded the sheriff to collect the amount of the judgment from the defendant named therein.

The deputy on the same day made a levy on certain goods as the property of the defendant named in the process, but which were claimed by his wife, and on the 7th day of January, 1878, sold them under the execution. That the sheriff was subsequently sued by the wife claiming to owm the property thus sold for a wrongful conversion of the same. That there was a recovery against him, and that he was compelled to pay by reason of the act of his deputy the sum of $985, To recover this sum and the interest thereon the sheriff brought this action on the bond above described against the deputy and his sureties. The principal defense of the sureties was that they became discharged from the-obligations of the bond on the 29th of November, 1877, in consequence of a notice in writing signed by McDermott, one of the sureties, and delivered to the under sheriff at the office of the sheriff on that day, to the effect that he declined to be surety for Dodge as deputy from and after that date. The case turns almost entirely upon the effect that should be given to this notice. During the progress of the litigation the sheriff died, and his personal representatives were substituted in his place as plaintiffs. After the commencement of the action one of the sureties also died, and his personal representatives were substituted as defendants. The plaintiffs admit that the sureties on the bond in suit were discharged on the 5th óf February, 1878, because on that day a new bond was delivered to the sheriff bearing date December 1, 1877, and executed by one surety January 30, 1878, and by the other on the day of delivery. This bond was accepted by the sheriff in place of the one in suit for the purpose of enabling the deputy to continue in his office as well as to protect himself, but the levy and sale of the property which subjected the sheriff to the damages sought to be recovered in this action took place, as will be seen by reference to the dates, before the second bond was accepted. The defendants claim that the notice operated to discharge the sureties when it was served, and this view was adopted, by the referee and he dismissed the complaint. The general term reversed the judgment upon the ground, as appears from the opinion, that it was not served upon the sheriff. That the-statute providing that every notice or paper which shall be required to be served on any sheriff may be served by leaving the same at the office designated by him, etc., had no application to-this paper. 3 R. S., chap. 3, tit. 2, art. 2, § 56.

The notice served by the surety in the manner stated was not an official paper which was required by any law to be served on the sheriff as such. It related to a contract between himself and the obligors in the bond as individuals and could have no operation by leaving it at the office or with the under sheriff until it came to the knowledge of the sheriff himself or some one who had authority to receive and act upon it. There is evidence in the record, however, upon which the referee could have found that the paper came to the knowledge of the sheriff very soon after it was delivered to the under sheriff, and if the case turned upon the fact whether the sheriff had actual knowledge of the contents of the notice before the levy and sale by the deputy, it would be difficult to disturb the finding of the referee. The plaintiffs’ counsel now admits that there was evidence given from which the referee could properly infer and find as he did that the notice was served upon the sheriff on the 28th of November, 1877, as it must be regarded as served upon him when it came to his knowledge. The judgment of reversal cannot therefore be sustained upon the grounds stated in the opinion of the general term. But the referee held that the notice served on the 28th of November became operative then to discharge the sureties. There are certain contracts of indemnity which may be terminated by a surety without the consent of the creditor or the principal. It was said by Finch, J., in Emery v. Baltz, 94 N. Y., 408, that “a surety bound for the fidelity and honesty of his principal, and so for an indefinite and contingent liability, and not for a sum fixed and certain to become due, may revoke and end his future liability in either of two cases, viz: First, where the guaranteed contract has no definite time to run, and Second, where the principal has so violated the contract and is so in default, that the creditor may safely and lawfully terminate it for that reason.” The learned judge did not say nor does the case hold that the liability may be terminated by more notice given by the surety at any time, and is not authority to sustain the proposition upon which the sureties in this case rely, namely, that their liability was terminated on the 28th of November, the day the notice was received. Whether a surety upon a penal bond conditioned upon the faithful performance of his duty by a public officer like a deputy sheriff can terminate his liability without the consent of the sheriff or the principal in the bond, or can become discharged without any new consideration, is a point that is not necessary to decide in this case.

It is entirely safe to hold, however, that a notice by the surety, such as was served in this case, does not operate to discharge the sureties until a reasonable time has elapsed sufficient to enable the sheriff to give notice to the deputy and the other sureties, and to permit a new bond to be given. The official duties of the sheriff are performed to a very great extent through deputies appointed by him, and, for his own protection, they are required, upon their appointment, to give bonds to him for the faithful performance of their duties. It would greatly embarrass the sheriff in the performance of the important and responsible duties of his office if the sureties upon the bonds of his deputies could withdraw from them and terminate their liability at will. The business in the hands of the deputies might be in such a condition when the no* tice oí the sureties is served upon him that he might he unable to .arrest their action or terminate their power to subject him to liability by their acts done in his name. Unless the sureties can be held by him to the liability which they assumed for at least a reasonable time after the notice, he may be subjected to liability of the .gravest kind for the acts of others without any means of protection. That this responsibility cannot be thrown upon the sheriff by the sureties at will and upon notice merely, would seem to be clear upon principle, and is sustained by abundant authority. It is sufficient to cite the cases that sustain this proposition or some principle leading up to it without comment. Bostwick v. Van Voorhis, 91 N. Y., 353; Barnard v. Darling, 11 Wend., 29; Andrus v. Bealls, 9 Cow., 693; Hart v. Brady, 1 Sandf., 626; Hunt v. Roberts, 45 N. Y., 696; Burgess v. Eve, L. R., 13 Eq., 450; Hough v. Warr, 1 Car. & P., 151; Hassell v. Long, 2 Moule & Sel., 363, 370; Calvert v. Gordon, 3 Man. & Ryl., 124; De Colyar on Guaranties (2d ed), p. 346; Fell on Guar. & Sur. (2d ed.), 530.

What is a reasonable time in such cases is generally, though not always, a question of law. The facts from which the conclusion is to be drawn may be in dispute, or the inferences from conceded facts may not be certain, or the motives of a party may enter into the question. In such cases the court is warranted in submitting ■the case to the jury. Sullivan v. N. Y. & R. C. Co., 119 N. Y., 348; 29 St. Rep., 747.

Had the defendants in this case elected to take a new trial it is barely possible that some fact or circumstance might appear that would be sufficient to carry the case to the jury, but they have elected to stand upon the record as it is and we cannot say ■as matter of law that the time that elapsed from the service of the notice to the time when the deputy made the wrongful levy, ■that subjected the sheriff to liability, was unreasonable, and therefore we must hold that the sureties continued bound to him when the levy which fixed his liability was made. The sheriff did not change the situation by permitting the deputy to execute the process after the receipt óf the notice. The under sheriff who acted for the sheriff in that respect notified the deputy that he could have no more new business till a new bond was given. The deputy had prior to the receipt of the execution in question received other executions issued on other judgments against the .same debtor, and the proof is that the last examination in such ■cases was not, according to the practice and course of business at the office, between the sheriff and the deputies, regarded as new business. It does not appear that this practice was known to the sureties, but even if it was not, and though the execution upon which the levy in question was made was, as to the sureties, new business, still, we think, that the sheriff, acting in the ordinary ■course of business and without any bad faith with respect to the ■sureties, could entrust such business to the deputy, for a reasonable time after the notice, without discharging his bond or any of the obligors thereon.

Our conclusion is that, while the grounds upon which the judg- ■ ment on the report of the referee, dismissing the complaint, was reversed, are not tenable, yet the result was right, for the reasons stated, and that the order of the general term should be affirmed, and judgment absolute ordered for the plaintiff, with costs.

All concur, except Gray, J., dissenting, and Maynard, J., taking no part.


author: Andrews, J.

text:
    The People, Resp’ts, v. William F. Sinell, App’lt.

      (Court of Appeals,

      Filed February 9, 1892.)

    Excise—Bar.
    The acquittal of the defendant of a charge of selling after a certain date is no bar to an indictment for a sale made prior to the transaction to» which the record of acquittal related.
    Appeal from judgment of the supreme court, general term., second department, affirming conviction of defendant for violation of the excise law.

      ArthurS. Tompkins, for app’lt; Wm. McCauley, Jr., dist-.att’y,. for resp’ts.

       Affirming 34 St. Rep., 898.

   Andrews, J.

The indictment laid the selling of the liquor on the 1st of February, 1889, with a continuando charging sales on divers other days between that date and the 1st of May, 1889. The proof related to sales within the period mentioned. The plea of former acquittal was sought to be sustained by a record of acquittal of the defendant on an information before a justice of the peace, charging the defendant with illegally selling liquor after the 1st day of May, 1889, which information was lodged the same day as that on which the indictment was found. The record of acquittal shows that the evidence on the trial before the justice was confined to alleged sales made after May 1, 1889. The offense for which the defendant was indicted and tried was not. the same offense of which the defendant was acquitted before the justice. If the indictment had been sought to be maintained by-proof of sales made after the 1st day of May, and before the information was filed, a different question would be presented. But as this was not attempted, and as each sale constitutes a separate offense, the acquittal of the defendant of a charge of selling after a certain date is no bar to an indictment for a sale made prior to-the transaction to which the record of acquittal related. This constituted a different and independent transaction. See People v. Adams, 17 Wend., 475.

Ho other point being raised the judgment should be affirmed.

All concur.


text:
    William F. Erving, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Court of Appeals,

      Filed February 9, 1892.)

    1. Hew York city—Contract—Forfeiture of deposit.
    A forfeiture of a deposit made by a bidder for a contract cannot be enforced under § 65 of the consolidation act until he has had written notice that the contract has been awarded to him.
    3. 'Same.
    The mere fact that a party who has made proposals for public work in the city of New York is the lowest bidder and knows that fact does not necessarily entitle him to the contract and does not constitute an awaid to him of such contract, within the meaning of the law regulating the letting of work upon competitive bids.
    Appeal from judgment of the Hew-York superior court, general term, affirming judgment in favor of plaintiff granted on the defendant’s answer.

      D. J. Dean, for app’lt; Richard J. Morrison, for resp’t.

       Affirming 43 St. Rep., 2.

   O’Brien, J.

In this case certain parts of the defendant’s answer were stricken out as sham and the rest of it overruled as frivolous and judgment ordered for the plaintiff for the sum demanded in the complaint The defendant appealed from the ■order which thus disposed of its answer and also from the judgment.

The plaiptiff claimed that the defendant was indebted to him in the sum of $1,000 and the interest thereon, that being the amount deposited by him in the form of a certified check with the proper ■officer under the laws and ordinances governing the letting of ■'contracts in the city of Hew York for public work, and the defendant claims that the same has been, under the law, forfeited to the city, and that it is entitled to retain it. The complaint alleges that notice was published inviting bids and proposals for regulating' a street to be made to the department of public works ■and requiring that the bids or proposals for doing the work be accompanied by a bond of $20,000 with two sufficient sureties, •conditioned for the faithful performance of the work embraced in the bid, 'and also a certified check upon a state or national bank, doing business in said city, for five per cent of the amount ■of the bond which, in this case, called for a check of one thousand dollars.- '

On the 14th of July, 1886, the plaintiff, in conformity with the notice, presented to the department his bid with the bond and the check, which was made payable to the comptroller. The complaint then avers that other proposals were in like manner presented by others, for the same work, with bonds and certified checks as required by law, but the plaintiff was found to be the lowest bidder. That thereupon the commissioner transmitted his bid with the bond and check to the comptroller for his approval, if the bond was found sufficient, but the comptroller, although ■the bond was good and the sureties sufficient, arbitrarily, unjustly and illegally refused to approve and notify the commissioner thereof, but did improperly and unjustly notify him that the ■sureties had failed to qualify, which was in fact untrue. That the ■commissioner did not make an award of said contract to the plaintiff and did not notify him of any such award, but subsequently re-advertised and awarded the contract to another. That the comptroller retained the check till about August 23, 1890, when, upon demand being made by the plaintiff for its return to him, it was paid into the sinking fund of the city. The complaint contains numerous other statements, not of fact, but of the law relating to the transaction and the legal effect of certain acts and proceedings of the parties. These allegations were wholly unnecessary and the denial of them by the defendant presented no issue or defense. The vital allegation of the complaint is that no contract was .awarded to the plaintiff. If the contract had been awarded to the plaintiff and he had executed it and furnished the security, then all agree that the check should have been returned to him. So, also, if the contract was not awarded to him, but to some one else, he was entitled to have the check restored to him. The cir•cumstances under which the check or its proceeds becomes forfeited to the city are thus stated in the consolidation act, §§ •64, 65: “ If the lowest bidder shall neglect or refuse to accept the contract within five days after written notice that the'same has been awarded to his bid or proposal, or if he accepts, but does not execute the contract and give the proper security, it shall be re-advertised and relet * * * within three days after the decision as to who is the lowest bidder, the comptroller shall return all the deposits made to the persons making the same, except the ■deposit made by the lowest bidder for any contract, and if the said lowest bidder shall refuse or neglect within five days after due notice that the contract has been awarded to execute the same, the amount of deposit made by him shall be forfeited to and retained by the said city as liquidated damages for such neglect or refusal, and shall be paid into the sinking fund of the said city; but if the said lowest bidder shall execute the contract within the time aforesaid, the amount of his deposit shall be returned to him.” The object of the bond to be furnished by the bidder is to secure the faithful performance of the contract. The purpose of the check is to indemnify the city against the expense of reletting the contract, and against the damages it might sustain by being compelled, through the default of a bidder to execute his contract, to relet the work at an increased price. The defendant’s answer contains some denials of legal conclusions stated in the complaint, but it was intended to raise, and does raise, but a single question, ;and that is that the plaintiff was in fact the lowest bidder, and that he was apprised of - that fact, or that it came to his knowledge in some way, and. from • the fact that the plaintiff was the lowest bidder, and that he, as well as the commissioner of public works, knew it, the counsel for the defendant asks the court to . draw the legal conclusion that the contract was necessarily awarded in law to the plaintiff. He contends that no formal act on the part of the commissioner was necessary to constitute an award of the contract, but that when it was ascertained that the plaintiff was the lowest bidder- and had knowledge of that fact, the contract was awarded to him within the meaning of the-law. This is the only point presented -by the learned counsel for the defendant in support, of this appeal, and unless -he is right in this respect there is no merit in his case, and the answer was properly treated by the court as sham and frivolous. The person who was at the time that the plaintiff’s bid was made and ever since the chief clerk of the department of public works, having charge of the records thereof, swears in his affidavit used upon the motion to strike out the answer that he knows, from an inspection of the records, that no contract for the performance of the work was ever awarded to the plaintiff.

The mere fact that a party who has made proposals for public work in the city of Hew York is the lowest bidder and knows that fact does not necessarily entitle him to the contract and does not constitute an award to him of such contract, within the meaning of the law regulating the letting of. work upon competitive bids. The officer charged with the duty of awarding the contract may and in some cases would very properly determine that the interests of the city would be best subserved by rejecting .proposals to enter into a contract with a party who, though he might be the lowest bidder, yet did not possess such advantages and facilities for the performance of the contract as to render his proposal on the whole for the interests of the city. The commissioner may reject all the bids and readvertise the work if in his judgment and discretion such course is for the best interest of the municipality. The awarding of the contract on the part of the officer to one of several bidders requires the exercise on his part of judgment and discretion and the award itself should be manifested by some formal official act on his part and ordinarily reduced to writing and made a part of the records in his department. In no other way can the rights of the parties be preserved, at least prior to the actual execution of the contract. The mere arithmetical operation of ascertaining which bid is the lowest does not constitute an award. The duty of the commissioner to examine the proposals and award the contract is judicial in its nature and character, East River Gas Light Co. v. Donnelly, 93 N. Y., 557; People v. Gleason, 121 id., 631; 31 St. Rep., 903, and the award is the result of a judicial act. The statute contemplates and requires three things on the part of the city or the proper officer after the proposals, bond and check have been presented. (1) That the contract shall be readvertised and relet whenever the lowest bidder shall neglect or refuse to accept the contract within five days after written notice that the same has been awarded to his bid or proposal, or when he accepts but does not execute the contract and give the proper security. (2) That the comptroller shall return all the checks to the persons depositing the same, except that of the lowest bidder, within three days after the decision as to who is such lowest bidder. (3) If the lowest bidder shall, within five days after due notice that the contract has been awarded to him, neglect or refuse to execute the same the chéck deposited or its proceeds shall be forfeited to the city as liquidated damages and paid into the sinking fund, but if he execute the contract within that time, the deposit shall be returned to him. When the city seeks to retain the proceeds of such deposits as forfeited to it under the statute it ought to be prepared to show all the facts necessary to sustain its claim. An answer to a suit by the owner of the check confined to denials of legal conclusions and which evades the real issue is not entitled to very favorable consideration. The answer in this case does not allege that any contract was ever awarded to the plaintiff. It only alleges that he was in fact the lowest bidder, and that he knew he was-. Much less does it allege that the plaintiff neglected or refused to execute the contract, within five days after duo notice that it had been awarded to him, and that was the essential fact upon which the right of the city to retain the deposit depended. The answer does not allege that any notice whatever was given to the plaintiff by any officer of the city as to what if any determination was made upon his proposals. It alleges that he was apprised of the fact that he was the lowest bidder, but that is an evasive term which does not necessarily imply any official information or communication, by the officer whose duty it was to give the notice to the plaintiff. Section 65 speaks of due notice to the bidder that the contract had been awarded to him as a prere-quisite to the forfeiture of the deposit. These words refer to the same kind of notice mentioned in the preceding section when the -contract is to be relet, that -is, written notice. Indeed it may be stated as a general rule that when a statute requires notice to be given to a party as the basis of a forfeiture of some right or interest, it means a notice in writing in the absence of some provision in the statute prescribing a method of giving the notice in some other way.

The answer in this case was served only after seven different extensions of the time to answer had been given by the plaintiff to the defendant and after judgment by default had been entered and opened on application to the court. When interposed, it was held by the special term to be bad in form and substance. We think this conclusion was right, and that the judgment and order appealed from should be affirmed, with costs.

All concur, except Gray, J., not voting.


author: Gray, J.

text:
    Daniel A. Higgins, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (Court of Appeals,

      Filed February 9, 1892.)

    Municipal Corporation—Unlawful removal of employee—Veterans —Wages.
    Plaintiff, who was employed by the city as a laborer, was discharged but afterwards restored to his position on the ground that his discharge was unlawful under chap.. 464, Laws 1887. Held, that he was not entitled to recover his wages for the time he remained necessarily unemployed.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff.

      D. J. Dean, for app’lt; John Jeroloman, for resp’t.

       Reversing 38 St. Rep., 400.

   Gray, J.

The plaintiff has recovered judgment against the city of Mew York for wages alleged to be due him between certain dates. It appears that he had been appointed by the mayor of the city, in 1888, as laborer at the dog pound, at a fixed compensation of two dollars a day. In March, 1889, the mayor terminated the employment and appointed another person in the plaintiff’s place. Thereupon, he instituted legal proceedings to-compel his reinstatement by the mayor, on the ground that he was an honorably discharged union soldier of the late war and entitled as such to a preference for appointment and employment in the office from which he had been removed. Succeeding in the proceeding, he was re-employed in February, 1890, and then commenced this action to recover his wages during the period he was unemployed. During the time he was out of his position the other appointee of the mayor performed all the duties and was paid therefor by the city.

We fail to see any ground for an action against the city, and the appeal should prevail. The theory upon which the plaintiff’s recovery has been upheld below, is, substantially, that the employment of the plaintiff was in the nature of a contract, by virtue of which the city became bound for his stipulated compensation, if he was unlawfully discharged, during the time he was necessarily unemployed. Such, a contract was supposed to result in consequence of the provisions of the act of the legislature, contained in chapter 464 of the Laws of 1887, passed to secure to honorably discharged Union soldiers and sailors a preference for appointment and employment in the public departments and works of the state and of its cities, towns and villages. I am quite unable to perceive how such a result follows as any consequence of the operation óf that law. The first section of the act provides for the preference upon the public works and in noncompetitive examinations under the civil service laws, where they apply, and the second section prescribes as follows, viz. : “ All officials, or other persons having power of appointment to or employment in the public service, as set forth in the first section, are charged with a faithful compliance with its terms, both in letter and spirit, and a failure therein shall be a misdemeanor.” \ The effect of this legislation was to impose a personal duty upon the public officials to carry out the provisions of the law, and to subject them to penal consequences if those provisions were disregarded or violated. The appointee acquiring office or employment under this law, of course, enters into certain relations with the municipality and gains the legal right to be paid by it for the services he renders, but it is not easy to understand how the resultant relations of the employee can be deemed to rest upon, or to be regulated by any contract by the city. It is not very important, perhaps, to discuss that feature of the case at any length. The question is, upon what legal principle can he hold the city, in the case of his removal, liable to make any compensation to him for the time he was not in its actual service ? There is no intention deducible from the act that the municipality is to be made-liable for any violation of its provisions. The very existence of the provision in the law for the case of a failure by an official to faithfully comply with its terms would seem to effectually negative that idea. To uphold the right to recover from the municipality, for a time when the plaintiff was not serving it, and when another was rendering the particular services, would certainly amount to visiting upon the city the consequences of the violation by its officer of a law which was meant to regulate and control Ms conduct in making appointments, as it would likewise be in violation of the usual legal rule of liability in such cases.

1 think that this case is governed by the decision of this court in Terhune v. The Mayor, 88 N. Y., 247. The fact that there the plaintiff held a public salaried office, while here the plaintiff was employed rather in the capacity of a laborer, at a compensation, fixed at a daily rate, is of no very evident effect upon the legal question of the city’s liability. It was held in the Terhune case that the plaintiff could not recover against the city for his salary during the period when, having been illegally removed, his office was filled and his salary was paid to another appointee. The principle of the decision was that the payment to a de facto officer is a defense to an action brought by the de jure officer to recover the same salary. How was it here ? The plaintiff claimed the right to a particular position in the public service, to which he had been duly appointed and from which he claimed to have been unlawfully removed and which was filled by another. He succeeded in establishing his claim and secured a reinstatement in his former employment. Does the reason for the rule stated in the Terhune case not exist quite as strongly for its enforcement in the present case? In my judgment it does. With respect to any effect which this act of 1887 has upon the question, I think it may be said, generally, that the only obligation under which the city comes to an appointee under its provisions is to pay him his compensation for the services which he renders while in office and employed. Its only relations are to the appointee as such and it is not in the least degree legally concerned with him, or with his grievance, if he has lost his office or employment by the wrongful or illegal act of the person possessing the power of appointment. The municipality must pay for the services rendered to it on principles of liability quite unconnected with this act. Where no services are rendered, it is not conceivable that an obligation is imposed by law upon the city with respect to compensation.

As the result of these views the order of the general term and the judgment entered upon the verdict for plaintiff by its direction should be reversed and a judgment entered dismissing the complaint, with costs.

All concur, except Mayhard, J., taking no part.


text:
    The People, Resp’ts, v. Jeremiah Cotto, App’lt.

      (Court of Appeals,

      Filed February 9, 1892.)

    Homicide—Indictment.
    When a party jointly indicted with another for an offense, charged to have been the result of their joint act, is tried separately, either upon his own election or otherwise, the indictment is well supported by proof sufficient to warrant a conviction if the party on trial had been indicted for the offense alone.

      Appeal from judgment of the Kings county sessions, convicting defendant of the crime of murder in the first degree.

      Charles M Le Barbier, for app’lt; James W- Bidgway, for resp’ts.
   O’Brien, J.

On the morning of the 24th of July, 1891, the-dead body of Luigi Francolosa was discovered in the highway in the town of Mew Utrecht, Kings county, by a farm hand, who was returning from Mew York to the place where he was employed upon a farm near the suburbs of Brooklyn. He had just delivered some produce at Washington Market, and when driving his team along the road about daybreak the horses shied, and his attention was in this way directed to an object in the road which, upon further examination, proved to be the body of a human being. He immediately gave information to-the public authorities, and the body was removed to the morgue, and subsequently identified as that of Francolosa, who-lived with his wife and the defendant in Twenty-fifth street, Brooklyn. It was evident that the death was the result of violence, as twelve stab wounds were found upon the body, most, of which were necessarily mortal, and it was shown that the deceased came to his death by reason of these wounds inflicted upon him. The defendant and the wife of Francolosa were-jointly indicted for the murder and upon a separate trial the de- ' fendant was convicted of the crime of murder in the first degree, and this appeal is for the purpose of reviewing the judgment, entered upon this conviction. It appeared that the deceased left, his house in company with the defendant some time during the night preceding the discovery of the body and started off to-gather rags, which seems to have been the occupation of both the-, deceased and the defendant. The killing of the deceased by the defendant by criminal means was established by various admissions and confessions of the defendant, as well as by circumstantial evidence, suchas the sale by the defendant, immediately after he inflicted the wounds upon the deceased, of the clothing which he, the defendant, then wore and which was found to be stained with blood after cutting and otherwise destroying them so as to-prevent identification. It was also shown that a few hours after the body was found the defendant and the wife of the deceased called at the police station and made inquiry about the deceased whom they pretended to believe had been locked up, though it is apparent that he knew then that he was dead in consequence of violence inflicted by himself. He removed a part of the furniture of the deceased from the house before he claims to have, known of the death, made preparations for flight and, when arrested, the jewelry of the wife was found in his possession. It is. unnecessary to make further reference to the testimony tending to show that the defendant was the author of the crime, because he- ‘ was sworn as a witness at the trial in his own behalf and admitted that he inflicted upon the body of the deceased the stabs which produced his death with a knife which he threw away after committing the deed. While his testimony established beyond any doubt the fact that the defendant committed the homicide, he at the same time attempted to show that the killing, was in self defense. The substance of his testimony on this point is that while he and the deceased were at the point in the road where the body was found the deceased demanded that the defendant should give to him the rags which he had gathered, and on refusal the deceased assaulted him and knocked him down, whereupon the defendant being apprehensive for his life drew the knife and inflicted the stab wounds in consequence of which Francolosa died. This theory had no support except in the testimony of the defendant himself, nor was there any fact or circumstance to corroborate him appearing in the case.

Leaving out the cross-examination of the defendant and putting his testimony in the most favorable light, and keeping in view the other testimony in the case, a jury, seeking for the truth, might Well hesitate before attaching much weight to the statements of the defendant. They were not only improbable in themselves, but in conflict with all the other testimony, including his own prior admissions and all the important circumstances bearing upon the case. The cross-examination rendered it still more contradictory, inconsistent and improbable. The learned trial judge submitted all the testimony to the jury in a very fair charge which was quite favorable to the defendant. In regard to the testimony of the defendant that he acted in his own defense the learned j udge instructed the jury that if they believed it then they should acquit him.

It is obvious that the case was one for the consideration of the jury. The trial was in all respects eminently fair, and we are unable, after careful examination, to find anything in the record sufficient to create a doubt as to the correctness of the result or to warrant us in interfering with the verdict. Indeed, the learned counsel for the defendant in the brief which he has submitted to us presents but a single question, and that is one of law growing out of the form of the indictment. His proposition is, as we understand him, that as there is but a single count in the indictment and that charges as the offense the killing of the deceased as the joint act of the defendant and the wife of Francolosa, the proof must establish a homicide committed by the defendants jointly and that the indictment is not supported by proof of separate acts as against' either of the defendants. The wife of the defendant was not present when the wounds were inflicted that produced his death, yet she is indicted jointly with the defendant. But under § 29 of the Penal Code a person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal. Several persons, therefore, may be convicted of the same crime upon a joint indictment on proof of acts done in furtherance of the crime that might in a certain sense be called separate.

For instance, one may be convicted upon proof that he fired the shot or struck the blow which produced death, and another' who is jointly indicted may also be convicted of the same crime,, who, though not present when the blow was struck or the shot fired, yet upon the proof advised, commanded or procured the doing of the act. Under § 391 of the Code of Criminal Procedure one of several defendants, jointly indicted for a felony, may be tried, separately, and, of course, when thus tried the proof is properly confined to the acts of the party upon trial, and under § 292 upon an indictment against several defendants any one or more may be convicted or acquitted. It seems to us plain, therefore, that when a party jointly indicted with another for an offense, charged to have been the result of their joint act, is tried separately, either upon his own election or otherwise, the indictment is well supported by proof sufficient to warrant a conviction if the party on trial had been indicted for the offense alone.

A sufficient motive on the part of the defendant for the commission of the offense was established by proof strongly tending" to show improper relations between him and the wife of the deceased, and of a desire on the part of both to put the deceased, out of the way, and thus remove any obstacle to their marriage. The defendant swore that he left the place where the stabs were-inflicted upon the deceased and went to the house and there informed the wife of what he had done, and then it was that both of them undertook to deceive the police by pretending that they supposed that the deceased had been picked up by them and taken to the station. It is unnecessary to go into the evidence on this point in much detail. It was submitted with the other evidence-to the jury. In brief, the proof was sufficient to justify the jury in finding that the defendant, acting from guilty motives, inflicted the wounds upon the deceased with a deliberate and premeditated design to effect his death, and as no other legal questions are raised and none, upon our examination, appear in the record, the judgment must be affirmed.

All concur, except Maynard, J., taking no part.


author: Finch, J.

text:
    The People, Resp’ts, v. William Trimble, App’lt.

      (Court of Appeals,

      Filed February 9, 1892.)

    Criminal law—Former acquittal—Judgment.
    When defendant was first arraigned he pleaded in bar a previous conviction for the same oñense. That issue was tried before a jury, and the verdict rendered was “ For the People.” An order was thereupon made permitting him to plead over, and he did so, pleading “ not guilty,” and upon trial ho was convicted. Held, that the fact that no judgment was entered after the trial of the issue first raised furnished no ground for the court at the second trial to direct aveidict of acquittal. (1) No proof was given in regard to it, and the Code does not authorize it as a ground for controlling the action of the jury. (2) It was not objected to on behalf oftheaceused, and he cannot now be permitted to complain thathe should have been convicted. (3) The order entered at the close of the first trial-was a substantial judgment entered upon the verdict.
    Appeal from judgment of the supreme court,""general term, fifth department, affirming judgment of the court of sessions of Niagara county convicting defendant of the crime of larceny in the first degree.

      Richard, Crowley, for app’lt; P. F. King, for resp’ts.

       Affirming 38 St. Pep., 997.

   Finch, J.

There is but one exception in this case which touches any material question. At the close of the testimony the prisoner’s counsel asked the court to direct a verdict of acquittal upon three grounds: first, that the evidence was insufficient to warrant a conviction of the larceny charged" in the indictment; second, that the proof was insufficient to show that the prisoner committed the crime; and third, that after the trial of the issue-raised by defendant’s plea of a former conviction, and the verdict rendered by the jury thereon, no judgment was or has been entered therein. The court refused to give the direction asked, and. the defendant’s counsel duly excepted.

The first two grounds of the motion concerned the facts, and were based upon § 410 of the Code of Criminal Procedure, which permits the court, when it deems the evidence insufficient to warrant a conviction, to so advise the jury, who are required to decide accordingly. While the evidence of the larceny and of the guilt of the prisoner was wholly circumstantial, quite enough was shown. to justify a submission of the issue to the jury, and we are not at. liberty to review their verdict on the facts. People v. Hovey, 92 N. Y., 554.

The third ground of the motion is the one principally argued at our bar, but cannot serve to reverse the judgment for several reasons.

1. It furnished no adequate ground for granting the request actually made. The alleged irregularity arose in this manner. When the defendant was first arraigned he pleaded in bar a previous conviction for the same offense. Under the Code he was at liberty to do that either with or without an added plea of not guilty. Code, § 332. He chose to avail himself of that privilege,, and by his plea raised separately and solely the issue of a former conviction. That issue was tried before a jury and the verdict rendered was “ For the People.” An order was thereupon made permitting him to plead over, and he did so, interposing the plea of not guilty. That issue was afterward tried and the prisoner convicted. If now we concede that it was irregular not to have entered a formal judgment upon the verdict of the first jury, such irregularity furnished no ground upon which the court on the second trial could be required to direct a verdict of acquittal. No proof was given pertinent to that question, and the Code does not authorize it as a ground for controlling the action of the jury. The question could not be raised in that manner or at that stage of the proceedings.

2. The omission of a formal judgment upon the first verdict was not objected to on behalf of the accused, nor was any demand made by him for its entry. If entered it must necessarily have been either a general judgment of conviction, which seems to be the claim of the appellant, or a judgment of respondeat ouster, the plea not sustained and the defendant must answer over. Certainly he cannot be heard to object that a formal judgment of conviction was not entered, for the error, if it was one, enured to his benefit. He accepted the order granted and availed himself of the privilege it gave him to answer over. He cannot now be permitted to complain that he should have been convicted when the issue of his guilt or innocence had not yet been tried.

3. But I think the order made at the close of the first trial may be regarded as a substantial judgment entered upon the verdict. It gave the accused every thing to which he was entitled. The Code does not dictate what judgment should be entered. The section to which the appellant refers as requiring' upon the issue of a previous conviction or acquittal a judgment of conviction or acquittal, § 442, relates only to the case of a special verdict in which the jury only find the facts. The only possible and proper judgment when the plea of a previous conviction or acquittal is interposed is a judgment upon that plea and must be either of acquittal because of the previous trial or that the plea has not been sustained and the defendant must answer over. The judgment must follow the verdict and the form of that is prescribed by the Code, § 437. That declares : “ A general verdict upon a plea of not guilty is either ‘guilty ’ or not guilty,’ which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal of the same offense it is either for the people,’ or for the defendant.’ ” It is evident that upon the latter verdict no judgment appropriate only to the former can be entered, and while the Code omits to prescribe what in terms it shall be, the prior practice shows that it must be respondeat ouster. The record here shows substantially that judgment. While it was not formal and took the shape of an order, it really existed; it' secured to the prisoner his right; and he availed himself of it without objection. There is, therefore, no substantial basis even for the claim of a material irregularity.

Tibe judgment should be affirmed.

All concur.