author: Brady, J.

text:
    In the Matter of the Application of The J. F. Pease Furnace Co.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Contract—Evidence.
    In an action for breach of a contract to furnish a heater for plaintiff's, house the question is as to the fitness and capacity of the one rejected by him as insufficient, and evidence to show that similar heaters had proved amply sufficient to heat buildings as large as his is inadmissible.

      2. Same—Venue.
    Where the contract to furnish such heater was made in New York city, and the heater was to be used in that vicinity, the plaintiff should not be-required to take his witnesses to a place 300 miles distant to secure redress for a breach of the contract.
    Appeal from order denying motion to transfer the action from the city court of New York to this court, for the purpose of changing the venue to the county of Onondaga.
    The action was brought by Michael W. Devine against the J. F. Pease Furnace Co. to recover for breach of a contract to furnish a heater for his residence in Elizabeth, N. J.

      Brunnemer & Bennett, for app’lt; Martin & Smith, for resp’t.
   Brady, J.

The contract for a breach of which this action was-brought was made in this city by the plaintiff with the defendant’s general agent and at its branch office here. The heater which was to be furnished to the plaintiff was to be used ip the city of Elizabeth, N. J., which may be said to be one of the suburbs of the city of New York, the distance from the latter city is so short.

The contract having been thus made, and the heater thus located at Elizabeth, the witnesses as to its fitness are naturally persons connected with the two cities named, and some of the witnesses thought to be necessary for the defense, presumably under the circumstances disclosed, are not so. That of Peters, Hyde, Neil, Blair, Hood and Creelman are to show that heaters similar to the one to be furnished the plaintiff have proven amply sufficient to heat buildings as large as plaintiff’s, if properly managed.

This evidence does not seem to be admissible. The question is not what other heaters have done, but what the one in question has done. Indeed, it might be admitted that other and similar heaters have been successful, but the question would still be as to the fitness and capacity of the one rejected by the plaintiff. Besides that, it must be said that if any witnesses in the employment of the defendant are necessary, the defendant should be required to bring them here, the contract having been made here and the heater being a short distance from the city, and more accessible, therefore, for inspection. The removal of the action from the city court is, however, discretionary, Code, § 319, and we have not discovered in the record any evidence of the abuse of the discretion conferred by the statute.

Indeed, some reasons have been given to show that the plaintiff ought not to be required to take his witnesses from another state to a place three hundred miles distant to secure redress for a breach of contract made here, and to be wholly performed in a place within a comparatively short distance from this city.

The order for these reasons should be affirmed, with ten dollars costs and disbursements. Ordered

Van Brunt, P. J., and Daniels, J., concur..


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    Louisa Williams et al., Resp’ts, v. Samuel D. Folsom et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Bill op particulars—Fraudulent representations.
    The complaint alleged that defendants, who had certain property of plaintiffs for sale, hy false representations and concealments induced plaintiffs to make a contract of sale to the wife of one of the defendants for a price much less than could he obtained for it; that defendants circulated rumors intended to keep away purchasers and failed to bring plaintiffs in contact with persons to buy it, and that they had received offers which they concealed from plaintiffs. Held, that defendants were entitled to a bill of particulars of the names of the persons from whom it was expected to prove the receipt of such offers and among whom the rumors were circulated.
    Appeal from order denying motion for a bill of particulars.

      Edward C. Perkins, for app’lts; Cravath & Houston, for resp’ts.
   Daniels, J.

The plaintiffs were the owners of the property known as The Baltimore, situated on East Fortieth street in the city of New York. It was placed in the hands of the defendants, as real estate agents, for sale. And the complaint alleges that by means of fraudulent representations and concealments made by them to and from the plaintiff Louisa Williams, who acted as well for the other plaintiffs as for herself, she was induced to enter into a contract for the sale of the property to Jessie Folsom, the wife of one of the defendants, for a price much less than could have been obtained by the defendants for the property. It is then particularized in the complaint that they circulated rumora intended to keep away purchasers and render it difficult to sell the property ; that they failed to bring either of the plaintiffs in contact with persons to buy it, and purposely refrained from apprising the plaintiffs of persons who thought favorably of and who might have purchased the property. It is further alleged that they had received offers for the property not communicated to the plaintiffs, but which they concealed from them. And it is as to these allegations that the application was made for a bill of particulars.

It does not appear from the complaint otherwise than inferentially that the plaintiffs did in fact convey the property to Jessie Folsom. But as she is stated to have made a deed of it to Fred I. Stone within forty-eight hours after the contract of the plaintiffs had been signed, it is to be presumed that a proper conveyance had been made by them and that is in fact admitted by the answer. The sale to Stone is averred to have been made for the price of $13,000 in advance of that paid to the plaintiffs, a circumstance which, if it exists, indicates the probability that the defendants are chargeable with misconduct in obtaining the conveyance to Mrs. Folsom.

But to place them in the position where they may be able understandingly to meet all the plaintiffs’ charges, they are entitled to know who the persons are from whom it is expected to prove that they had received offers for the property which were withheld from the plaintiffs and among whom they circulated the rumors calculated to render the sale of the property difficult. This information will enable them to understand the case they may be expected to meet at the trial. And without it they will not be in that position. For it is not to be assumed that they already knew, or may infer, to whom these allegations are intended to refer, as long as that has been denied by the answer. Tilton v. Beecher, 59 N. Y., 177.

Where material allegations are obscure and indefinite, as these are, the settled practice is to reduce them to reasonable certainty by the service of a bill of particulars. Murray v. Mabie, 55 Hun, 38; 28 N. Y. State Rep., 308; Post Express Co. v. Adams, 55 Hun, 35 ; 28 N. Y. State Rep., 891; Cunard v. Francklyn, 111 N. Y., 511; 19 N. Y. State Rep., 641. And to the extent of supplying the defendants with the names of the persons in these allegations intended to be referred to, a bill of particulars should be served by the plaintiffs. In other respects the complaint seems to supply all the information concerning the grounds of the plaintiffs’ action which the defendants can reasonably claim or expect

The order should be reversed and an order entered requiring the service of these particulars within twenty days after notice of this decision. But as the motion was very much more extended, the costs should abide the result of the action.

Van Brunt, P. J., and Brady, J., concur.


author: Van Brunt, P. J.

text:
    James M. Horton, Resp’t, v. William H. Childs et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Contract—Breach—Damages.
    On the foreclosure of a purchase money mortgage the defendant counterclaimed damages sustained by a breach of the vendor of an agreement to remove certain railroad tracks which were upon the premises, by reason of which he claimed to have lost a sale of the property to one B. The court refused to find that defendant had entered into a contract with B. for the sale, the contract not having been entered into in good faith but for the purpose of proof of damages. Defendant testified ,to a deterioration in value, but was contradicted by his affidavits made at other times. Reid, that defendant was only entitled to nominal damages for the breach of the agreement.
    Appeal from judgment of foreclosure and sale. See 27 N. Y. State Rep., 377.

      S. C. Baldwin, for app’lts; J. M. Scribner, for resp’t.
   Van Brunt, P. J.

In the disposition of this appeal it is not necessary to consider the subjects which were treated of when the case was before this court upon the former appeal.

The record presented is so entirely different in its nature in one material point, that only one question need be considered or discussed.

Upon the previous appeal it had been found ‘by the learned judge who tried the cause that the defendant Bauer had entered into a contract of sale with one Borger for the premises in question for a sum of money considerably in advance of the purchase price given by Bauer to the plaintiff Horton; and that Borger had rejected the title because of the existence of incumbrances upon the property which Horton had agreed to remove.

Under these circumstances the court held’ that if there was a violation of Horton’s agreement, as there appeared to be, Bauer was entitled to recover damages.

As the case is now presented to the court however there is no finding that Bauer entered into this contract with Borger. Upon the contrary there is a refusal so to find, which refusal is undoubtedly based upon the conclusion of the learned judge who tried the case the second time that this contract was not entered into in good faith but was only gotten up for the purpose of proof of damages in favor of Bauer. And we think upon the examination of the evidence that this conclusion is amply supported by the proof. The circumstances of the entering into the contract, the limitation upon the counsel for the purchase in reference to the objections which he was to take to the completion of the title, and the whole atmosphere and surroundings of the case seem to lead to the belief that this was not a bona fide contract which in any way tended to establish the value of the property or form any foundation for damages because of the alleged breach by plaintiff of his agreement

Under these circumstances, there being no proof of damage, there was nothing upon which the court below could found a judgment that damage had been sustained except in a nominal amount.

It may be said that the defendant Bauer swore to the value of this property and that he was a competent witness upon that point, and that his evidence shows that the property had deteriorated in value.

But it seems to us that the evidence given by this witness was ■completely shattered by the production of affidavits wherein he had sworn when it was for his interest so to do that the property was worth the full amount which Borger had agreed to give; but when it is his interest to make the property of as little value as possible then his oath seems to be to that effect.

We cannot find, therefore, from the record that the defendant Bauer sustained any damage even if the plaintiff has technically violated his agreement in regard to the encroachment of the tracks of the Eighth Avenue Railroad on the property in question.

The judgment should be affirmed, with costs.

Daniels and O’Brien, JJ., concur.


text:
    Gustav Schnaier et al., Resp’ts, v. Konrad Schmidt et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Sale—Action fob purchase price mat be maintained by one firm AGAINST ANOTHER, ALTHOUGH ONE PARTY IS A PARTNER IN BOTH.
    An action to recover the purchase price of goods sold may be maintained by one firm against another, allhough one of the parties is a member of both firms. If the action cannot be sustained as one at law, it may be in equity, and the facts being set forth in the complaint and an answer served, the court may grant an appropriate judgment.
    '2. Same. »
    The fact that the action was tried before a jury will not change the rights or liabilities of the parties, where no objection was taken to that mode of trial.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      J. George Flammer, for app’lts; Abram Kling, for resp’ts.
   Daniels, J.

The action was brought to recover the price of certain inks alleged to have been sold and delivered by the plaintiffs’ firm to the defendants. In the complaint the defendant Schmidt was alleged to have been a partner in their business with the plaintiffs, as well as a partner with the other defendant as the purchasers of the inks in controversy. It was stated in the complaint that he declined being a party in the action as plaintiff, and for that reason had been made a defendant. The answer of the defendants denied the partnership, and alleged that the inks had been delivered to them to be sold on commission. When the trial commenced a motion was made on behalf of the defendants to dismiss the complaint on the ground that the action could not be maintained if Schmidt was a partner of the plaintiffs as well as with the other defendant. This motion was denied, and to the denial the defendants excepted. Upon the close of the plaintiffs’ case the motion was renewed, which was denied, and the defendants again excepted. And the appeals have been taken chiefly upon the ground of these exceptions.

In their support authorities from other states have been presented in which it has been held that an action at law cannot be maintained by one firm against another when one of the parties is a partner in each of the firms. But these authorities are not decisive of this appeal, for the reason that the proposition has been settled that where an action cannot be maintained in the legal forum, there a suit to settle the controversy and for the appropriate redress may be maintained in equity. Williams v. Kiernan, 25 Hun, 355, and cases there referred to.

And if it should be held that an action for goods sold and delivered as a legal action could not be maintained when one of the parties was a member of the two firms engaged in the sale and purchase, yet that would not defeat the plaintiffs’ action, for the facts were all set forth by the complaint. And as an answer was served, then by § 1207 of the Code of Civil Pro., the court has been authorized to permit the plaintiff to take any judgment consistent with the case made in the complaint and embraced within the issue. And if this complaint failed to state a cause of action at law, it did present by the facts alleged in it a cause of action in equity which the parties were entitled to have considered and determined in the action. The court was right, therefore, in its refusal to dismiss. And that the action was tried before the jury will not change the rights or liabilities of the parties to it, for no objection was taken by the defendants to that mode of trial. . If it had been, a trial of the action as an action in equity might then have been ordered, and the objection obviated. Neither has any objection to the mode of trial been presented in support of the appeals. And as the action contained the proper subject-matter of an action in equity, although it was tried before a jury, the court was right in refusing to dismiss the complaint at the close of the plaintiffs’ evidence. And that such an action may be maintained to recover the value of property sold and delivered by one firm to the other was held in Cole v. Reynolds, 18 N. Y., 74. And that a judgment for a specific sum of money was necessary to be awarded in the determination of the action in the plaintiffs’ favor formed no legal ground of objection to the right to maintain it. Murtha v. Curley, 90 N. Y., 372.

Neither did the circumstance of Schmidt being a member of each of the firms present a case for an accounting, for the cause of action set forth in the complaint was a separate and distinct transaction, not of a partnership nature requiring the settlement of partnership accounts. It was entirely separate, involving only an obligation for the payment of a specific sum of money, wholly disconnected with transactions between the members of the plaintiffs’ firm as partners. And for that reason an action could be maintained upon proof of the facts set forth in the complaint for the recovery of the amount owing on the purchase of the inks. Howard v. France, 43 N. Y., 593; Crater v. Bininger, 45 id., 545.

As the case was disclosed by the complaint, therefore, no substantial objection existed to the right of the plaintiffs to maintain it.

But on the part of the defendants it was denied that Schmidt ever became a member of the plaintiffs’ firm. And the evidence given by Schnaier as a witness left the fact in doubt whether Schmidt did in fact become a partner in the plaintiffs’ firm. If he had been such partner, then the plaintiffs were entitled to recover, if the inks were sold and delivered, as they were alleged, to the defendants’ firm, a-much larger sum than that for which the jury rendered their verdict. But on the part of the defendants it was claimed that Schmidt had purchased a machine for the plaintiffs and had advanced to them the sum of $300 at the request of Mr. Schnaier. And the jury were directed by the court if those were the facts, and he was not a partner, then this sum of $475 should be deducted from the price of the inks as that was given on behalf of the plaintiffs. And in their verdict, as the amount was stated, it appears that the jury must have made these deductions, and consequently found that Schmidt was not a member of the plaintiffs’ firm. And with that fact found in the action it could regularly be maintained as a legal action, triable as a matter of course before a jury.

The defendants, also, by way of defense, insisted that the inks were delivered to them to be sold on commission, and the court directed the jury if that were the fact that the plaintiffs could not recover. By their verdict they must consequently have found against the defendants as to this defense, and that the inks were, in point of fact, sold and delivered as that had been alleged by the plaintiffs to the defendants. And in that view no substantial ■objection arises in any form to the recovery secured in the action.

It was not important in any view to show the time when the defendant Lehrberger first learned that the plaintiffs claimed the goods to have been sold and not consigned. Neither was it to prove whether he knew before the bills were delivered that such a claim was made, nor to prove that he ever made any agreement or said to the plaintiffs that he would pay for the merchandise which had been sent at the prices stated in the bills. For the important issues in the case were whether the plaintiffs could maintain the action in the form in which they had brought it, and whether the inks were, in fact, sold or delivered to the defendants to be sold on commission. Upon these matters of fact none of the evidence excluded by the court could have had the least material bearing. The court excluded at first the inquiry whether this witness had any other conversation than had been stated with Mr. Schnaier at the time the check was made out for the $300. But after that the witness was permitted to go on and testify as to the talk which took place between himself and this member of the plaintiffs’ firm, thereby fully removing the ground of objection upon which the answer to the question was at first excluded. Hor was it of any importance to prove the course of trade indicating the manner in which inks were sold, for the right of the plaintiffs to maintain the action depended upon a contract not affected by any custom existing in the trade. It was equally unimportant also for the witness to answer whether he knew the quality of colored inks. All the evidence offered by the parties which appeared to be relevant to the grounds of controversy existing between them was received by the court. And as the jury have determined necessarily that Schmidt was not,a partner with the plaintiffs, and the goods were not delivered to the defendants to be sold on commission, their verdict upon that ground was entirely right, and both the judgment and order should be affirmed, with costs.

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


text:
    Gustav Schnaier et al., Resp’ts, v. Konrad Schmidt et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)
    Parties—Refusal of member of firm to join in- bringing action.
    Where a member of a firm refuses to join with the other members as plaintiffs in an action brought by such firm, and is therefore made a defendant, such refusal fully determines his relation to the controversy, and his right to become a plaintiff is lost by his own conduct, and cannot afterwards be insisted upon.
    Appeal from an order denying a motion to add the name of Konrad Schmidt as one of the plaintiffs in the action.

      J. George Flammer, for app’lts; Abram Kling, for resp’ts.
   Daniels, J.

The motion seems to have been made upon the The allegation contained in the plaintiffs’ complaint that Schmidt was a member of the plaintiffs’ firm. But, assuming that to be the fact, still the defendants had no right, after the trial of the action and its determination, to require that Schmidt should be made a party plaintiff in the suit. For it appeared by the complaint that he had refused to be joined with the other plaintiffs as a party, and on account of that refusal had been made a defendant. This practice has been fully provided for by § 448 of the Code of Civil Procedure, and made the action as to parties entirely regular. That refusal fully determined his relation to the controversy, and the action afterwards regularly progressed to a trial and judgment with him only as a defendant. His right to become a plaintiff had been lost by his own conduct, and it could not afterwards be insisted upon as it was in support of this motion. The order was right, and it should be affirmed, with ten dollars costs, and also the disbursements.

Van Brunt, P. J, concurs.


text:
    The Suburban Rapid Transit Co., App’lt, v. The Mayor, etc., of New York et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Eminent domain—Whebe land is taken fob public use eights, not ACTED UPON, OF A EAILEOAD COMPANY TO TAKE THE SAME LAND ABE LOST.
    Under chap. 606, Laws of 1875, and acts amendatory thereof, a railroad corporation was authorized to take lauds in the city óf New York necessary to its purposes. By chap. 522, Laws of 1884, the act relative to public parks and parade grounds, the same lands were taken by the city for these purposes. The railroad company had done nothing in the way of availing itself of the privileges granted by the act of 1875. Held, that by chap. 522, Laws 1884, the land was devoted to the public use, and that all rights of the railroad company were lost.
    Appeal from an interlocutory j udgment sustaining a demurrer to the plaintiff’s complaint, and from the order directing the entry of such judgment.

      Burton N. Harrison, for app’lt; Franklin Bartlett and David J.. Dean, for resp’ts.
   Daniels, J.

The action is somewhat unusual in its character, but substantially it has been brought to maintain the right of the plaintiff to appropriate so much of what is called St. Mary’s Park, in the northern part of the city of New York, as may be necessary for that purpose for the construction of its railway. The plaintiff is a corporation created under chap. 606 of the Laws of' 1875, and the acts amendatory thereof. And in its creation it became authorized to construct a railway from a point on what has been designated as its central route at or near 143d street to a railway to be connected with it in the centre of the Bronx river about 400 feet north of the Pelham avenue bridge. This right was acquired by the plaintiff in the year 1880. But no measures were then taken by it, as they were provided for in the act of 1875, to appropriate or acquire the title to so much of the park in controversy as should be required for the railway of the plaintiff. And by chap. 522 of the Laws of 1884, passed on the 14th of June of that year, this land, together with other lands described in the act, were then appropriated to the uses of public parks and parade grounds for the city of New York. Each parcel of land was minutely and clearly described, and this park consisted of the eighth parcel mentioned in § 1 of that act.. And it was thereby declared, as well as the other parcels, to be-respectively public places and public parks for public use and public purposes. There was no exception or reservation of any parcel of the land from these objects. Neither was the right of the plaintiff to acquire so much of the land as should be necessary for the construction of its railway through this park in any manner reserved or excepted. But by the language of the act. all the land within the lines particularly mentioned was devoted to these objects. And that had the effect of impressing with and appropriating this land to, the public uses mentioned in the statute. The law at once operated upon and took in itg, charge this property for the use and benefit of the public. And all that aftowards remained to complete its right was the ascertainment of its value in the manner provided for by the constitution .and the laws, and the payment of the compensation so ascertained to the persons entitled to receive it. This was quite fully considered in Matter of Department of Public Parks, 53 Hun, 281; 25 N. Y. State Rep., 9, and that conclusion was maintained, as it also was in Matter of Application of Mayor, etc., 99 N. Y., 569, 580, and Matter of Mayor, etc., 34 Hun, 441.

This devotion of the property to the public uses mentioned in the statute necessarily defeated the right previously acquired by the plaintiff to proceed and obtain the title to so much of this property as should be requisite for that purpose, for the construction of its railway, for that right created no interest in the land itself. • The most that it did was to empower the plaintiff to take the proceedings mentioned in the statute, and through them to acquire the right to so much of the property as was necessary for the railway. It was in no sense an interest in the land, but a privilege vested in the company to acquire the interest, as well as the title, by complying with and following the provisions of the law. And the plaintiff had wholly failed to take any proceedings under these provisions to obtain the title up to the time when the act of 1884 went into effect as a law. And that consequently defeated whatever preceding right to take proceedings existed in favor of the plaintiff. For where property has legally been appropriated to a public use of this description, necessarily including its entirety, there another party having the simple right to acquire title for another public use by virtue of legal proceedings is disabled from interfering and from acquiring any part of the land devoted to the preceding public use. This was very fully considered in Matter of City of Buffalo, 68 N. Y., 167, where that conclusion, upon principle as well as preceding authority, was deemed to be established and was followed.

There is no room for construing the act of 1884 to be subject to this preceding right of the plaintiff, for its language is so general and the description of the property so minute as to exclude ■every possibility of that construction. The property, and all of it within the designated lines, was erected into what is called St. Mary’s Park, and by no effect that can be given to the language ■employed can it be held to be subject to any exception in favor ■of the plaintiff. Its rights to proceed and acquire title in this property for its railway were necessarily ended and terminated by this appropriation of the property to the ' purposes of a park. And the consequence is that when the plaintiff afterwards, and in August, 1884, filed its petition and proceeded against the- preceding owners to obtain a right of way through this property, it had no power to make that proceeding effectual in its favor. Neither did the court to which the petition was addressed, for the reason that the land had previously been devoted to this other public use. And the final ■order, which was made in February, 1885, in its favor was inoperative and without jurisdiction as to the mayor, etc., to whose use the property had been appropriated by the act of 1884. In the proceedings taken under the act to ascertain the compensation which was payable for the property, an award was made to the plaintiff for the rights supposed to have been obtained in this, manner by it, amounting to the sum of $19,320, but which sum has not been received by the plaintiff. This award proceeded upon a very liberal construction of what had previously taken place at the instance of the plaintiff, and was without doubt intended to fully indemnify it for any possible expenditures which it had made in the course of and under its own proceedings. But neither proceeding had the effect of giving to the plaintiff the right to appropriate any part of the land of this park to the construction and operation of its railroad. The city had been in no-manner concluded by what had taken place and no substantial benefit had been derived through its proceedings by the plaintiff.

It has been contended that the amendment contained in chap. 421 of'the Laws of 1888 has evinced the intention of the legislature to be that the preceding right acquired by the plaintiff to obtain title to this land was not intended to be divested by the act of 1884. But this amendment warrants no such construction of the act of 1884. All that it has further provided for is the power to acquire the title to railway lands that may form a portion of either one of the parks mentioned in the act of 1884, and by its language appears to contemplate the existence of vested rights in the railroad companies in this manner referred to. The-plaintiff had acquired no .such right to the property in this park as entitled it to the least protection under this amendment. And that the city may have proceeded upon any different construction in reference to railway interests in other parks will not change the language or effect of either act, but they must still be construed to carry into effect the intention which has been expressed by the language employed in framing the law. And upon no occasion and in no part of the law has it been provided, either expressly or by implication, that a mere inchoate right, which is all that was acquired by the plaintiff by the laying out of the line of its road, was intended to be preserved or maintained by these acts. The evidence of intention, on the contrary, is that which has already been mentioned,.the appropriation exclusively of this-property to the uses and purposes of a public park.

The counsel for the plaintiff in the elaborate argument which has been presented has divided and subdivided the points through which it was expected to maintain the plaintiff’s preemptive right to this property. It is not necessary to follow this division more minutely than has already been done. For the construction required under the authorities to be given to the acts in question is such as to put out of the power of the plaintiff, after their enactment, to acquire any interest in this land for the uses of its railway. It is not, of course, intended to be held that the proceedings for the appraisement of the compensation to be allowed and their confirmation should be attended with any adverse effect to the plaintiff, for whatever rights it at any time acquired have been preserved by the final order of confirmation. The difficulty in the way of the plaintiff is that its power to acquire the land was necessarily divested by the passage of the act of 1884. _ It is undoubtedly a serious embarrassment to the company, having no power by its own act to change the line of its railway, that the law should in this manner have interfered with the promotion of the enterprise. But that was a matter addressed solely to the legislature, which had the constitutional authority in this manner to prevent the plaintiff from acquiring any title to lands within the bounds of this park. It is not, however, without remedy, for it may still appeal to the legislature for such a rectification or removal of the difficulty as will permit the plaintiff still to construct and operate its railway, even though that may be done by passing around instead of through the land devoted to this park. There seems to be no ground upon which the court can, or ought to, interfere in the plaintiff’s behalf, and the judgment and order should be affirmed, with costs.

Van Brunt, P. J., concurs.


author: Lawrence, J. Van Brunt, P. J.

text:
    The People ex rel. Isaac P. Martin v. Edward Gilon et al.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Municipal corporations—Assessments.
    Section 920 of the consolidation act does not require that there shall be separate assessments for the improvements mentioned until the whole amount has been laid, but only gives the owner of property twenty years in which to pay such assessment in yearly instalments.
    2. Same—Certiorari.
    A certiorari to review an assessment brought before the board of revision has acted thereon is premature.
    Certiorari to review the proceedings of the board of assessors of the city of New York in levying an assessment upon the relator’s property, etc.

      James A. Deering, for relator; Wm. H. Clark and George L. Sterling, for resp’ts.
   Lawrence, J.

We do not think that the proper construction of § 920 of the consolidation act requires that there should be separate assessments for the improvements mentioned in that act until the whole amount of the assessment has been laid.

The true construction of that section is, that where an assessment has been levied upon property for any of the purposes specified in o said section, the party assessed shall be allowed to pay in yearly instalments five per cent of the whole amount assessed until the same has been wholly paid. In other words, the statute allows the owner of the property twenty years within which to make such payment

The construction contended for by the counsel for the relator would involve the making of twenty different assessments of five per cent each, which would not only materially increase the burthen imposed upon the individual, but also seriously complicate the proceedings before the assessors, without any corresponding benefit to the owner.

If this view is right, then it necessarily follows that the assessors had jurisdiction to make the assessment of which the relator complains.

The cases cited by the learned counsel for the relator proceed upon the ground that the assessors never acquired jurisdiction, and are therefore inapplicable.

Furthermore, as it is within the power of the board of revision and correction of assessment lists to review and correct all assessment lists, other than those made by commissioners appointed by a court of justice, the certiorari in this case was prematurely obtained. Consolidation Act, § 867. It must be assumed that the board will do its duty and correct any errors in the assessment list, and until they have passed upon the alleged errors of the assessors there is no final decision which we can review.

This point has been so recently decided by this court in the case of The People ex rel. Stevenson v. Gilon et al., that it is unnecessary to pursue it further. See 36 N. Y. State Rep., 1004.

The writ must therefore be dismissed, with costs.

Van Brunt, P. J.

Concur on last ground stated without expressing .any opinion as to the first.

Daniels, J., concurs.


text:
    In the Matter of the Will of Emily L. DeRussy, Deceased.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891)

    1. Surrogate’s court—A referee cannot be appointed by the surrogate UPON HIS OWN MOTION TO EXAMINE AN ACCOUNT FILED UPON AN INTERMEDIATE ACCOUNTING.
    Where an executor, pursuant to an order of a surrogate, made under sub. 4, § 2723, Code Civil Procedure, flies an intermediate account, which is not contested, the surrogate has no power to appoint, of his own motion, a referee to examine such account.
    2. Same—Object of an intermediate account.
    The object of an intermediate account is to show the condition of the estate, and the case is not within § 2546, Code Civil Procedure, providing for a reference to examine an account rendered.
    Appeal from an order of the surrogate of the county of New York, denying a motion of the executor to vacate an order appointing a referee to examine an intermediate account which the executor had filed under an order directing that to be done.

      Edward C. James, for app’lt; Abram Kling, for resp’t.
   Daniels, J.

The account affected by the order was filed by the executor pursuant to an order of the surrogate, made under subd. 4 of § 2723 of the Code of Civil Procedure. That empowered the surrogate by an order to require an intermediate account to be rendered when eighteen months have elapsed since the letters were issued, and no special proceedings were pending for a judicial settlement of the accounts of the executor. And the facts in this case brought it within this provision of the Code.

The executor in compliance with the order of the surrogate filed his account in detail, commencing with the 3rd of May, 1881, and ending on the last day of December, 1889. It was verified by the oath of the executor, and stated the receipts and expenditures of the executor, showing a balance in his hands amounting to the sum of $954.54, no objection to its correctness was made by anyone, and no person was cited or ordered to appear, either to examine or secure its settlement But the surrogate at his own instance directed its examination by a referee. And the appeal depends upon the question whether he was vested with that authority.

It was no part of the proceeding, as that has been authorized, to investigate or settle the account, and no parties were before the surrogate to be affected in any manner by its examination. And if it should be made, it would be attended with no effect whatever, and would conclude no one, but it would be a wholly useless proceeding, which the Code has not provided for. The object of the account is to disclose “ the acts of the person accounting, and the condition of the estate, or fund in his hands, and not made the subject of a judicial settlement.” Subd. 9 of § 2514, Code of Civ. Pro. The last clause of the subdivision discloses the fact that it is no part of the accounting, to obtain a settlement of the account For it is only where a proceeding for the settlement is not pending that the intermediate account may be ordered. And the condition of the estate is expected to appear from the account itself. That is its object, and when the account is placed on file, that object has been accomplished. And it can be made no more effectual by an examination and report upon the account by a referee. The executor is bound to file a complete account, and when that has been done all the information has been obtained which the law has intended by this proceeding to secure. It is to create a record of the condition of the estate, and when that has been made the power conferred has been executed.

The case is not within § 2546 of the Code, which expressly provides for a reference to examine an account rendered. For that power has been delegated to be used in a special proceeding. And that proceeding is to be commenced in the surrogate’s court by a citation, when not otherwise specially prescribed by law. There is no special provision designating the order for the intermediate account to be such a special proceeding. And as no citation could be issued to obtain the account, but it was to be secured by an order alone, it follows that the order for, and the rendition of the account, cannot be held to be a special proceeding within its definition as that has been given by this section.

The account may be consolidated with an account filed on the petition of a creditor, next of kin, or other party in interest. And when not so consolidated may be contested .by any party in interest, Code, § 2730. But no provision exists for a contest on the part of the surrogate. The case differs entirely from Buchan v. Rintoul, 70 N. Y., 1, which included an account rendered on the application of a party interested in obtaining and investigating it. And the act under which the examination, through the intervention of a reference, then took place, has since been repealed.

It is a significant omission that no authority has been provided for the examination of an intermediate account of an executor or administrator by means of a reference, while that has been specially provided for in the annual accounts of general guardians, Code, § 2844, and which, by § 2341, has been made applicable to the accounts of committees of lunatics and other persons of unsound mind. The express creation of the power for these other cases indicates the existence of the intention that, without specifically creating it, the power would not exist. And that it does not exist over an intermediate account obtained under an order, as this account was, is the clear effect of the provisions relating to that class of accounts. The parties in interest may contest or investigate the account. But until they shall be brought in, or otherwise appear, the power vested in the surrogate will be exhausted by obtaining and filing a proper account. The object of the law will then be attained, and that is to show by the account the condition of the estate.

The order should be reversed, and the order directing the reference vacated.

Lawrence, J., concurs; Yan Brunt, P. J., concurs in result.


text:
    Nathaniel Sleeman, App’lt, v. Lewis Hotchkiss et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Pleading—Amendment—Pabties.
    An order refusing leave to amend a complaint by striking out the names and all allegations relating exclusively to a defendant who has died and one as against whom the action has been discontinued, does not injuriously affect the plaintiff where such allegations are not connected with the other defendants and do not affect their liability.
    Appeal from an order denying a motion for leave to amend the complaint.

      Raphael J. Moses, Jr., for app’lt; E. Louis Lowe and Henry Major, for resp’ts.
   Daniels, J.

The complaint has set forth with all necessary detail the terms of a contract made with the defendant Hotchkiss, for the sale and transfer of shares of stock in the National Gras Saving Company, which remains mainly unperformed. The defendant Hotchkiss is since deceased, and no personal representative for his estate has been appointed. The National Gras Saving Company was also made a defendant in the action and answered the complaint, but it has since been discontinued as to that "defendant and an order to that effect has been entered. By the motion which has been denied by the order from which the appeal has been taken, the plaintiff asked leave to strike out the names of these two defendants from the summons and complaint, and also the allegations relating exclusively to them. A very considerable part of the complaint is devoted to allegations concerning the contracts with the defendant Hotchkiss and his violation of their terms

But neither these allegations nor those relating to the National Gras Saving Company in any manner tend to the exoneration of the other defendants from the liability charged against them. And striking them out of the complaint, and the names of those two defendants from the summons and complaint, would render the action no more complete or effectual against the other defendants than it already is. If there is a cause of action set forth against them, it would in no respect be improved or advanced by omitting the names and the allegations against Hotchkiss and the gas company. If there would be a cause of action against the other defendants without the names of these two defendants, and the allegations concerning them, that causé of action is now in the complaint, capable of being enforced as the complaint has already been framed. Adding these other parties and making the allegations which have been made concerning them, in no possible way can affect that cause of action. It is no objection to the complaint that it has stated too much if a cause of action, has been inserted in it. To that extent the action may be maintained even if other persons have been named as parties, and allegations have been made to set forth their liability. It would accordingly not change or benefit the plaintiff’s action to strike out these two names and the allegations made to charge the parties represented by them ; whether they are in or out of the complaint, the effect as to the other defendants will be the same. The plaintiff has, therefore, suffered no injury by the denial of the motion. If in any possible view it may become important to show that the gas company is out of the case, that can be done by producing the order of discontinuance. And proof of the facts that the defendant Hotchkiss was not served with the summons, and did not appear in the action, and is now deceased, will most effectually exclude him from it, and deprive the allegations intended to affect him of all possible importance. These two parties, and the allegations concerning them, will then be as completely out of the action as they would be if they were with the utmost particularity stricken from the summons and complaint; no practicable end would be attained by the motion even if it had proved successful.

It has been urged that this motion was sanctioned when the plaintiff was permitted to withdraw a juror at the circuit and given leave to apply for an amendment of the complaint. But it does not appear from anything in the order that these amendments were intended by the court. It is most probable that they were not For it is not the practice to allow a juror to be withdrawn to permit the plaintiff to move for an amendment of the complaint of a merely formal nature. The probability is that the justice presiding at that trial considered the complaint so defective as to present no cause of action, and to remove that defect suspended the trial to afford the plaintiff the opportunity to move to amend and avoid that defect. The order as it has been entered supplies no support to this motion. There was no ground for the amendments which the plaintiff asked for liberty to make.

And the order should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Lawrence, J., concur.


text:
    The People, Resp’ts, v. William McElroy et al., App’lts.

      Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    'Criminal law—Who are principals in a felony.
    It is sufficient to constitute one a principal in a felony that he was present while the other principal committed the crime, and that as soon as the latter declared that he had possession of the object of the crime that both fled and hid together in a closet.
    Appeal from judgment of general sessions, convicting the appellants of robbery in the first degree.

      Purdy & McLaughlin, for app’lts; H. B. B. Stapler, for resp’ts.
   Van Brunt, P. J.

The appellants were indicted for robbery in the first degree, which charged them jointly with the taking by violence of a watch worth twenty-three dollars from the person of one William Cavanagh. They were jointly tried and convicted and now appeal from the judgment against them.

No questions are raised upon this appeal except that the evidence was not sufficient to warrant a verdict against either defendant because of its unsatisfactory character so far as the complaint was concerned; and that the evidence was not sufficient to warrant a verdict against McElroy; and that even taking all the evidence offered by the prosecution as true, it had no tendency to prove that he did anything to aid or abet in the robbery, or that he counselled, commanded or induced Ryan to commit the crime. The facts of the case as they appear by the record seem to be correctly stated by the district attorney in his brief, as follows: “ On the morning of March 5, 1890, at about 7 o’clock, William Cavanagh, the complainant, was returning from an all-night vigil by the sick-bed of his brother-in-law, who lived in Thirty-second street. As he passed down Seventh avenue he stopped at a saloon on the southwest corner of 27th street and 7th avenue, at the door of which saloon a woman accosted him and asked him to give her a glass of beer. At this time complainant saw the defendants, Ryan and McElroy, together in the street.

“ The woman and the complainant went into the saloon and withdrew into a little room used for ‘ ladies,’ where they remained drinking from a quarter to half an hour, when the woman disappeared, leaving the complainant alone; he then went out of the little room into the saloon, and as he did so saw the defendants together in a corner of the saloon. As the complainant was about leaving the saloon by the Twenty-seventh street door, the defendant Ryan ‘grabbed’ the complainant by the collar saying, ‘I ■ want that watch,’ and held him up against the jamb of the door, and took the watch from his person. While this was being done by- defendant Ryan, the defendant McElroy was standing right behind defendant Ryan. Ryan remarking as he took the watch from complainant, 11'got it; ’ the defendants then ‘skipped away’ and hid together in a closet in the saloon; the complainant then went back into the saloon and told the proprietor that his watch had been taken by ‘ these men,’ and that ‘ they ’ were in his place. The proprietor told complainant to keep still and he would get him his watch.

“ The watch was in Ryan’s possession, and was given up by him in the saloon and returned to the complainant in the saloon; when the proprietor of the saloon learned that a robbery had been committed defendants Ryan and McElroy were together in the saloon, and remained in the saloon together for five or ten minutes after the complainant had left; the defendants had a drink together before they went out; the complainant went to the station-house before he went to his home; he reached the station-house about nine o’clock, and Officer Logan at once set out to arrest the defendants, and found them about two o’clock of the same day together at a liquor store, where he arrested them. The next morning the complainant appeared against them at court and identified the defendants ‘ without hesitation.’ ”

At the conclusion of the testimony the counsel for the defendants asked the court to advise the jury to acquit McElroy, which the court declined to do. No exception was taken to this ruling.

It is claimed upon the part of appellants that as the complainant was drunk at the time he was robbed it was not sufficient to convict upon his evidence alone.

It is admitted that he lost his watch, and that Ryan had it, but it seems to be urged that because of his immoral conduct in stopping at this saloon to carouse with a strange woman whom he had picked up at seven o’clock in the morning, he was a proper subject for the operations of these desperadoes.

It is further urged that as from the complainant’s evidence alone it appears that violence was used by Ryan in getting possession of the watch, and that as he was drunk, no reliance should be placed upon his testimony and the defendants should have been acquitted.

Some point is made in regard to the want of statement upon, the part of the complainant that Ryan had taken his watch when he first made his complaint to the keeper of the saloon that he had lost his watch, and that it was only because of the suggestion of the bar-keeper that it was ascertained that Ryan had it. But the fact was undisputed that Ryan did have the watch, and that it was returned to the complainant, whether from the hands of the proprietor of the saloon, or from Ryan himself is not particularly material.

These two defendants were undoubtedly in the saloon at the time this watch was lost, and also at the time _ it was returned. The circumstances of the case clearly corroborate the statement of the complainant, and there is not the slightest particle of evidence tending to contradict anything he said as to the manner in which the watch was lost; amd his subsequent action in going to the police station seems to indicate certainly a belief upon his part that the watch had been taken under the circumstances testified to by him. If his story was true it is clear that the watch was taken from him by Ryan through violence which complies with the definition of robbery.

As to the sufficiency of the evidence connecting McElroy with the offense it seems to be sufficient to say that these two men were together, that while Ryan was committing the offense McElroy was standing by giving him the assistance of his presence, and as soon as Ryan declared that he had got it they both fled and hid together in a closet, showing a knowledge on the part of McElroy of what Ryan intended to do, and that he was present ready to afford such assistance as might be necessary in order to accomplish the common purpose.

It has long been settled that to constitute one a principal in felony he must be present at the commission of it; but that he need not be so near as to be an eye and ear witness of the criminal act; that his presence may be constructive, and that constructive presence is made out when it is shown that he acted with another in the pursuance of a common design ; that he acted at one and the same time for the fulfilment of the same preconcerted end, and was so situated as to be able to give aid to his associate with a view to insure the success of the common enterprise. McCarney v. People, 83 N. Y., 413. But this aid and participation need not amount to more than watching to prevent a surprise to his companions or remaining at a convenient distance to favor their escape, or being in a situation to render assistance if necessary, the knowledge of which would be calculated to inspire confidence in his comrade. Persons are said to be aiding and abetting the party committing a crime if by their presence they encouraged him in the commission of it.

It seems to be clear that the presence of McElroy under the circumstances was an encouragement and intended to be an encouragement to Ryan; that he was there intending to afford assistance if necessary; that he was there knowing what Ryan intended to do, and as soon as he announced that he succeeded in doing it, they both left together. They had been confederating together before the commission of the crime, confederating together at the time of the commission of the crime and confederating together subsequent to the commission of the crime.

The attention of the court is directed to the fact that the jury accompanied their verdipt against McElroy with a recommendation for mercy. But this in no way showed that the jury under the instructions of the court had any doubt in regard to the guilt of McElroy. They probably thought because he did not actually participate in the use of violence that he was entitled to more consideration than the desperado who had actually done the work.

The evidence seems to have been amply sufficient to justify the jury in their conclusion that McElroy was an associate of Ryan, and that Ryan obtained possession of this watch by violence.

The judgment should be affirmed.

Daniels, J., concurs.


text:
    Utley Hare, Resp’t, v. Michael Mahony, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Verdict—Appeal.
    Where the only evidence as to the terms of the contract in suit is that of the parties, each contradicting the other, the verdict of the jury is conclusive on that point and cannot be disturbed on appeal.
    3. Master and servant—Discharge—Evidence.
    In an action for wrongful discharge from employment, where the defendant has testified as to the terms of the contract of employment, it is proper on cross-examination to call his attention to allegations in his verified answer in conflict therewith, and it is no ground of objection thereto that the answer was verified by advice of counsel.
    3. Same.
    In such an action, where the defendant attempts to show that plaintiff was incompetent and consequently he was justified in discharging him, the plaintiff has a right to show by people who knew what his qualifications were that he was capable of performing such work satisfactorily.
    4. Trial—Striking out evidence.
    It is entirely optional with the court to strike out an irresponsive answer where the answer is pertinent in itself.
    Appeal from judgment entered upon verdict and from order •denying motion for new trial.

      Orin Gamble, for app’lt; G. S. Hastings, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for the breach of a contract of employment

The complaint alleged that in August, 1888, the plaintiff was •employed by the defendant as the manager of the branch of his business in Hew York for the period of one year at an annual salary of $2,000. The plaintiff entered upon the employment and faithfully discharged the duties thereof, but without cause was wrongfully discharged in December, 1888; that thereafter he tendered his services and was ready to perform the agreement on his part, but such services were refused, and damages for such wrongful discharge were claimed.

The answer admitted the employment, but alleged that defendant took the plaintiff on trial and that the employment was in any •event to terminate on the 1st of April, 1889, and that it was conditioned upon the work and business being conducted by the plaintiff in a manner satisfactory to the defendant, and that by the terms of the contract he had a right to discharge the plaintiff at any time,, and that he discharged the plaintiff because his services were not satisfactory.

The only witnesses examined in regard to the contract itself were the plaintiff and defendant. Other witnesses were examined in regard to the services which were rendered by thé plaintiff, and .the defendant attempted to show that the plaintiff was incapable of carrying out his part of the contract because of his incompetency and want of knowledge of the business.

The court in submitting the case to the jury called their attention to the claims made by the parties and correctly charged as to the burden of proof, and no exception was taken to any part of the charge.

The appellant in his points seems to present the case on this-appeal as though this court were the jury, and that upon this conflict of evidence the verdict of the jury would be set aside because in his judgment they should have found otherwise.

The difficulty with this position is that the verdict of the jury is conclusive upon the question of fact unless it is against the weight of evidence, and there is nothing in the case at bar as far as the terms of the contract are concerned except the evidence of the plaintiff and the defendant, each contradicting the other, and it is apparent that the jury believed the plaintiff, as they had a right to do. This court cannot review the verdict of the jury, as. it is conclusive, as already stated.

Most of the questions of law attempted to be presented upon the points are upon the assumption that the defendant’s version of the nature and character of the contract was the true one, whereas the jury have expressly found to the contrary.

Our attention is called to one or two exceptions to evidence-which it may be necessary and proper to consider.

During the course of the cross-examination of the defendant his attention was called to the allegations in the answer, which it was, claimed were in conflict with the evidence which he gave upon the stand. This method of examination was objected to and an exception taken, and it is claimed to be error because, as the appellant’s counsel states, the allegation in the answer had no necessary connection with the contract with the plaintiff, when the very allegation to which attention was called was an allegation of what the contract with the plaintiff was. The learned counsel says the defendant-verified the answer by advice of counsel, but he did not thereby state his specific understanding of the contract.

Certainly if the defendant verified an answer which was untrue, by advice of counsel, it was a matter which would naturally tend to affect his credibility; and if he did not attempt to state his specific understanding of the contract by these allegations in the answer, it is impossible to imagine for what purpose they were put there. We cannot conceive how advice of counsel can shield a party where erroneous allegations of fact are contained in a pleading; nor what office an allegation in a pleading conserves unless it is the statement of a claim or defense as the party swearing to the pleading understands it.

Exception was taken to some evidence of one of the witnesses who was examined on the part of the plaintiff. The witness had employed the plaintiff in the same line of business in which the defendant employed him, and was asked whether the work had been satisfactory or unsatisfactory, and his answer was that it was perfectly satisfactory.

Attempts had been made on the part of the defendant to show that the plaintiff was incompetent and did not know anything about his business, and consequently he was justified in discharging him; and in reply to this evidence the plaintiff had a right to show by people who knew what his qualifications were that he was capable of performing such work satisfactorily.

The refusal to strike out the plaintiff’s evidence because not responsive to the question asked, is no ground of error. It was ■entirely optional with the court to strike out an irresponsive answer. The answer was pertinent' in itself and merely because it was irresponsive gave no absolute right upon the part of the defendant to have it expunged from the record.

There seems to be nothing whatever in this case to justify a reversal; and the judgment and order appealed from should, be affirmed, with costs.

Daniels, J., concurs.


author: Van Brunt, P. J. Daniels, J.

text:
    The People, Resp’ts, v. Michael Fleming, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    ■Criminal law—Tbial—Comments of the coubt upon the evidence.
    Where no exceptions to the charge were taken by the defendant upon the trial of an indictment for grand larceny, Held, that the court would not reverse the conviction because the trial judge said to the jury that he did not see that the direct evidence of one of the People’s witnesses had been shaken upon cross-examination, and further that unless that witness had committed perjury it seemed to the court that there should be very little hesitation upon the part of the juiy in coming to the conclusion that the crime of larceny had been committed.
    Appeal from judgment of the court of general sessions convicting defendant of grand larceny.

      Purdy & McLaughlin, for app’lt; B. S. Weeks, for resp’ts.
   Van Brunt, P. J.

The evidence upon the part of the People ■showed that on the 4th of September, 1890, the defendant got on a crowded street car and took from the pocket of a gentleman sitting on the dashboard of the car a gold watch, which he passed from his right to his left hand; that he was then seized by one of the passengers, but broke away and ran, but was afterwards overtaken, and after a struggle was turned over to the custody of an officer. The watch in the meantime had been picked up by the -conductor and returned to the owner.

. At the close of the People's case a motion was made that the jury be instructed to acquit, on the ground that no sufficient evidence had been adduced to make out a case, which motion was denied.

The defendant then went on the stand, denied the larceny, but admitted being on the car at the time, and alleged that he was ■seized by one of the passengers, who had been a witness for the prosecution, dragged off the car and accused of taking the watch ; that he did not like the idea, felt indignant, not grossly and highly indignant, but he was innocent of it, but he felt so indignant that he wanted to run away, and did run; that he had no particular cause for running except his indignation; that the passenger ■caught, him again, and without any apparent reason tore the sleeve ■off his coat, although the defendant did not try to get away, and that his indignation after the tearing of the coat was so great that he kept on running until the passenger caught him again, and lie-tried this several times, only being able to run a few feet at a time, because of the passenger who clung to him; that he attempted to run away because he knew he' was being unjustly accused to-escape being arrested.

The defendant further stated that the man who is running away is generally taken to be the thief, but, notwithstanding this, he-persisted in running, and kept it up until he found it was impossible to rid himself of his companion, who walked with him until he gave him in charge of a police officer, who took him to the station-house. •

It further appeared, upon the cross-examination of the defendant, that he had been arrested on suspicion about fifteen times, and that he had been convicted once for stealing a watch from a gentleman, who identified him, although he had been in bed for six hours after the commission of the crime!

Some attempt was made to show that the passenger who testified to the act was unworthy of belief because, as the appellants' counsel says, he was a salesman, occasional mind reader, amateur detective and general supervisor of other peoples’ business, which, however, did not have much effect upon the jury, and should not, have any very great effect upon this court.

The defendant was convicted, and from the judgment thereupon entered this appeal is taken.

One of the points raised is that there was a material variance between the indictment and the proof as to the ownership of the watch, the allegation in the indictment being that the name of the person whose property had been stolen was unknown, while the proof on the trial was that the owner, Mr. Hertz, was before the grand jury.

It is true that the witness testified that the owner, Mr. Hertz, was before the grand jury, but it is not shown that Hertz testified before them, or that his name as the owner of the watch became known to the grand jurors; and it is suggested by the district attorney that it is somewhat difficult to see how the witness could have known that Hertz was before the grand jury, as only one witness at a time can be examined before them. And furthermore, the evidence does not seem to be material, and did not in any way affect the substantial rights of the parties, and should not therefore be regarded.

It is further urged as ground for reversal that the court erred in excluding evidence upon cross-examination of the principal witness, who, after being cross-examined as to the circumstances, was. asked; “You are somewhat of an amateur detective, are you not l"

This question was objected to and the objection sustained. It is clear that this line of examination was entirely within the discretion of the court. It in no way tended to impeach the character of the witness or to affect the credibility of his testimony, and no error upon its exclusion could possibly be predicated.

He was also asked: “ Do you remember testifying in the police oourt that you were the complainant in a case against a boy charged with larceny that occurred at a fire ? ” This was objected to as incompetent, and the record shows that the objection was sustained, but the witness answered: “ I do not think I testified before the magistrate in the police court that previous to this time I had been a complainant in a criminal case against another person.”

This seems to have been an answer to the question, and even if the exclusion of the question, if it was excluded, might have been error, it clearly is not available upon this appeal, as it was substantially answered in the first place, and, secondly, because no exception was taken.

A witness upon the stand who was present at the examination in the police court and stated that he remembered hearing the testimony of Dreyer, the only complaining witness in this case, was asked: “ Do you remember him stating that previous to this time he had had a person arrested for - larceny? ” He was also asked whether on that occasion he heard him testify to having been a. complainant in any other criminal case than the one then on trial. These questions were objected to and excluded, and exceptions taken.

There was no error in the ruling of the court. All these questions were collateral; and the appellant was bound by the answer of the witness. What he stated as to collateral matters when upon examination in the police court could not become principal evidence in the case upon trial simply because thé interrogatories were repeated.

The answers of the witness were equally conclusive upon either examination and he could not be impeached by showing that he had made different statements at different times in reference to those things which were collateral. The evidence was clearly incompetent and was properly excluded.

It is urged that the court erred in charging the jury, and in considering the points raised it is proper to say that no exceptions were taken to the charge. And it is apparent from a reading of the charge that if any exception had been taken to the language of the court in some particulars it would have been immediately obviated, and it does not appear that the defendant has suffered any such great prejudice as that without the aid of an exception a reversal should be had.

The expression of opinion by the court that he failed to see that the direct evidence of the witness Dreyer had been shaken by cross-examination does not afford without the aid of an exception any ground for this court setting aside the verdict. Neither does the statement of the court that unless Dreyer had committed perjury it seemed to him that there should be very little hesitation on the part of the jury in coming to the conclusion that the crime of larceny had been committed.

As to that portion of the charge in which the court stated that if the complainant’s evidence was true, he having seen the defendant commit a felony, it was his duty as a citizen to arrest him, it is clear that the court was simply intending to convey to the minds of the jury the difference between the right of a citizen and of a police officer to arrest, the right of a citizen being to arrest where a felony has been committed and that of a peace officer where he has reason to believe that a crime has been committed and that the party arrested is guilty of it

It was to enforce this distinction that this expression was used, to which no exception was taken.

It is urged that the court erred in its reply to the appellant’s request for an instruction in regard to an attempt. The record shows the following:

‘‘ Deft’s Counsel.—I desire to ask your honor to charge the jury that in case they may convict this man, they may convict him of an attempt to commit the crime of grand larceny in the second degree.
“ The Court: Gentlemen, if you come to the conclusion that the defendant did not actually take the watch from the person of the complainant, and get it into his possession feloniously, but that he did any act effecting that object, you may convict him of an attempt to commit grand larceny in the second degree.”

It is very clear that the court intended to say, and probably did say “tending to effect that object,” and that if the word “effecting ” was used, which is very doubtful, notwithstanding its presence in the recoi'd, it was the duty of the counsel to call the attention of the court to it in order that the verbal correction might be made.

But no exception was taken, and the defendant has not suffered any damage because the charge was more favorable to him as printed than it would have been had the correct language been used.

Upon the whole record, therefore, we think that there is no error which calls for a reversal of the judgment, and it should be affirmed.

Daniels, J.

I agree that this conviction should be affirmed. But at the same time the practice of judges expressing their opinions on the evidence in the course of the trial, or in the submission of the case to the jury, should be disapproved. It has been excused and tolerated, but never commended. It is a departure from the province of the judge, and an encroachment on that of the jury, and often an injury to a person whose guilt is in doubt. The practice is wrong, and should be avoided.


text:
    Josephine Stephenson, Resp’t, v. The Equitable Gas Light Co. of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Negligence—Contributory—Trench in sidewalk.
    Plaintiff, while walking on the sidewalk of a street, came to a trench which had been opened to connect a building with the gas main and stepped across it, but her foot struck a bar or shovel handle under the dirt and she was thereby thrown into the ditch and injured. It appeared that there was nothing to obstruct her view of the situation; that a flagstone had been left to afford a passage, and that she was not paying attention to the trench. Hfeld, that she was guilty of contributory negligence and was not entitled to recover.

      Appeal from a judgment on the verdict of a jury.

      F. R. Coudert, for app’lt; Edwin B. Leavitt, for resp’t.
   Daniels, J.

The verdict was recovered for the sum of $2,000 for damages by the plaintiff in falling into a trench on or about the 12th of November, 1887. She was passing easterly on the southerly side of Little Twelfth street in the city of New York, and this trench had been opened to connect a building fronting upon the street with the gas main in the street The trench is stated to have been from a foot to fourteen inches deep, and the plaintiff in her testimony states the apparent width to have been not to exceed one and a half feet It was opened and closed the same day. As the plaintiff approached it from the west she saw the trench and stepped across it, when, as she states, her foot struck upon a bar or shovel handle under the dirt which had been thrown out on the easterly side, and she fell back into the trench, receiving the injury for which the verdict was recovered. Nothing existed as she approached the trench to obstruct it from her immediate view. And the sidewalk at that point consisted of three rows of flagging, two of which had been .removed, but the inside or farther flagging from the street had not been taken up. There was nothing whatever to obstruct the appearance of the situation to any person approaching the trench as the plaintiff did. Her testimony was that she approached it upon a natural gait, and that there was no other passageway without going into the street. She was then interrogated whether there was not a passage between the end of the trench and the stoop line, and testified that she did not know. Also that she did not notice there was any danger, and in fact did not think anything about it. She added: “I was not paying any attention to the trench. I was anxious to get home, and I was going about my business. I didn’t expect to get hurt when I left the house in the morning.” And no controversy arises upon the evidence as to the inside flagging affording a safe and sufficient means for persons passing and repassing along the sidewalk. At the close of the proof an application was made to the court to direct a verdict for the defendant, but this was denied and an exception was taken.

The manner in which the plaintiff approached and endeavored to cross the trench, without first observing whether that would become necessary or not, and thereby subjecting herself to the risk of an accidental misstep, indicated an indisposition upon her part to obtain anything like a knowledge of the situation of things at this locality. She did not endeavor to discover whether any avenue existed for avoiding the trench, but passed immediately to it and endeavored to step across it and thereby met this accident. The entire condition of things was in plain sight capable of being observed at a glance if design existed or any effort had been made to avoid this trench. In this respect the case, in its leading circumstance, appears to be quite similar to that of Welsh v. Wilson, 101 N. Y., 254; 1 N. Y. State Rep., 19.

There the defendant had extended a pair of skids from the steps of his store to a truck across the sidewalk, and the plaintiff turned towards the store and attempted to pass around the skids, in doing which she slipped and was injured. And it was held by the court that she was chargeable with negligence and could not maintain an action to recover damages for the results of the injury. The present case is more favorable to the defendant, for a sufficient avenue had been preserved by it to enable persons passing along the sidewalk to use it with the utmost safety and freedom from all personal risks. And yet the plaintiff by her indifference to the situation failed even to notice this fact, or to avail herself of the means of safe passage in this manner secured. In this respect the case differs from those which have been brought to the attention of the court where obstacles in the highway and upon sidewalks were encountered in the night time, or under circumstances from which an accurate knowledge of the situation could not be at once obtained. The case more especially applicable to the consideration of the point here presented is that of Pomfrey v. Village of Saratoga Springs, 104 N. Y., 459 ; 5 N. Y. State Rep., 802, where in the day time the plaintiff was injured by endeavoring to pass over a ridge of ice extending from the inside to the outside of the sidewalk. This ridge was about three feet in thickness above the surface of the ground and two' and one half above the snow upon the sidewalk. But in that case there appeared to be no other means of passing over the locality, and in that respect it became a necessity for persons using the sidewalk to attempt to pass this ridge. If a passageway had been cut into the embankment of ice affording a leval surface and a sure means of avoiding it, and escaping the risk of injury, and then a person had undertaken to cross outside of that passageway over the embankment itself, a question similar to that presented in this casé would then have arisen.

But that was not the fact, and its omission from that case distinguishes it in principle from the present action. For here such a means of passage had been retained, and was accessible for use readily discoverable to all persons making even a casual use of their eye-sight before attempting to cross this trench. Some care certainly was required on the part of the plaintiff to avoid the needless exposure of herself to the risk of stepping across the trench. That care was not observed, and it was sufficient to charge her with negligence contributing to the production of the injury. And a verdict consequently should have been directed, as that was requested, in favor of the defendant. The judgment should be reversed, and a new trial ordered, with costs to the defendant to abide the event.

Van Brunt, P. J., concurs.


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    The People, Resp’ts, v. Thomas Hagan, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Burglary—What is a “ booth ” within Penal Code, § 504.
    A fruit stand, erected on a street against a building was about five feet in height and in length, and had a window and door. Upon the trial of an indictment for breaking and entering this structure, Held, that it was a “ booth ” within the meaning of § 504, Penal Code.
    2. Same—Variance between indictment and proof.
    Where an indictment charged the property taken as of one Musso, and this person stated upon the trial that his name was Musachio, Held, that the variance might under Code Grim. Pro., § 293, be amended and could be disregarded under §§ 684, 542 of the same Code.
    Appeal from a judgment of the court of general sessions of the county of New York, convicting the defendant of the crime of burglary in the third degree.

      Purdy & McLaughlin, for app’lt; McKenzie Semple, for resp’ts.
   Daniels, J.

The defendant was indicted with two other persons for breaking and entering, in the night time, the booth of the complaining witness, with intent to commit a crime therein, and stealing therefrom certain articles of personal property then being therein. The booth was shown to be a wooden structure about five feet high and four or five feet in length, having a window and a door, and it was erected as a fruit stand against premises situated at the southwest corner of Twenty-ninth street and First avenue. The objection was taken that this structure was not a booth within the meaning of that term, as it had been used in the statute. By § 498 of the Penal Code it has been made burglary in the third degree to break into a building, or room, or any part of a building, with intent to commit a crime therein. And by § 504 of the same Code the word building has been defined to include a railway car, vessel, booth, tent, shop, or other erection or inclosure. The term booth has not been further or more specially defined. And its significance, therefore, must be found in the ordinary understanding or acceptance of the word. And that has been stated by Webster to be a house, or shed, built of boards, boughs of trees, or other slight materials, for temporary occupation. This was a structure of the first description, and therefore legally designated in the indictment as a booth.

It was charged to be the property of Griovanni Musso, while the complaining witness stated his last name to be Musachio, and this has been objected to as a fatal variance between the indictment and the proof. But as such a variance has by § 293 of the Code of Criminal Procedure been made amendable on the trial, and as it could not in any respect have prejudiced the defendant, it did not render the indictment invalid, and the court could under § 684 disregard it, as that was done upon the trial. And on the appeal it has been further declared by § 542 of this Code that the court must give its judgment without regard to technical errors or defects which do not affect the substantial rights of the parties. This was no more than such a defect, and can now be of no avail to the defendant.

The evidence was sufficient to submit the question of the defendant’s guilt to the jury. It was to the effect that these three persons were found by a police officer directly in the vicinity of this structure, which had been securely closed but had then been broken open. As the officer approached two of them walked away and the defendant went behind it. That was about thirty minutes after midnight. Onp of the two dropped a blacking box and the other a saw, which was identified by the complaining witness as the saw that he had left in the building. And it was also stated that a blacking box had been taken from the building. This evidence was sufficient to indicate that these three persons were acting in concert, and, as one of them had part of the property taken, that they had committed the burglary. It was sufficient to justify the submission of the case to the jury.

That part of the charge has been complained of in which, the recorder stated that the evidence, if it is true, establishes the fact that there was a breaking and entering into this booth, and a crime was therein committed, to wit, the crime of larceny. But if this was putting the case too strongly against the defendant, he was immediately relieved from the effect of it by the further remark that “ the question is whether that evidence establishes to your satisfaction that there was a breaking of these premises, an entry into the premises and a crime committed in the premises so broken and entered. It seems to me that there ought to be no difficulty in arriving at a conclusion upon that part of the case. It is, however, a matter for you to determine.” That committed the matter fully to the disposition of the jury, and removed all ground that might have existed for objection to what had been previously stated.

The remark that the case was one of burglary in the third degree, or not guilty, did not harm the defendant, as long as the jury found him to have committed that crime. It gave him a chance of acquittal which he would not have had if his guilt of larceny or of receiving stolen property had also been included. If the jury had not found him guilty of burglary in the third degree, and either of these other inquiries had been submitted, they might have found him guilty of one of the other offenses. But that they were not allowed to do. If they did not find he had committed the higher offense, his acquittal directly followed. And that was a benefit and not an injury to him.

The case in all respects seems to have been properly disposed of, and the judgment should be affirmed.

Van Brunt, P. J., and Lawrence, J., coricur.


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    Maria Stelz, Pl’ff, v. Minnie Schreck, Impl’d, Deft.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Tenancy by entirety—Deed to husband and wife.
    The effect of a deed conveying real property to a husband and wife jointly is to vest each of the grantees with the entirety, and the right of absolute ownership in the survivor.
    3. Same—Effect of divorce upon.
    If, thereafter, the husband procure an absolute divorce, the relation on which the seizure by entirety is based is thereby abrogated, and the parties will become tenants in common of the land.
    Appeals and motions for new trial by each party from a judgment directing the recovery of dower by the plaintiff in an equal undivided half of certain real estate, situated on the southerly side of Fiftieth street, easterly of Third avenue, in the city of New York.

      Geo. H. Kracht, for pl’ff; Edward S. Johnston, for def’t Schreck; S. Jones, for guardian ad litem.

       Affirming 33 UST. T. State Rep., 133.

   Daniels, J.

The land in question was conveyed by deed jointly to William. Stelz and the defendant, Minnie Schreck, who were then husband and wife. The effect of this deed was to vest each of the grantees with the entirety* and the right of absolute ownership in the survivor. Jackson v. McConnell, 19 Wend., 175 ; Washburn v. Burns, 34 N. J Law, 18; Bram v. Bram, 34 Hun, 487; Zorntlein v. Bram, 100 N. Y 12, Chandler v. Cheney, 37 Ind., 391. As to these resuite of the conveyance, the law has been uniform in its determinations.

After this conveyance had in this manner taken effect, William Stelz obtained .a divorce from his wife Minnie Stelz, now Minnie Schreck, because of her adultery. And soon afterwards he married the plaintiff, and he died on the 8th of February, 1889, leaving a will, which has been admitted to probate by the surrogate of the county of New York. The plaintiff then brought her action for dower in this real estate, and the court at the trial sustained her right to be endowed in the equal undivided half of the land, on the ground that, after the divorce, the parties to that action became tenants in common. This view has failed to meet the approval of either party, and each has appealed from the interlocutory judgment, and uselessly added a motion for a new trial.

The statute has not declared that a decree of divorce on the ground of adultery shall affect or change the seizin of the former husband and wife under a deed to them jointly. It has been extended no further than to exclude the delinquent wife from dower in her husband's real estate, and from all participation in his personal property. 3 R S.. 6th ed., 157, § 61. And forfeited every jointure, devise, and pecuniary provision made for her in lieu of dower 2 R S., 6th ed., 1122, § 15. Whether the seizin and estate created by this deed has been changed must accordingly be .determined from the effect the decree necessarily had on the relations of the parties.

After it was recovered they were no longer one person in law. From that time they ceased to be husband and wife, and became as completely two persons as though they had not been married. The joint seizin by the entirety resulted in judgment of the law from the deed having been made to them as husband and wife. It arose out of, and depended upon that relation. That was its legal foundation and that was completely removed and abrogated by the decree of divorce.

The basis of this seizin wholly disappeared when the divorce was recovered. And logically it followed, that as the grantees in the deed could no longer hold under the tenure resulting from the marriage, that the estate in the land must have been thereby changed. And as they had become in law two persons, that the deed to them from that time created a tenancy in common, the same as it would if they had been unmarried when it was delivered. They were no longer seized in the entirety, for the marriage on which that depended had been dissolved. And when that was done, then the deed had its effect as a joint conveyance to the persons, creating the only estate permitted under its language, of a tenancy in common. It is an incidental consequence resulting from the separation of tne grantees into two legal and distinct individuals.

This subject, under similar circumstances, was examined in Ames v. Norman, 4 Sneed (Tenn.), 683, and this effect was held to follow a decree for a divorce. And it has been further followed in Lash v Lash, 58 Ind., 526, and Harrer v. Wallner, 80 Ill., 197. And this view has been commended in 2 Bishop on Marriage and Divorce, § 716. While the principle cannot be affirmed to be free from doubt, it seems to legally follow from the radical change made in the relatoins of the parties by the decree of divorce.

The exclusion of the evidence offered to prove that the purchase price of the land was paid by the husband was not erroneous. For that fact could have worked no change in the title. It was created by the deed and the marital relation of these persons. In the action for divorce it might have been entirely pertinent in the way of excluding the guilty wife from all interest in the land. Renwich v. Renwich, 10 Paige, 421. But upon this trial that could not be done. The offer came too late.

j The case seems to have been disposed of as it should be by the special term, and the judgment should be affirmed and the motions for a new trial denied. And as neither party succeeds, it should be without costs.

Van Brunt, P. J., concurs.