text:
    ROBERT D. JOHNSTON, Respondent, v. HUGH KELLY and JOHN B. CHANDLER, Appellants. LOREN D. ELDRIDGE and CHARLES G. THOMPSON, Respondents, v. THE SAME, Appellants. JAMES W. BAILIE, Respondent, v. THE SAME, Appellants.

      General assignment — is not invalidated by a failure to prefer the wages due to employees — 1877, chap. 466, see. 29, as amended by chap. 328 o/"1884.
    A general assignment, made by an insolvent debtor for the benefit of Ms creditors, need not contain an express provision giving the wages and salaries of his employees the preference over other debts required by section 29 of chapter 466 of 1877, as amended by chapter 328 of 1884.

      Richardson v. Herron (39 Hun, 537) and Burley v. Hartson (40 id., 121) followed.

      Appeal from a judgment setting aside a general assignment as fraudulent and void as td the creditors of the assignors.

      John O. Keeler, for Kelly, appellant.

      Horace H. Ellstvorth, for Chandler, appellant.

      Nelson L. Bobmson, for the respondents.
   Learned, P. J.:

Each of these actions is brought to set aside a general assignment, made by Kelly, on the ground that the assignment does not, in its terms, prefer laborers, the plaintiffs’ claiming that for this reason it is fraudulent and void.

The statute (Laws 1884, chap. 328) was evidently enacted for the benefit of laborers. It intended, in the case of an insolvent debtor, that the laborers whom he owed (who usually have small claims for which they cannot litigate) should be always protected. It is a humane statute and its object should be carried out as far as possible. Tne plaintiffs claim that the statute requires the assignor to insert in the assignment a clause preferring laborers; and that a failure to do this makes the assignment void. The defendants claim that, whether such clause be in the assignment or not, the duty of the assignee under the statute is the same, viz., to pay all laborers first.

If the plaintiff’s construction is correct, then, in case the assignor fails to insert such a clause, the laborers lose all the benefit of the statute. Because, if the assignment be set Aside, the laborers can obtain no preference, since there will be no assignment; and the person benefited by .the action to set it aside will be the vigilant creditor. This will seldom be a laborer, whose little claim could not generally bear the expense of such litigation. It would be necessary for every laborer to recover a judgment on his demand, and then to bring, or to join in, an action to set aside the assignment on the ground of the omitting a clause of preference. And after all this were done, even if the laborers were the vigilant creditors, they would have only gained what, upon the other construction of the statute, they would have without action. For, if the defendant’s construction is correct, no neglect of the assignor to prefer these laborers can take away their rights. They are preferred by the statute. The assignee must first pay them; just as an executor must first pay debts of the testator, although not required to do so by the will. It is, therefore, evident that the defendants’ construction always carries out, and the plaintiff’s often defeats, the humane intention of the statute.

Is there any difficulty in giving this construction ? The statute says: “ In all assignments,” etc. The plaintiffs construe these words as referring to the instrument itself. But it is equally sound to construe them as referring to the whole transaction; as if the language were: “In the case of all assignments,” etc. This meaning is made more distinct in the statute of 1886 (chap. 283): “ In all distributions of assets under all assignments made,” etc. The plaintiffs urge that the whole duty of the assignee must be found in the assignment. There is a certain half truth in that' statement. The -court cannot, from its own views of what the assignor ought to have done, change the duty which he has put on the assignee. But the legislature has put, as it lawfully might, certain restrictions about the matter of general assignments ; and they are, as it were, bankruptcy proceedings. The legislature has required the assignee to do several things which are not mentioned in the written assignment. We see no reason why it may not re quire him first to pay the laborers. The plaintiffs do not claim that the legislature could not impose this obligation on the assignor, to prefer‘laborers. ‘ If that can be done, we see no reason why the legislature may not make the preference of laborers in the distribution of assets, a condition, upon which alone the assignor may make a general assignment.

There is another view. This construction of the defendants sustains the assignment as valid. There is no charge that it was intentionally fraudulent; and therefore it should be supported if possible. The plaintiffs, it is true, assert that the omission to prefer the laborers is evidence of an intent to defraud them. But if the assignor knew that they were preferred by the statute, and that such preference was beyond his control, his omission to prefer them in the assignment showed no intent to defraud. A testator does not intend to defraud his creditors when he gives all his estate in devises and bequests and says nothing of his debts. He knows that the law provides for them.

The conclusion to which we have come is that of the first department in Richardson v. Herron (39 Hun, 537), and of the fifth department in Burley v. Hartson (40 Hun, 121). In the case of Harriott v. Masterton, of which a brief statement appears in 1 New York State Reports, 245, the assignment was set aside as made with fraudulent intent. The question here involved is not dibcussed, it is only briefly mentioned. So that we have no decision of the second department on the point.

The judgment should be reversed, and as there can be nothing gained by a new trial, judgment for defendants must be rendered with costs here and in the court below.

Landon and Mayham, JJ. concurred.

Judgment reversed in each case, and judgment rendered lor defendants, with costs here and in the- court below.


source: Caselaw Access Project

author: Landon, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE BOARD OF EDUCATION OF THE CITY OF HUDSON, Respondent, v. HENRY W. DAKIN, the City Treasurer of the City of Hudson, Appellant.

      Direction to raise a specified amount by the sale of city bonds — when a premium realized on the sale belongs to the city and not to the fund entitled to the principal.

    Section 1 of chapter 298 of 188'i directs that “ it shall be the duty of the common council of the city of Hudson to borrow, upon the credit of said city, such sum of money, not exceeding twenty-fire thousand dollars, as the board of education of said city shall certify to said common council to be necessary ” to erect a school-house. Pursuant to a certificate made by the board of education stating that “the proceeds of the bonds of the city of Hudson, of the par value of twenty-five thousand- dollars,” would be necessary and be required by the board for the purpose of erecting such building, the common council passed a resolution directing that bonds of the city in the amount of $25,000, bearing five per cent interest, be sold. Upon the sale of the bonds, of the par value of $25,000, a premium of $2,802.50 was realized.

      Held, that this premium belonged to the city, and that the board of education was not entitled to have the entire “proceeds of the bonds ” paid over to it as required by its certificate.
    Appeal from an order made at Special Term, on the 29th day of October, 1886, and entered in Columbia county directing the issue of a peremptory mandamus commanding the defendant to place the proceeds of the sale of certain bonds issued under an act of the legislature, together with the premium realized on such sale, to the credit of the plaintiff.
    The board of education, the relator in this proceeding, was organized under and by virtue of chapter 55 of the Laws of 1881. The statute under which this controversy arises is chapter 298 of the Laws of 1886, entitled, “An act to provide for borrowing money upon the credit of the city of Hudson, to erect a public school building in said city, and procure site therefor.” Section 1 of this act reads as follows :
    Section 1. It shall be the duty of the common council of the city of Hudson to borrow upon the credit of said city such sum of money, not exceeding twenty-five thousand dollars, as the board of education of said city shall certify to said common council to be necessary therefor, to erect a public school building in said city, procure the proper site therefor, and furnish such building, upon such terms, and at such rate of interest, not exceeding five per centum per annum, as shall be deemed for the best interests of said city, and secure the same by issuing bonds of said city, signed by the mayor and clerk, and sealed with the seal of said city, which shall be made of such denominations respectively, and payable at such times as said common council shall determine. Said bonds shall be sold at public auction, at not less than par, and the moneys so borrowed on the sale of said bonds shall be paid to the city treasurer, and by him placed to the credit of the board of education of said city, and paid out only on the order or draft of such board, for the purposes aforesaid, m carrying into effect the provisions of this act.
    Sec. 2. The common council of said city shall raise such amount of money by tax upon the taxable property of said city as shall be sufficient to pay the principal and interest of said bonds as the same shall become due and payable, which amounts so to be levied and collected shall be in addition to the amount that is now or shall be authorized to be raised for other purposes by law.
    After its passage, and on or about July 27, 1886, the board of education caused a certificate to be served on the common council, in which it was certified “ that for the purposes in said act mentioned, to wit, to erect a public school building in said city, procure the proper site therefor, and furnish said building, the proceeds of the bonds of the city of Hudson, of the par value of twenty-five thousand dollars, will be necessary and will be required by this board for the purposes aforesaid.” Thereupon the common council of the city of Hudson, by a preamble and resolutions adopted on August 12, 1886, provided for the borrowing of the sum of $25,000 on the bonds of the city for that amount. On September 30, 1886, a public sale of such bonds was held at the court-house in the city of Hudson, upon which the said bonds brought, in addition to the sum of $25,000, their face value, a premium of $2,802.50. On September 30,1886, the common council, by resolution, directed the city treasurer to pay to the board of education, out of the moneys realized by the above-mentioned sale of bonds, the sum of $25,000, “pursuant to the provisions of the act under which said bonds were sold; and he is hereby directed to place the balance of the money realized by said sale in the general fund of the city.” Thereafter, and on the 1st day of October, 1886, the board of education made a demand on the city treasurer for all of the moneys realized on the sale of the aforesaid bonds, “ including the premium of two thousand eight hundred and two dollars and fifty cents, received at said sale (except the necessary expenses incurred by the common council in preparing bonds and making such sale).” This demand Mr. Dakin, the city treasurer, refused to accede to. It was to compel him to pay the amount in question that this proceeding was brought.

      Cady dh Uoysradt, for the appellant.

      John V. Whitbeck, for the respondent.
   Landon, J.:

The amount the common council could lawfully borrow could not exceed $25,000. The amount the board of education could lawfully certify could not exceed the sum the common council could lawfully borrow, and was, therefore, limited to $25,000. The common council was empowered to secure the sum thus borrowed by issuing the bonds of the city bearing interest at the rate of not more than five per centum per annum. Bonds to the amount of $25,000, of principal bearing five per cent interest, were issued and sold, and a premium of $2,802.50 was realized over the principal sum. The act provides that. “ the moneys so borrowed on the sale of said bonds shall be paid to the city treasurer, and by him placed to the credit of the board of education,” etc. The certificate of the board of education called for the entire proceeds of the bonds.

Now “ the moneys so borrowed on the sale of said bonds ” was only the principal sum of $25,000. The city offered for sale $25,000 of bonds, bearing five per cent interest. The buyers bought them at such lower rate of interest as required them to pay to the city the sum of $2,802.50, to make good to the city the difference between the two rates. Because of its good credit the city has had this amount of interest which it has agreed to pay already returned to it. It is not money borrowed to build a school-house, but the excess of interest promised over and above the interest required. This construction makes the entire loan a lawful one; if not adopted, it would be difficult to justify the city in not stopping the sale of its bonds when the total of $25,000 was reached. The premium thus becomes the property of the city, as the incident or profit of a lawful transaction. (People v. Ingersoll, 58 N. Y., 1.) The certificate of the board of education could have no force except within the terms of the power to make it.

The order awarding the mandamus must be reversed, but without costs.

Learned, P. J., and Mayuam, J., concurred.

Order reversed and motion denied, without costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES R. JOHNSTON, Appellant, v. THE BOARD OF SUPERVISORS OF ULSTER COUNTY, Respondent.

      County charge — the loss sustained by a creditor on discounting a valid claim against the county, is not a county charge.

    The relator was entitled to the payment, monthly, of a per diem compensation of two dollars per day for his services as janitor of the armory of the city of Kingston. No provision having been made by the board of supervisors for these payments he discounted his claims at a bank, paying therefor, in all, the sum of forty-two dollars and fifty cents.

      Held, that the discount allowed to the bank was not a county charge, and that an application for a mandamus to compel the board of supervisors to allow the claim was properly denied.
    Appeal from an order, entered in Ulster county, denying a writ of peremptory mandamus against respondent, applied for by appellant, under, an order'to show cause why such writ should not issue, . to compel respondent to audit, allow and provide payment for a bill ¡presented by relator- to said board, of the sum of forty-two dollars and fifty cents.
    The relator, who was janitor of the armory of the city of Kingston, Ulster county, under a per diem compensation of two dollars, claimed that at the end of every month he sold or assigned his salary or wages of the previous month to the National Ulster County Bank for a certain discount, at a loss aggregating, for the several months for which he was employed, the sum of forty-two dollars and fifty cents. This bill being presented to the board, was rejected.

      Charles A. Fowler, for the.appellant.

      A. D. Lent, for the respondent.
   Landon, J.:

The relator was entitled to the payment monthly for his services as janitor of the armory, and his monthly wages were a county charge. (Chap. 299, § 64, Laws 1883.) But provision was not made for his monthly payment, and he had the bills discounted at .a bank; the aggregate' amount of the discounts allowed the bank was forty-two dollars and fifty cents. The relator presented a ■verified bill to the board of supervisors for this sum and its allowance was refused.

The discount allowed by the relator to the bank was not for the benefit of the county, and is not a- county charge. The relator’s -claim is of the nature of damages for delay in payment. No statute authorizes such a charge. If interest ought to be allowed, it would .attach to the bills themselves and be the claim of the present holder. -The propriety of the allowance of the present claim is doubtful; certainly the relator has no clear legal right to it. The motion for a mandamus was properly denied, and the order should be affirmed with ten dollars costs and printing disbtirsements.

Learned, P. J., concurred; Parker, J., not acting.

Order affirmed, with ten dollars costs and printing disbursements.


author: Landon, J. :

text:
    JACOB S. FRIEDMAN, Jr., as General Assignee, etc., Respondent, v. ISAAC BIERMAN and Others, Appellants.

      Note given by a husband to his wife for money loaned — void when, part of the consideration is an agreement to live apart — requests for findings of fact as provided in Code of Giml Proceedure, section 1033 — when they may be passed on by the referee after the delivery of his report — they must state propositions of fact, and not the evidence tending to establish them.

    This action was brought by the plaintiff, as the general assignee of one Morris King, to recover property seized under an attachment issued in an action brought by the defendants, judgment creditors of King, against King. The defendants .claimed that the assignment was fraudulent and void as to King’s creditors. By the assignment, the wife of the assignor was preferred in the amount of a promissory note given by the assignor to her for $3,000, dated January 3, 1883.
    The referee, before whom the action was tried, found, as to this note, that in May, 1881, the wife commenced an action against King for divorce; that at that time they were, and for six months had been, living apart from each other; that in the same month it was agreed that the action should be discon, tinued; that they should live separate and apart from each other, and that, in consideration thereof, he would pay her $3,000; that the action was thereupon discontinued and the money paid to the wife; that she deposited the money in , a bank; that during the latter part of 1881 the wife visited her husband in Indiana, where he was carrying on business; from that State they returned to Ballston as husband and wife, and were living together on January 1, 1882, when she loaned the $3,000 to her husband, who, a few days afterwards, gave (o her the note in question, dating it January 2,1882; and that they still continue to live together as husband and wife.
    The referee was requested to find that the note was not a valid claim against the assignor.

      Held, that the referee erred in refusing to do so.
    That even if it were assumed that I he action for divorce was commenced in good faith and upon reasonable grounds, and that the agreement to discontinue it furnished a meritorious consideration for the note, yet as the wife was subsequently, at her own solicitation, restored to her proper marital relation^, the consideration for the money paid failed.

      That as the agreement to live separate and apart from each other, which was a part of the entire consideration, was an illegal one, the whole agreement was void.
    Upon the submission of the case to the i'eferee, the attorney for the defendants submitted to him a statement of the facts which he deemed established by the evidence, with a view of obtaining his rulings upon them, as provided by section 1023 of the Code of Civil Procedure. This paper having escaped the notice of the referee until after he had made and delivered his report, he, on his attention being called to it, noted on the margin thereof the disposition he made of each proposition and delivered it to the defendants’ attorney, who inserted the same, with his exceptions to the adverse rulings of the referee, in the appeal book as part of the case and exceptions.

      Held, that the requests and refusals of the referee, and the defendants’ exceptions to them, were properly brought before the Appellate Court.
    The court, after referring to the language used in the said section 1023, requiring the attorney to present, in the form of “ distinct propositions of fact,” a “ statement of the facts which he deems established by the evidence,” and saying that the propositions must be in the form of facts established, and not in the form of the evidence tending to establish them, and stating that it would be hazardous to attempt to formulate any general rule beyond what the present ease strictly required, proceeded to consider the requests made in this case, and held that as to some of them the referee erred in refusing to pass upon them upon the ground that they were findings of evidence merely.
    Appeal from a judgment in favor of the plaintiff, entered in Fulton county, upon the report of a referee.

      Moses P. Grow, for the appellants.

      G. M. Parlte, for the respondent.
   Landon, J. :

The defendants are judgment ereditoi’S of Morris King, and the plaintiff is his general assignee for the benefit of creditors. The assignment was made December 8, 1883. The defendants after-wards brought their action against King, and on the 7th day of January, 1884, caused to be seized upon attachment some of the assigned property, which, upon perfecting judgment, was after-wards sold upon execution.

The plaintiff brought this action to recover for the goods thus seized. The defendants answered alleging that the assignment was fraudulent against creditors. The referee found for the plaintiff. The assignment, among others, preferred the wife of the assignor in the amount of a promissory note given by the assignor to her, dated January 3, 1882, for $3,000 and interest.

The questions presented by this appeal are whether the findings and rulings of the referee were so far erroneous as to improperly prejudice the defense. The evidence on the part of the defendants tended to show that Morris King, the assignor, prior to June, 1881, had lived in Ballston Spa with his wife; that he liad been engaged in business there, but then went to the State of Indiana, where he engaged in business, but returned to Ballston in the latter part of December in the same year; that at the date of his note to his wife he was indebted to Polily & Co., of which firm his assignee was a member, in some sum not stated ; also to Schattman Brothers in about $1,000 ; that he was destitute of means except the $3,000 which he obtained from his wife; that he settled with Schattman Brothers; that some time afterwards he, engaged in the ready-made clothing' business at Gloversville; that he bought goods largely upon credit, and, in order to obtain some of the credits given him, made false representations in regard to the amount of his property and indebtedness.

The referee found that in August, September and October, previous to his assignment, his purchases upon credit were larger than he was accustomed to make. The evidence tended further to show that after the assignment, though others were nominally placed in charge of the assigned property, the assignor was retained by the assignee, and permitted by him to have the same control and management of his store, until the defendants levied their attachment, as before; that the assignee when inquired of by a creditor respecting the assignment spoke of himself ao a mere figure head in the matter; that the assigned property was not more than sufficient to pay the preferred creditors, of whom the assignee was one. The assignor was not examined as a witness.

The facts respecting the $3,000 note to the assignor’s wife were found by the referee substantially as follows: In May, 1881, the wife of the assignor commenced an action against him fur divorce. They were then living apart from each other and had been for six weeks. In the same month it was agreed between them that the action should be discontinued; that they should live separate and apart from each other, and that in consideration thereof the husband should pay his wife $3,000; whereupon the action was discontinued and he paid her $3,000. She deposited the $3,000 in bank, and it remained there until January I, 1882, when she loaned it to her husband, who a few days afterwards gave to her the promissory note in question, dating it January 2, 1882. During the husband’s absence in' Indiana, the wife remained in the same house they had occupied together in Ballston. In the latter part of the year 1881, she visited him in Indiana, they returned to Ballston. as husbapd , %nd wife, and were living together as such when the note was given, and continue so to live. The referee was requested to find that the wife returned the $3,000 to her husband, but he struck out the word returned and inserted the word loomed in its place. He was requested to find that the note given to the wife was not a valid claim against the assignor, but he refused. We think this was error. Whether the action for divorce was commenced in good faith and upon reasonable grounds, and how far it had proceeded, the case does not show.

If the action had been commenced in good faith and upon reasonable grounds the agreement to discontinue, standing alone, would perhaps have been a meritorious consideration for the $3,000. (Adams v. Adams, 91 N. Y., 381.) When the wife parts with such a cause of action to her prejudice she may properly be paid for it, but when she parts with it, and at her own solicitation subsequently is restored to her proper marital relations, what seemed to be to her prejudice is really to her advantage, and the consideration for the money paid fails. But the agreement to live sepai’ate and apart from each other was part of the entire consideration, and this was an agreement condemned by public policy, and was, therefore, a vicious consideration. (Rogers v. Rogers, 4 Paige, 516.) Besides, the agreement to live separate and apart will be considered as rescinded if the parties live together again as husband and wife. (Carson v. Murray, 3 Paige, 483; Shelthar v. Gregory, 2 Wend., 422.) The consideration being entire and part being void, because of its original vice, the whole is void. (Crawford v. Morrell, 8 Johns., 253; Thayer v. Rock, 13 Wend., 53; Baldwin v. Palmer, 10 N. Y., 232; De Beerski v. Paige, 36 id., 537; Saratoga Co. Bank v. King, 44 id., 87; Dow v. Way, 64 Barb., 255.) When the wife returned the $3,000 to her husband she returned the consideration of the void contract, and the money became her husband’s. The note subsequently given by 'him was void. The $3,000 were not given by the husband to the wife as a gift, and the note which he gave his wife cannot .be upheld as a gift. (Whitaker v. Whitaker, 52 N. Y., 368.)

It is not necessary to say that the preference given to this invalid note would vitiate the assignment. It may have been preferred in entire good faith. But if the referee had found that it was void, we do not know but that conclusion, taken -in connection with the other evidence in the case, would have turned the scale in favor of the defendants. There was some evidence tending to show that the giving of the note was an afterthought. That afterthought may have embraced the possibility of some such assignment as this, and the scheme may have been to save to the assignor in any event the $3,000 by charging it upon the property turned over to his creditors. The referee, by holding the note valid, did not have occasion to consider this aspect of the case.

Upon the submission of tile case to the referee, the attorney for the defendants submitted to him a statement of the facts which he deemed established by the evidence, with the view of obtaining his. rulings upon them, as provided by section 1023, Codé of Civil Procedure. It seems that this paper escaped the. notice of the referee until after he had made and delivered his report. His attention then being called to the omission, he noted in the margin the dis-' position he made of each proposition and delivered it to the defendants’ attorney, who inserted the same, with his exceptions to the adverse rulings of the referee, in the appeal book as part of the case and exceptions. We think the defendant cannot be deprived of the right given him by this section by the mere inadvertence of the referee. Besides, .the referee, did. not,wholly .discharge.. Or exhaust his functions with respect to the case iintil he noted his disposition of these propositions. , ;

The requests and responses of the referee, and the defendant’s exceptions to them, are properly before us. The referee, however, in response to certain propositions, marked them, “refused as a finding of evidence merely.” The section cited requires the attorney to state in the form of “distinct propositions of fact” the “statement of the facts which he deems established by the evidence.’’ The propositions must, therefore, be in the form of facts established, not in the form of the evidence tending to establish them, for some evidence may have been given tending to prove facts material to the decision of the issues, and yet not sufficient to prove them. It would be hazardous to attempt to formulate any general rule beyond what the present case strictly requires. We insert two of these requests to find, the first of which was properly refused for the reason given, and the second was not:

First. “ In the latter part of December, 18-SI, Morris King and Samuel B. Mount together called upon Julius Schattman, of the firm of Schattman Brothers, who had a claim against King for one thousand dollars, for the purpose of effecting a compromise. They represented to him that King was poor and had lost everything ; that he had left his wife three thousand dollars at the time he separated from her, and that coming back as a poor man his wife was willing to pay him back the three thousand dollars in in order to effect a settlement with his creditors.” It is plain that if the referee had found that these representations were made, and yet had not passed upon the facts touched by the representations, he would not have found anything material to the decision.

Second. “ That in September, 1883, Morris King purchased goods on credit from M. A. Tynberg & Co., and to obtain such credit represented to them that he was wortli between eight thousand and ten thousand dollars; that his old affairs were all settled up, and that he owed no one anything of any consequence. Such representations were false.” These were distinct propositions of fact.

Upon the theory which the defendants sought to establish, that the assignor procured goods upon credit, having in view his ultimate assignment to a friendly figure head as assignee, and the preference to himself under color of the note to his wife, and his subsequent management of the assigned property, the fact that the assignor resorted to false representations in order to obtain some of the goods upon credit would be material.

The representation in this proposition is a material fact in itself, while in the former proposition it is only evidence of the fact. Of course it may be said that the entire second proposition is only evidence tending to support the charge of a fraudulent assignment, and that a finding upon that proposition merges all minor propositions leading up to it. But we do not think that section 1023 should have so narrow a construction. The propositions authorized are those which the attorney deems established by the evidence, and it is manifestly intended that he may so present his propositions in detail as to clearly lead to the decision which he asks to have made.

There were other propositions submitted, some of which were properly refused as a finding of evidence, and at least two others that we think ought not to have been so regarded. If the propositions which ought to have been passed upon had been found in favor of the defendants, they no doubt would have affected the result.

We think the judgment .should be reversed, a new trial granted, referee discharged, costs to abide the event.

Learned, P. J., and Bookes, J., concurred.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


text:
    ABRAM V. MORRIS, Respondent, v. FRANCIS A. FALES, Appellant, Impleaded, etc.

      Sight of a creditor to enforce either one of two- securities, as may be most to Ms advantage.

    This action was brought to foreclose a mortgage, dated November 28,1883, given to the plaintiff by the defendants Clark & Kline upon their “brewery lot” to secure the plaintiff for moneys loaned and notes and obligations made by Clark & Kline, held or indorsed by the plaintiff, “provided, however, that said liabilities shall at no time exceed six thousand dollars, exclusive of costs and expenses; and, to the extent of six thousand dollars, this conveyance shall be a continuing security for any amount that may, at any time, be due said Morris.” On March 12, 1883, Clark & Kline gave the plaintiff a mortgage upon other property for $16,000 to secure the plaintiff, as their indorser, relying upon which the plaintiff indorsed their notes to the amount of $14,500. In addition thereto the plaintiff discounted a note for $5,000, made by them and indorsed by Mary McDonald, which became due November 30, 1883.
    On December 3, 1883, Clark & Kline made a general assignment for the benefit of their creditors, m which a preference was specified for the McDonald note. Thereafter, and on March 6, 1884, the assignees agreed to sell to the defendant Fales, the real estate of Clark & Kline incumbered by the mortgages above men tioned and others, for the price of $35,000, upon the further agreement that the assignees should, from the said $35,000, pay the two mortgages held by the plaintiff. The assignees having paid the debt secured by the $16,000 mortgage, and the note indorsed by McDonald, claimed by the iffaintiff to be secured by the mortgage upon the brewery,'but they failing to pay a $4,000 note, also secured thereby, the plaintiff brought this action to foreclose it.

      Held, that a claim, made by the defendant Fales, that the $5,000 paid upon the McDonald note should be applied in reduction of the $6,000 limit fixed by the brewery mortgage could not be sustained.
    That the plaintiff had the right to use the two securities to his own best advantage, and that he could not be compelled to foreclose his mortgage until he had realized all he could upon the $5,000 note, under the preference given it in the assignment, so as to bring the balance secured by the brewery mortgage within the $6,000 limit fixed by it. .
    Appeal from a judgment of foreclosure and sale, entered in Montgomery county upon the decision of the court.
    The action was brought to foreclose a mortgage, dated November 28, 1883, given to the plaintiff by the defendants, Clark & Kline, upon their “ brewery lot,” to secure the plaintiff “ for moneys loaned and paid by said Morris (plaintiff) and upon certain notes and obligations held or indorsed by Morris, but made by Clark & Kline, * * * the security to extend to and include any and all notes, etc.; provided, however, that said liabilities shall, at no time, exceed six thousand dollars, exclusive of costs and expenses; and to the extent of six thousand dollars this conveyance shall be a continuing security for any amount that may, at any time be due said ^ Morris.”
    Two days before this mortgage was given, Clark & Kline gave the plaintiff their promissory note for $4,000, at three months. The plaintiff, by this action of foreclosure, sought to collect said note. The defendant Fales, who was a subsequent purchaser of the mortgaged premises, defended and showed the following facts: On the 12th of March, 1883, Clark & Kline gave the plaintiff a mortgage upon other property, known as the mill property, for $16,000, to secure plaintiff as their indorser, and plaintiff thereafter indorsed Clark & Kline’s notes to the amount of $14,500. Plaintiff, in addition, loaned Clark & Kline $5,000 upon their note for that sum, dated August 27, 1883, indorsed by Maria McDonald. This note became due November 30, 1883. On the 3d day of December, 1883, Clark '& Kline made a general ‘assignment for the benefit of their creditors, of all their property, to ITinman & Crane, who accepted the trust. On the 6th of March, 1884, the general assignees negotiated with the defendant Tales for the sale by them, to him, of the real estate of Clark & Kline covered by the - two mortgages aforesaid, and also incumbered by other mortgages, for the sum of $35,000, subject to the last mentioned mortgages, but upon the agreement of the assignees that the $16,000 and the continuing security mortgages to the plaintiff should be paid and satisfied by them out of the $35,000 purchase money. The assignees gave Tales a deed of the two properties March 8, 1884, in pursuance of such negotiation, and Tales paid them the $35,000. The plaintiff was notified after the deed was given of the terms of the agreement between the assignees and Tales. On the following day one of the assignees paid to plaintiff the amount of the $5,000 note indorsed by Maria McDonald, but did not pay the $4,000 note, for which the mortgage is now sought to be foreclosed. All the notes indorsed by the plaintiff for Clark & Kline were paid by the assignees.
    The defendant Tales contends that the $5,000 payment should be applied in reduction of the $6,000 limit of the mortgage in suit. The plaintiff contends that that payment reduced the balance due to him from Clark & Kline to the $4,000 note which he now seeks to enforce. The trial court so held.
    E F. Bullard, for the appellant.

      M. L. Stover, for the respondent.
   Landon, J.:

When Clark & Kline failed, the plaintiff held their two notes, one for $5,000, indorsed by Maria McDonald and secured by a preference in the general assignment, and the $4,000 note, here in suit, not so secured; but both notes were secured by the mortgage now sought to be foreclosed to the extent of $6.000. The plaintiff liad the right to use these two securities to his best advantage, if the superior equities of third .parties did not prevent. Certainly he conld not be compelled to foreclose this mortgage until he had realized all he. could upon the $5,000 note under the preference given it in tlie assignment, so as to bring the balance secured by this mortgage within the $6,000 limit fixed by it.

It is true the assignees could have paid the $6,000 secured by the mortgage, and have thereby satisfied it. But they did not attempt to do this, but voluntarily paid and applied $5,000 upon the note preferred by the assignment. Whether their assets would justify their payment to the plaintiff of the $5,000 in full was a matter for them to determine, as between themselves and 'the plaintiff, and which we are not called upon by the assignees to ascertain. They failed to keep their agreement with Fales to procure the discharge of this mortgage, but the plaintiff did not become their surety for their performance. For aught that we know, the remedy of Fales is complete against them, without compelling the plaintiff to apply the money he received from the assignee to any other purpose than they applied it. The $5,000 note was in the second class of preferred claims. After paying all of these claims it appears that the assignees had in their hands $1,146 in money and $3,500 of claims in litigation. It is not clear that Fales may not compel them to protect him against this mortgage without exposing them to personal loss.

But the case is still stronger for the plaintiff. He held the $16,000 mortgage to protect himself against his indorsements for Clark & Kline. He had been paid the $14,500 of notes which he had indorsed for them. The $5,000 note had been discounted by him at his own bank, but he had indorsed it and procured its rediscount at another bank ; this note fell due November 30, 1883, and Clark & Kline gave to the plaintiff a new note with Maria McDonald’s indorsement, and thereupon the plaintiff paid the first note. It is not probable that the $ 16,000 mortgage was m terms security for this note, but the plaintiff claimed it was and refused to satisfy it until the balance claimed by him to be unpaid upon it should be paid, and when it was paid by paying the $5,000 note lie satisfied the $16,000 mortgage. The assignees were thus enabled to make good to Fales that part of their agreement whereby they undertook to procure the satisfaction of both mortgages held by plaintiff. They recognized the force of the plaintiff’s position with respect to the $16,000 mortgage, and accepted the terms proposed by him for its satisfaction. Suppose he did demand more than he could maintain by litigation. His demand was voluntarily complied with by the assignees, and thus a doubtful claim was adjusted and the land freed from the record of an incumbrance.

The defendant claims that the payment of either of the two notes by the assignees extinguished the mortgage to the extent of the payments. But the mortgage was by its terms a continuing security for any amount that may at any time be due upon any or all notes or renewals of them, to the amount of $6,000. The defendant concedes that if Clark & Kline had not failed and had made payments upon either note the mortgage would have been good for any balance not exceeding $6,000. The assignees stand in Clark & Kline’s shoes, and may voluntarily pay upon either note, subject to correction if they improperly impair the rights of other creditors of their assignors. And the plaintiff may take that which is his due without liability to be bound by a contract which the assignees make with Bales. The difficulty with Fales’ case is, he relied upon the assignor’s representation that they would procure Morris to satisfy both mortgages, when the fact was that Morris was determined that he would not satisfy both unless both were paid to the extent that he claimed that they were valuable. It was not convenient for the assignees to pay at that time both in full, and they procured one to be satisfied, and probably hoped to be able soon to satisfy the other, hut have not yet found it convenient.

The "judgment should be affirmed, with costs.

Learned, P. J., Bocees, J., concurred.

Judgment affirmed, with costs.


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

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EGBERT PALMER, Appellant.

      Power of the court in a criminal actum to allow a jury to view the premises — Code of Criminal Procedure, secs. 411, 412 — it cannot be done in the absence of the defendant and his counsel — autre fois acquit — assault in the first degree; in the third degree— court for the trial of — punishment for.

    Upon the trial oí the defendant before the Court of Sessions of Greene county, upon an indictment charging him with an assault in the first degree, committed by wilfully and feloniously discharging a loaded pistol or revolver at one Ira Gray, it appeared that the assault was committed at a saloon or liquor store, in the village of Catskill, kept by one Hallenbeck. Upon the application of the defendant's counsel, and with the assent of the district attorney, the county judge decided to allow the premises where the crime was committed to be viewed by the jury, the judge and two officers, but refused to permit the defendant or his counsel to accompany them. After reading to the jury sections 411 and 417 of the .Code of Criminal Procedure, providing for a view of the premises and the manner of conducting the same, the county judge, the jury and the two officers left the court-room. On their return the judge stated that the jury had been to the store or saloon of Hallenbeck Brothers, and that all places mentioned by counsel had been examined by the jury, who had full opportunity to thoroughly view the place, and that the jury had not been allow t d to communicate with one another, or to hold any conversation with any person outside.

      Held, that section 3 of article 1 of the Constitution, providing that “in any trial, in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel, as in civil actions,” gave to the defendant a right to appear and defend, in person and with counsel, in every part of the trial, and that it forbid the hearing by the jury of any evidence, in the absence of himself and his counsel, without his consent. (Per Learned and Bocees, JJ.)
    That as evidence was, in this case, given to the jury, in the absence of defendant and his counsel, the judgment should be reversed. (Per Learned and Bocees, JJ.)
    After a prisoner, indicted for a crime in the first degree, has been convicted of that crime in the third degree, and such conviction has been reversed on appeal, the prisoner, having been acquitted of the crime in the higher degree, cannot, under section 36 of the Penal Code, “ be thereafter indicted or tried for the same crime in any other degree.” (Per Bocees, J.)
    An appeal or motion for á new trial does not operate as a waiver by the defendant of his constitutional protection, as to those charges as to which he has been acquitted.
    Under an indictment for an assault in the first degree a verdict of assault in the third degree maybe received in the Court of Sessions, under section 444 of the Code of Criminal Procedure, notwithstanding the exclusive jurisdiction conferred by section 56 of the Penal Code, in certain cases (including assault in the third degree), upon the Court of Special Sessions.

      Qtuere, whether section 717 .of the Code of Criminal Procedure has not “specially prescribed,” within the meaning of section 15 of the Penal Code, a punishment for the offense of assault in the third degree, which must be the punishment to be imposed therefor in all courts, although said section 717 has special application to the Courts of Special Sessions. (Per Bocees, J.)
    Appeal by the defendant from a judgment convicting him of the-crime of assault in the third degree, rendered against him by the Court of Sessions, held at Catskill, Greene county, April 21, 1886.

      The defendant was indicted at the Greene County Oyer and Terminer, December, 1885, of assault in the first degree. The substance of the charge was that the defendant shot at and-wounded one Ira Gay, at the saloon of ITallenbeck Brothers, in Catskill, in the evening of October 2, 1885. It appears from the printed case that after the people had rested the following proceedings were had:
    By Defendant’s Counsel — The defendant, by his counsel, now requests that the jury be allowed to view the place in which the ci-ime is charged to have been committed and as to where the material facts occurred, and requests-' the court to order it under section 411 of the Code of Criminal Procedure. (Here the judge and justices of sessions confer together.) ■
    By the Court — -So far' as the court is concerned, I will permit the jury to view the premises if it is thought necessary.
    District Attorney —So far as wé are concerned, we are perfectly willing the jury should examine .these premises thoroughly.
    By the Court —I will allow it; that there may be no misunderstanding on the part of the jurors, I will-read the section of the Code for your consideration : “411. When,in the opinion of the court, ■it is proper that the-jury should- view-the place in which the crime is charged to have been committed or in which any material fact occurred, it may order .the jury to be conducted in a body, under the charge of proper officers, to the place, which must be shown to them by a judge of the court ‘or by a person appointed by the court for that purpose.”'
    I will also read section 412 of the Code,'in which is pointed out the duty of the officers as to the jury,-which reads thus: “The officers mentioned in the last section must be sworn to suffer no person to speak to or communicate with the jury nor to do so themselves on any subject connected with- the trial, and return them into court without unnecessary delay or at a specified time.” It appears that you are to hold no conversation with any person outside nor with yourselves while going to ’or returning from the place, nor while there, on any subject connected with the trial. Defendant’s counsel requests the court to allow the attorneys for the defense to accompany the court and jury to the place of the alleged offense, and also that the justices of sessions be allowed to accompany the jury as well.

      By the Court — I am going to keep myself within the language of the statute. [The court here reads from section 412 of the Code of Criminal Procedure.] I will allow only the two officers, myself and the jury to go. (To which defendant excepts.)
    Defendant’s Counsel — I ask the jury, each one, to examine the right-hand side of the back door, the casing where it comes down twenty inches above the floor, and see if they can find a bullet shot there.
    District Attorney — The district attorney objects to the defendant’s counsel instructing the jury.
    By the Court — I will not allow any speeches.
    Defendant’s Counsel — The defendant’s counsel requests of the court the privilege of mentipning to the jury certain points and marks at the place within the room where the affray occurred, and of requesting them to especially notice and examine such particular points at the time of their viewing the premises.
    By the Court — I shall allow no one to go with the jurors except the two officers and myself. The clerk will swear the officers. (The oath is administered by the court.)
    By the Court — One officer will go ahead of the jurors and the other follow them.
    The county judge, the two officers and the jury leave the courtroom. On their return into the court-room the judge states : “ The jury have been up to the place, store or saloon of Hallenbeck Brothers. All the places indicated by counsel were examined by the jurors, and the jury had full opportunity to view the place "thoroughly. All persons were excluded from the room except Hallenbeck Brothers, and the jurors, in going to and returning from the place, were preceded by one of the officers and followed by the other, and were not allowed, in going to and returning from ' the place, or while there, to comunícate with one another or hold any conversation with any person outside.”
    Defendant’s Counsel- — And that was done in the absence of the defendant and his counsel and of the sessions justices.
    By the Court — It was done in their absence.
    Defendant’s Counsel — Who were not permitted to accompany -them.
    By the Court — I will allow, the defendant and his counsel were not permitted to accompany the jury. (To which defendant’s counsel excepted.)
    Defendant’s Counsel — And in the absence of the sessions justices who were not permitted to accompany the jury.
    By the Court — The sessions justices did not accompany the court and jury in viewing the premises.

      S. Qrowell, for the appellant.

      Augustus Sherman, district attorney, for the respondent.
   Learned, P. J. :

The Constitution says that “ in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel, as in civil' actions.” (Const., art. 1, § 3.) This gives him a right to appear and defend in person and with counsel in every part of the trial. It forbids the hearing by the jury of any evidence in the absence of himself and his counsel, without his consent. This right is again stated in section 8, Code Criminal Procedure. And probably no one would doubt that to give evidence to a jury in the absence of a prisoner, and without his consent, would violate the Constitution, and that a verdict so obtained could not stand.

Then the question is: "Was evidence given to the jury in this case, in the absence of the prisoner ? One member of the court and two officers, sworn according to section 412 of that Code, went out from the court-room. The two other members of the court and the prisoner and his counsel remained. The prisoner asked to accompany the jury, but this was refused. On returning, the member of the court who had gone with them stated that the jury had been up to the place, store or saloon of the Hallen beck Brothers, and that all places mentioned by counsel had been examined by the jury; that the jury had not been allowed to communicate with one another, or hold any conversation with any person outside.

The view of the place was itself evidence.' It might be very important for the jury to know the size of the room. Por instance, the defendant might have testified that the room was not more than ten feet long, and that the complainant, standing at one end, had struck with a stick the defendant, standing at the other. The jury may liave been shown a room twenty feet long. And the length of the room would tend to discredit defendant’s testimony, and would be material evidence whether the affray arose as defendant claimed.

It is not an answer to this argument to say that there could be no doubt as to the size of the room by those who were allowed to see it; because the principle is not that no false evidence shall be given in defendant’s absence, but it is that no evidence, true or false, shall be so given. Hence, if the size and appearance of the room tends in any way to bear upon the question of the defendant’s guilt or innocence, it is evidence, and must not be given to the jury in his absence. Bullet holes and splashes of blood might be in the ■room, and their position might bear strongly on the guilt or innocence of the prisoner. In this very case importance seems to have been attributed to the existence, or non-existence, of a bullet-hole at .a certain place in the room. If it would have been evidence to testify that there was such a bullet hole, then it was giving evidence to show to the jury the bullet hole itself.

But again, either by words, or by gestures, or by the mere fact that they were taken to a certain room by the officers and the member of the court, the jury were informed that that room was the place where the affray happened. Now, in the first place, this was unsworn evidence. No one stated to them under oath that that was the place of the affray. If on a trial any articles are to be exhibited to the jury, as, for instance, the clothes of a murdered man, the pistol .of the murderer, and the like; before they can be given in evidence proof must be given in respect to them. Some one must, on oath, ■identify them as being what they are alleged to be. Bat there was no identification of the room shown to the jury. Did auy one •.testify before the jury, “ This is the saloon of Hallenbeck Brothers?” If so, then that evidence was given in defendant’s absence; if not, -then the room was shown without identification by sworn testimony. But, in the next place, the defendant has had no opportunity of •denying that the room shown was that saloon. What knowledge has he as to the place to which the jury were taken ? They may have been taken to another room distant from the place of the .affray. He has no means of knowing where they went.

Suppose it were in dispute whether the affray occurred in one room or in another o£ a house. Can it be permitted that the jury shall be shown by two officers and one member of the court, in the defendant’s absence, such room as they may think best to exhibit, and that the defendant shall thus be kept in ignorance what room was so exhibited? For, unless the defendant is present, he cannot know what room was exhibited. Could the alleged clothes of a murdered man, or the alleged pistol of the murderer, be exhibited to a jury at some place outside of the court-room and in the absence of the defendant ? If the defendant had been present, he might have denied that the room exhibited was the place of the affray. He might have called witnesses to show this. But, as it is, he cannot, because he does not know what room was exhibited. True the judge who accompanied them said, on his return, that they had been taken to the saloon of Hallenbeck Brothers. But how did the defendant know what place the judge and the two officers believed to be that saloon ?

The Code of Criminal Procedure (§ 411) seems to intend that a judge of the court, or a person appointed for that purpose, should show the place. How it was supposed that a judge of the court would know the place where the crime is alleged to have been committed is not very clear. He might, perhaps, have a familiarity with the descriptions given by witnesses, so that, to his own satisfaction at least, he would be able to identify the ¡dace. But it will be seen that he (or the person appointed) is to show the place to the jury. Hence, from this word, it is evident, as was above stated, that the judge must convey to the jury, probably by words, his conviction that the place actually before them is that where the affray took place. The next section (412) probably is not to be construed to prevent this communication with the jury. And thus we have evidence given to them in the defendant’s absence, viz., that the place shown is that referred to by witnesses in describing the affray. Once more, whenever articles are exhibited to a jury, the inquiry is, or may be made, are they in the same condition as they were at the time of the alleged crime? How is the defendant, not permitted to see the place as it is shown to the jury, how is he to know whether the place, as exhibited, is just in the condition that it was at the time of the affray? He is shut out from the opportunity of giving evidence upon this point, because he is confined in the courtroom while some member of the court is showing the supposed place to the jury, and, therefore, does not know how the place now is. Reference is made to' the old system of “ views ” in England. (3 Blackstone’s Com., 358) But it is to be observed that these were granted in civil actions, and that they preceded the trial, as will more fully appear in 1 Burr, 252. And at page 256 of that same volume, it will be seen that, under the regulations of the court respecting them, there was to be an appearance at the view of a person on the part of the plaintiff and another on the part of the defendant, so that nothing was done in the absence of the parties or their representatives. We need not consider whether a proceeding of this kind might not take place on a civil trial. (Code Civil Pro., § 1659.) We have only to confine our attention to the present case.

The judgment should be reversed, and a new trial granted.

Bocees, J.:

(1.) The verdict of the jury was guilty of assault in the third degree. This verdict, in legal effect, acquitted the defendant of assault in the first degree, to wit: of an assault with intent to kill Gray, or to commit a felony upon his person. (Guenther v. The People, 24 N. Y., 100; The People v. Dowling, 84 id., 478.) And such verdict was authorized under section 444 of the Code of Criminal Procedure, which provides that “ upon an indictment for crime, consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior' thereto, or of an attempt to commit the crime.” It is urged that to uphold a conviction for a lesser degree of crime than that charged in the indictment, it must be for the identical act alleged therein. The law is this: That the accused cannot be convicted of any other character of offense than that charged against him in the indictment. (Dedim v. The People, 22 N. Y., 178; Keefe v. The People, 40 id., 348.) But he may be convicted of an inferior grade of the same offense charged, growing ou't of the same transaction counted on, accordingly as the case may be disclosed by the proof. As said in one of the cases cited : So far as the proof goes, it conforms to the allegations. Simply the whole indictment is not found, but the principle applies that it is enough to prove so much of the indictment as shows that the defendant has committed a substantial crime therein specified.” So here the defendant might be convicted of any degree of assault inferior to that charged in the indictment, the grade .of offense to be determined by the proof. An assault was charged with aggravation. Failing to prove the aggravation left the charge of assault still remaining, but of lesser degree of offense. To uphold a conviction for the inferior degree the aggravating circumstances charged will be deemed surplusage. It was, therefore, competent for the jury, under the indictment in this case, to convict the defendant of assault in the third degree.

(2.) It is, in the next place, urged that the Court of Oyer and Terminer, in which the indictment was found, had no jurisdiction over the offense of which the defendant was convicted, and that the conviction for that offense in the Court of Sessions was also without authority and void. This objection is based on section 56 of the Code of Criminal Procedure, which provides that., “ subject to the power of removal provided for in this chapter, Courts of Special Sessions, except in the city and county of New York and' the city of Albany, have in the first instance exclusive jurisdiction to hear and determine charges of 'misdemeanor committed within their respective counties, as follows : * * * 2. Assault in the third degree.” The limitation here declared applies to cases where the complaint or charge is made to the Court of Special Sessions in the first instance, that is, where this minor offense is that which is sought to be redressed ; and so, too, where the minor offense is sought to be redressed by indictment for it in the Oyer or Sessions (not-having been certified there under section 57 of the Code of Criminal Procedure), the subject would be, by the grand jury or by the court in giving directions to that body, turned over to the Court of Special Sessions, which court has exclusive jurisdiction of it on such -complaint in the first instance. But if the complaint be for a higher offense, and it be sustained by indictment, then the Oyer and Court of Sessions, in ease the indictment be found in the latter court or be sent there by the Oyer, would have jurisdiction; and section 444 of the Code of Criminal Procedure, which authorizes a conviction for an offense inferior in degree to that charged in the indictment, would apply. This construction harmonizes the two sections, 56 and 444, above cited, and gives effect to each, and it must be accepted, in preference to that construction, which would render either nugatory in whole or in part. It also recognizes as effective section 445 of the Code of Criminal Procedure, which declares that “ In all other cases ” — cases other than those specified in section 444 — “ the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment; ” and also section 35 of the Penal Code, which declares that “Upon the trial of an indictment, the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime.” (Id.) Nor, in this connection, should section 36 of the Penal Code be overlooked, which declares that “ Where the prisoner is acquitted or convicted upon an indictment for a crime consisting of different degrees, he cannot thereafter be indicted or tried for the same crime in any other degree.” (Id.) Thus in this case, unless the defendant may be held to punishment on the verdict here rendered, he must go free and unpunished for the offense of which he is convicted. Our conclusion, therefore, is that the verdict rendered in this case is not without authority, and void for want of jurisdiction in the Court of Sessions to receive it and make it the basis of punishment if upheld as provided by law (as to which see hereafter).

(3.) It appears that during the trial the defendant asked that the jury be permitted to view the place where the crime was charged to have been committed, as provided for in section 411 of the Code of Criminal Procedure. No objection on the part of the people was made, and the court decided to allow the jury to make view as was requested. The defendant thereupon requested that he, with his counsel, be allowed to accompany the jury. This request was denied, the judge holding that he would allow only the two officers, himself and the jury to go. Under such holding the view was made by the jury under the charge of two officers, sworn for the purpose, accompanied by the county judge. The point of exception, as made in the appeal book, is this, that the defendant with his counsel was not permitted to accompany the judge and jury. It may be conceded that the proceeding to make view was not strictly a proceeding in court. This is, I think, fairly inferable from the language of the section itself permitting it, as also from tlie following section 412. (See, also, sub. 2 of § 465.) But this conclusion does not reach and answer the objection urged. The proceeding was the obtaining of evidence in the case, and its presentation to the jury during the trial; hence, in effect, it was part of the trial. The view is referred to as “ evidence ” in the subdivision of section 465, above cited, and it was permitted as evidence for the consideration of the jury and to influence their action in the determination of the case, so it must be deemed “ evidence ” in the nature of things. (See Eastwood v. The People, 3 Park. Crim. R., on page, 53; also West v. Kiersted, 15 N. Y. Weekly Dig., 549.) On this point I differ from Shuler v. The State (105 Ind., 289), and the cases there cited in its support, and concur in those holding to the contrary, also there cited, to which latter cases attention is called. It must be held, as I think, that the making view by the jury was part of the trial in so far as it involved the right of the defendant to be present'when “evidence” is given or is obtained for use in the case. So the defendant had the right to be present when evidence was put in or laid before the jury touching his guilt or innocence. This is secured to him by law. (Code of Crim. Pro., § 356; also sub. 3 of sec. 8; see, also, sec. 6 of art. 1 of State Constitution.) But, irrespective of the provisions of the Code and Constitution above referred to, the right of the defendant to accompany the jury existed on general principles applicable to the trial of causes in the admission of evidence. The defendant might object to the introduction of a diagram as evidence, unless verified in its correctness and put before the jury in his presence or in open court; and this for the reason that he should have opportunity to show by proof that it was incorrect, defective or misleading. So here he should be allowed to be present when the judge or person appointed for the purpose pointed out the place to the jury, to the end that he might, if needful, correct any error in that regard by proof to be submitted to the jury, showing the error or, perchance, changes and alterations made subsequent to the transaction under investigation. Thus, according to the general rule of right applicable to the admission of evidence, the defendant .should be allowed to attend the jury when making view, not for the purpose of then and there raising objections or making any suggestions, but to the end that he might correct by. proof in court any misleading fact, if any should exist, growing out of the view by the jury. It follows that the court was in error in refusing to permit the defendant, with his counsel, to accompany the jury when making view of the place where the alleged offense was committed, and for this error the conviction and judgment must be reversed.

(4.) I am also of the opinion that there was error in the sentence. The sentence here pronounced was authorized by section 15 of the Penal Code, in ease there was no other punishment for this offense — assault in the third degree — specially prescribed by any other statutory provision in force at the time of the conviction and sentence; but there was another punishment for this offense prescribed by a statutory provision then in force, to wit, that prescribed by section 717 of the Code of Criminal Procedure. By this section the fine was limited to fifty dollars and the imprisonment to six months. That this section has special application to Courts of Special Sessions does not alter the fact that punishment for this offense — assault in the third degree — is specially prescribed by a statutory provision in force at the time, other than that declared in section 15. Section 717 should be held to control the sentence; and this, on a question of construction of statutes, should be so held for the sake of uniformity in the administration of justice. To permit the punishment for the same offense to differ in severity accordingly as the conviction should be had in different courts is repugnant to one’s sense of propriety and right. Perhaps this error might be corrected on appeal under section 543 of the Code of Criminal Procedure. I think otherwise, however, as the extent of punishment rests, within the limitation prescribed by law, with the trial court in its discretion. But as there must be a reversal of the conviction, for the reason above suggested, this point need not be here determined.

(5.) But I am of the opinion that the defendant must be discharged. The verdict in this case operated as an acquittal of the defendant of the higher offense charged in the indictment (People v. Darling, 84 N. Y., 478), and in case the judgment be reversed, and a new trial be granted, the defendant could not, as the law was there declared, be again tried and convicted of those higher offenses. As to them, autrefois acguit would be a good defense. This is decided in the case above cited, and the new trial could be only for the lesser offense, here assault in the third degree. But it is now provided by section 36 of the Penal Code that, “ where a prisoner is acquitted or convicted upon an indictment for a crime consisting of different degrees, he cannot thereafter be indicted or tried for the same crime in any other degree, nor for an attempt to commit the crime so charged, or any degree thereof.” Now here the defendant has been acquitted of the higher crimes charged in the indictment; hence he cannot, according to this section, be tried for those crimes “ in any other degree.” Ita est seripta. In this connection, section. 544 of the Code of Criminal Procedure should be noticed, which provides that “when a new trial is ordered, it shall proceed in all respects as if no trial had been had.” But here, according to section 36 of the Penal Code, above cited, a new trial should not be, indeed, cannot be, legally ordered. Section 544 applies to those cases where a new trial may .properly be ordered. In passing, it may be well to remark that section 464 of the Code of Criminal Procedure, which provides that “ the granting of a new trial places the parties in the same position as if no trial had been had,” etc., has no application to cases brought before this court on appeal. That section applies to new trials granted by the court in which the former trial was had, and the application for such new trial must be made before judgment, except in a case of sentence of death. (Code of Crirn. Pro., §§ 462 to 466, inclusive.) Thus it seems that section 36 of the Penal Code is left in full vigor, according to its text. It follows that the acquittal of the defendant of the higher offense charged in the indictment disposes of the case; a reversal being ordered, leaves nothing on the record against him for retrial.

In any event, the defendant could only be held to a retrial for assault in the third degree, even if section 36 of the Penal Code was out of the way, and effect should be claimed for section 544 of the Code of Criminal Procedure. It was so held in The People v. Gilmore (4 Cal., 376). The Criminal Code of the State of California provides, as does our section 544, above cited, that the granting of a new trial places the parties in the same position as if no trial had been had. It was urged in the case cited that this provision, a new trial being granted, opened the entire charges in the indictment for retrial, as well those as to which there had been an acquittal as those on which there had been a conviction. The court held against this contention. It held that such provision went only to the needs of the defendant, as against the conviction ; that if it should be construed to be more extensive in its application and effect, then it would be in conflict with the Constitution, which protects on$ from being twice put in jeopardy for the same offense; and, further, that an appeal or motion for a new trial would not operate as a voluntary waiver by the defendant of his constitutional protection as to those charges as to which he had been acquitted. To the same effect is the decision in The People v. Dowling (84 N. Y., 478, 483, 484). Judge Folgek says the waiver of constitutional protection, “unless it be expressly of the benefit of the verdict of acquittal, goes no further than the accused himself extends it. His application for a correction of the verdict is not to be taken as more extensive than his needs. He asks a correction of so much of the judgment as convicted him of guilt. He is not to be supposed to ask correction or reversal of so much of it as acquitted him of offense. He, therefore, waives his privilege as to one and keeps it as to the other * * * The waiver is construed to extend only to the precise thing concerning which the relief is sought.” In this case the defendant has expressly limited the relief sought, by liis notice of appeal, which goes only to the conviction of assault in the third degree, leaving the acquittal of the higher offense uncomplained of and untouched. Thus section 544 would be held to be unconstitutional and void, if, by its terms, it extended to the acquittal in this case. In no view of the case can the defendant be held to a retrial, save for an assault in the third degree.

I am, however, of the opinion that he is entitled to be discharged by force of section 36 of the Penal Code, above cited. As I conclude, the conviction and judgment should be reversed, and the defendant discharged.

Landon, J., was of the opinion that (a reversal being ordered) a new trial might be had.

Conviction and judgment reversed, and new trial granted on questions of law only.


author: Barnard, P. J.:

text:
    IRA LEO BAMBERGER, Plaintiff, v. CHARLES KAHN and Others, Defendants.

      Undertaking to procure an order of arrest — the right to recocer damages thereon is assignable.

    This action was brought by the plaintiff upon an undertaking given upon procuring an order for the arrest of one Hamburger, the complaint alleging an assignment by Hamburger of the undertaking, and of his claim to recover damages thereon, to the plaintiff. The costs proper had heen paid before the assignment.
    Held, that it was error to direct a dismissal of the complaint upon the ground that the cause of action was not assignable.
    The undertaking given upon procuring the arrest does not cover damages for a personal wrong or injury.
    Where an order of arrest has heen granted hy an officer having jurisdiction, the party obtaining it is not liable to an action for false imprisonment.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after an order had been made at the Kings County Circuit, directing that the complaint be dismissed.
    The action was brought upon an undertaking given to procure an order of arrest against one Ileineman Hamburger, who was alleged to have assigned the said undertaking and his claim thereon, to the plaintiff in this action.
    The answer, in addition to certain denials, alleged as a counterclaim and set-off, a judgment recovered against Hamburger previous to the commencement of the action in which he was arrested.

      The defendant moved for a dismissal of the complaint and for judgment on the pleadings upon three grounds, viz.: First. That there was no allegation that the defendant had failed to pay the costs and damages mentioned in the undertaking. Second. That the undertaking on which the action was brought, was not assignable. Third. That as there was no reply, the defendant was entitled to'judgment in his favor upon the counter-claim.
    The court, -with reference to the first ground for dismissal, allowed the plaintiff to amend his complaint, by inserting an allegation of failure by tire defendant Kahn, to pay the damages, it being conceded that the costs had been paid. The court then directed that the complaint be dismissed on the ground that the cause of action was not assignable, to which the plaintiff excepted, and on the plaintiff’s application, the court allowed the exceptions to be heard in the first instance at the General Term.

      Edward O. James, for the plaintiff.

      George 8. Hamlin and James S. lehmaier, for the defendants.
   Barnard, P. J.:

It is now settled that an order of arrest which has been granted by an officer having jurisdiction, and upon such officer obtaining jurisdiction of the subject-matter, protects parties from an action for false imprisonment. And this is the fact when the order has been subsequently vacated. (Marks v. Townsend, 97 N. Y., 590.) The undertaking to pay damages by reason of the arrest is not therefore to provide for a personal wrong or injury. It is a paper designed to cover taxable costs to be awarded in the action, and such other legitimate damages as flow from the arrest and are made necessary by it, such as counsel fees and expense in money to vacate the arrest and loss of time occasioned the arrested party in getting bail and in and about moving for his discharge. Such right of action is assignable under section 1910 of the Code of Civil Procedure. The assignment transferred the costs proper which have been paid. The extra expense and damage to the party were also transferred by it, and these have not been paid and are recoverable upon being proven in an action on the undertaking. The counter-claim set up by the defendants does not upon the record destroy the plaintiffs action. It may be an off-set or counter-claim and may destroy the plaintiff’s cause of action, but it is denied in the pleadings, and upon a new trial the plaintiff may prove under the pleadings that there is no such claim.

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

Pratt, J., concurred.

Exceptions sustained, and new trial granted, costs to abide event.


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    IRVING WRIGHT, Respondent, v. HARRIET E. ROBERTS, LEWIS ROBERTS, Appellants, JOHN FOLEY and Others, Respondents.

      Mechanics’ hens filed by a sub contractor under chap 342 of 18S5 — when the failure of the contractor to fully perform, his contract will not relieve the owner from liability to the sub-contractor.

    Urider the provisions of the mechanics' lien law, passed in 1835 (chap. 342 of 1885), an owner, upon whose land a building is being erected, pursuant to the terms of a contract made by such owner, is hable to a sub-contractor to the extent of “the price stipulated and agreed to be paid on such contract and remaining unpaid at the time of filing such lien.
    There is no provision in the act which, directly or inferentially, requires the contract to bo fully performed, as regards a lien for work and materials furnished and used by a contractor in the erection of the building, if it be shown that at the time the lien was filed a sum of money had been earned by the contractor, according to the agreed price, which exceeded all payments theretofore made by the owner in an amount sufficient to pay the claim for which the lien is filed

      Beckmann v, Pinkney (81 N. Y., 211) followed.
    Appeal from a judgment in favor of the plaintiff entered in Westchester county upon the trial of this action by the court without a jury.
    This action was brought to foreclose a mechanics’ lien under the provisions of chapter 342 of 1885. The plaintiffs were sub-contractors. The original contract was entered into by the defendant Harriet E. Roberts, the owner of the land, through her husband, the defendant Lewis, with one Frank Lyons.

      Charles Henry Phelps, for the appellants.

      J. S. Millard, for the respondent.
   Barnard, P. J.:

Roberts agreed with one Lyons to sell him a lot of land on Highland avenue, Tarrytown. The price of the lot was to be $1,000, but before Roberts was to give a title a house was to be completed and paid for by installments, by Roberts, to the extent of $4,000. When done, Roberts was to either take a mortgage for $5,000 or find a person to take the same, and was to deduct $1,000 for the land and convey. Subsequently the parties made a new agreement, involving an exchange of lands to be made at once. Lyons was to complete the house on the same terms as to payment, was to do other work on other houses, and the entire payment was to be $14,000, to be made by Roberts to Lyons, from Avhich was to be deducted the balance upon the exchange of lands, which was in fa.vor of Roberts, as the prices were fixed between the parties. By a still subseqAient agreement, Lyons gave up the right to purchase and was to complete the house on the original terms as to money payments. The present lienors did work and furnished materials on what is called the Paige house, being for and on account of Avork covered by the second agreement. Lyons went on under the three contracts until he and his partners failed. He did work upon the first and second contracts in excess of the difference between the exchange to the extent of $4,000, and $5,000 on the Paige house. The contract was not completed by Lyons, but the hens Avcre filed in due time after they put these materials in his work. The appellant urges that the right to a lien did not exist Avheu it was filed, because the contract was never finished. There have been many lien laAvs, with more or less varying provisions. Many decisions were made under them, and all are noAV repealed, and chapter 342, Laws of 1885, is a State laAV for the whole State. A lien is given when the oAvnor builds directly, or by a contract, and when the structure is put on with “the consent of the owner” and upon the “ lot, premises, parcel or farm ” upon which the building is to stand or does stand. The act contains this clause at the end of section 1: “ But in no case shall such OAvner be liable to pay, by reason of all the liens filed pursuant to this act, a greater sum than the price stipulated and agreed to be paid on such contract, and remaining unpaid at the time of filing such lien, or, in case there is no contract, than the amount of the value of such labor and material then remaining unpaid, except as hereinafter provided.”

In Heckmann v. Pinkney (81 N. Y , 211) the words of the lien law were that the total amount of the lien “ must not exceed the amount which the owner would be otherwise liable to pay at the time of the filing of the claim.” The court held that this clause was solely intended to limit the liability of the owner in the aggregate to the amount which he had contracted to pay, after deducting such payments as he had made before the filing of the lien. The present lien law limits the liability to the stipulated price of the contract and remaining unpaid at the filing of the lien. The evidence, as has been observed, shows that a sum of money had been earned according to the agreed price in excess of all payments to Lyons, and more than sufficient to pay the lienors.

There is no provision in the act which directly or inferentially requires the contract to be performed fully as against a lien for work and materials furnished by a contractor. If the plaintiff and the other lienors have put their property into the Paige house, and if at the agreed price, deducting all payments at the time of the lien, there is enough to pay them, the act of 1885 gives the lien.

The. judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.


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    In the Matter of the Petition of HUBERT O. THOMPSON, Commissioner, etc., for the Appointment of Commissioners of Appraisal, under Chapter 490 of 1883. Claim of CHARLES L. CAMMANN and Others.

      Appraisal of damages for land taken or affected by the construction of the aqueduct, under chapter 490 «71883 — the commissioners cannot award damages for an injury to a house or land not taken, caused by an explosion of dynamite on a lot owned by the city.

    Chapter 490 of 1883, providing for the vesting in the city and county of New York of the title to all parcels of land needed for the new aqueduct, charged the commissioners of appraisal with the duty “ to ascertain and appraise the compensation to be made to the owners and all persons interested in the real estate laid down on said maps, as proposed to be taken or affected, for the purposes indicated in this act. ” The maps indicating the lands to be taken, appropriated a parcel near the residence of the respondents. While the work was in progress an explosion of dynamite occurred, so near to the respondents residence as to very materially iniure it. The commissioners allowed this damage as compensation to be made for lands “affected” by the taking for the purpose of the aqueduct, though no lands of the respondents were taken or in any way affected by the work itself.

      Held, that the commissioners could not include these damages in the land damages, or as an incident to the condemnation of land.
    Appeal by the petitioner from an order entered in Westchester county awarding to the claimants, Charles A. Cammann and others, the sum of $1,355.71, for damages caused by the explosion of a compound of nitro-glycerine which had been stored upon land belonging to the city of New York,» for the purpose of being used in the construction of the aqueduct.
    On the trial before the commissioners of appraisal, appointed under the provisions of chapter 490 of 1883, the counsel for claimants offered to prove the damages occasioned to a building situated on land belonging to claimants by the explosion of dynamite stored on an adjacent lot owned by the city, and that it was incident to the construction of the aqueduct. This was objected to, and the decision was reserved. Thereafter the commissioners announced that they had decided, in relation to the offer, made by the counsel for complainants, “to prove that the damage sustained by this estate is $2,500 by reason of the explosion of this dynamite, the use of which was incident to the construction of the aqueduct,”-to admit the evidence, reserving, however, their ultimate decision on the question of the liability of the city. The evidence was, therefore, taken ^subject to the ultimate decision as to liability. Later on, referring to the objection of the counsel to the corporation, and its former decision to admit the evidence, the commissioner ruled as follows: “In relation to the claim filed by Charles L. Cammann and others, for damages caused by the explosion which occurred on the 2d of February, 1886, we have examined the evidence submitted and heard the arguments of counsel, and after giving the matter full consideration, have concluded that the claimant is entitled to recover compensation. It is not our intention to decide that the city of New York is to be held responsible for negligent acts of the contractors in the discharge of their duties under their respective contracts. The thirtieth section of the act provides that the work and materials called for by said contract shall be done and furnished under the direction and supervision, and subject to the inspection of the said acqueduct commission, their engineer, supervisors and inspectors. The eighteenth section provides that any owner or person interested in real estate contiguous to the aqueduct, and which may be affected by its construction, shall be entitled to compensation for damages resulting therefrom. It appears to us, therefore, that it was the manifest intention of the legislature that the owners of contiguous property should receive compensation for any damage to property affected by the construction of the aqueduct. We have for these reasons concluded that on the proofs which have been made in relation to this claim, the claimant should be allowed compensation for the damages caused by the explosion above referred to.”
    The report awarded to the estate the sum of $1,355.71 as “ just and equitable compensation” to be paid by the city of New York “ by reason of the damages to such contiguous real estate from the construction and maintenance of said aqueduct and its appurtenances.” From the order confirming this report the counsel to the corporation appealed.

      F. Henry laoombe, for the appellant.

      A ustin G. Fox and Fordham Morris, for Cammann and others, respondents.
   Barnard, P. J.:

By chapter 490 Laws of 1883, the city and county of New York became vested with the title in fee of all parcels of land needed for the new aqueduct, on filing the oaths of the commissioners of .appraisal. No question is made of the regularity of the proceedings,, .and both parties claim under the act as a valid act and under pro•ceedings regularly taken up to the filing of the oath in question which gave the fee.

By this act the commissioners were charged with the duty “ to .ascertain and appraise the compensation to be made to the owners, and all persons interested in the real estate laid down on said maps .as proposed to be taken or affected for the purposes indicated in this act.” (Chap. 490, Laws 1883, § 8.) The purpose was to build a new aqueduct, and for that purpose sites of drains, culverts, trenches and all appurtenances necessary for the work were taken (Secs. 3 and 4.) The maps indicating the lands appropriated a parcel near the residence of the appellants and while the work was progressing there was an explosion of dynamite so near it as to •injure it very materially. The commissioners have allowed this damage as compensation to be made for lands affected by the taking for the purpose of an aqueduct, though no lands of the appellants were taken or in any way affected by the work itself. The act was not intended to include possible accidents even if caused by negligence as part of land damages. The city of New York may be liable in an action for the injury, but these commissioners,.under their appointment of appraisal, could not include it as land damages, or as incident to the condemnation of land. The case is in no respect different from the ordinary taking of lands for condemnation, •only in the first act the title is declared to be vested before the damages are appraised. No different rule of damages is established. The land must be taken in fee and the damages for lands affected, .specified, did not include the injury caused by this explosion to lands not taken.

The order so far as .appealed from should, therefore, be reversed, ■with costs and disbursements.

Pratt, J., concurred ; Dykman, J., not sitting.

■Part of order appealed from reversed, with costs and disbursements


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THEUS TAYLOR, Appellant.

      Evidence — the rule requiring the attention of a witness to be called to the time and place of making a contradictory statement does not apply to statements contained in apaper signed by the witness

    Upon the trial of tlie defendant for manslaughter in the second degree it was proven, upon the part of the people, that the deceased, one Gilmore, solicited the defendant to shoot at a tin tomato can placed upon his (Gilmore’s) head; that the defendant, after having twice succeeded in hitting the can, and being urged by Gilmore to try once more, attempted to do so but failed, shooting Gilmore through the head and killing him. A witness, called by the people, who had testified to facts tending to show that the death of Gilmore was the result of the'defendant’s shot, was asked if Gilmore, at that shot, did not raise; his head and replied that he did not know. He was then asked if he did not so testify before the coroner’s jury and he replied that he did not. Hig examination before the coroner having been shown to him, and he having admitted the signature thereto to be his, his testimony, as given therein, was offered in evidence, but was not received, the court holding that the attention of the witness must be first called to anything in it.

      Held, that it was error to so rule.

      Bomertze v. East River National Bank (49 N. Y., 577).
    Appeal from a judgment of the Queens County Court of Oyer and Terminer, convicting the defendant of manslaughter in the second degree and sentencing him to imprisonment in the State’s prison for the term of one year and eight months.

      Augustus N. Weller and Benjamin W. JDoioning, for the appellant.

      John Fleming, district attorney, for the respondent.
   Barnard, P. J.:

The respondent was convicted of manslaughter m the second degree. It was proven, upon the part of the people, that the deceased, one Gilmore, solicited the respondent to shoot at a tin tomato can placed upon his (Gilmore’s) head. Taylor did so, and succeeded in perforating the can twice. He was urged by Gilmore-to try the experiment once more, and Gilmore was shot through. the head and killed. It appeared further in evidence that there had been several instances of the use of the pistol on the same day, involving risk to Gilmore if there had been any uncertain aim or unsteadiness of nerve, when there had been no evil result. Taylor was a celebrated shot, and was so known to be by Gihnore. They were warm friends, and on the day in question Gilmore seems to have been exhibiting Taylor’s accomplishments as an expert with the pistol. The people called one Abrams as a witness to the firing and consequent death of Gilmore on the last occasion. He testified to the facts tending to show the death of Gilmore as the result of the shot made by Taylor. He was asked if Gilmore, at the shot, did not raise his head, and replied that he did not know. He was then asked if he did not so testify before, the coroner’s jury, and replied that he did not. Ho was shown his examination before the coroner, and he testified that the signature to it was his. The testimony of the witness before the coroner was then offered and refused, on the ground that the attention of the witness must be first called to anything in it. This was erroneous. “ As to oral declarations, the attention of the witness must be called to the time and place, and particular language used, in order that he may recall the circumstances and make an intelligent answer; but as to written statements, this is unnecessary when the witness is shown the paper itself, and admits that he wrote or signed it and knows its contents.” (Romertze v. East River National Bank, 49 N. Y., 577.) The deposition was not returned, and the court held that it could not say that the appellant in the case might not have been prejudiced by its rejection.

It is not returned in this case, and the rule ought to be held more strongly in a criminal case in favor of a possible prejudice to the respondent by the rejection of the paper. The deposition was again offered at the close of the case, as an impeachment of the witness Abrams, and rejected. The error was not cured by the question put to the witness after the first rejection of the paper. Only a part of the question was answered, and that was immatei’ial to the subject of the inquiry in respect to a variance between the statements of the witness. A part of the question, supposed to be taken from the examination, did not tend to impeach the witness. There Was an added inquiry as to the attention of the appellant to the deceased, and the sole reply was that when the deceased was shot the accused was the first man to him.

The theory of the defense was that the appellant was not culpably negligent in firing the shot. If the deceased, at the instant of the shot, changed his position, th'e fact was a material one for the jury. The skill of the appellant may have been so infallible that it was not such an act as would support a verdict of manslaughter when the death was occasioned by the unexpected change of position of the deceased. Until the discrepancy can be seen, the error is an apparent one, when the appearances and legal inference may not be justified on a new trial.

Under the rule, however, there should be a new trial.

Pratt and Dykman, JJ., concurred.

Conviction and judgment reversed, and new trial granted.