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    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. DAN S. RICHARDS, Appellant.

      Criminal law— what acts constitute the crime of burglary in the third degree under sections 498 and 504 of the Penal Code — proof of acts of entry, with an intent to ■commit any other mime, justifies a conviction of burglary — express malice need not be shown — offense of removing a grave stone — power of the court to allow erroneous allegations in respect to anything or person to be corrected under sections 281, 298, 294, Code of Criminal Procedure— a decision upon a demurrer only bars a prosecution for the smne offense — Code of Criminal Procedure, sec. 327 — when an administrator has no title to a vault or tablet.

    Upon the trial of the defendant on an indictment for burglary in-the third degree evidence was given tending to show that the defendant broke the lock on the outer iron gate of a vault in a cemetery, unlocked the inner door with a key and entered the. tomb; that he removed a tablet or stone in front of the place where the body of one Robert S. Phelps was buried, and in so doing broke it; that he then, with the use of a crow-bar, pried up and broke off the top of the coffin and broke the heavy cement and plaster covering the body, broke the end of the coffin and cut through the gum-mastic and lead encasement covering the body until the feet and limbs were exposed, a slipper and some of the clothing of the body being displaced and disturbed and one of the legs being punctured.

      Held, that these facts justified the jury iu finding the defendant guilty of burglary in the third degree, as that crime is defined in section 498 of the Penal Code, when read in connection with section 504 thereof, defining the meaning of the word “ building ” as used in the section first cited.
    That it was not needful to a conviction that an intent to steal, or an intent to “commit any felony,” should he shown, provided the intent to commit any other crime was averred and established.
    When acts are prohibited by statute, and the evidence clearly shows that the defendant has done them, it is unnecessary for the jury to find that the defendant was actuated by express malice. It was enough to find that he was intentionally guilty of the acts.
    That if the jury found that the defendant brote in with intent to remove "a grave-stone,” and that the tablet or stone in the front of the coffin inscribed with the birth, date of death and name of the deceased, was “a grave-stone” or “monument,” then they found that he broke in with intent to commit an act prohibited by section 8 of chapter 183 of 1847, as well as by section 647 of the Penal Code.
    The indictment alleged that the vault, building, erection Or inclosure broken into in the night-time by the defendant, was “ the property of and owned by William G Phelps, Francis A. Phelps and Lizzie S. Phelps and others,to the grand jurors unknown, who are the heirs-at-law of and legatees and devisees under the will of Robert S. Phelps, deceased, said building, erection and! inclosure being a part of the estate left by Robert S. Phelps, deceased. ” It appeared upon the trial that the three persons named in the indictment were not the heirs-at law of Robert S. Phelps, who built the vault,- nor of his father, Sherman D. Phelps, to whom the lot was conveyed by the cemetery association, and who died seized thereof, and that Harriet Phelps and eleven other persons were his heirs-at-law.

      Held, that the court did not err in denying a motion made by the defendant for his discharge on the ground of a variance between the allegations of ownership and the proof, or in granting a motion made by the district attorney to amend the indictment by striking therefrom the names of Francis A. Phelps, William G. Phelps and Lizzie S. Phelps, heirs-at-law and devisees of Robert S. Phelps, and inserting in the place thereof the names of Harriet Phelps and eleven others as owners of the property.
    The defendant put in evidence a judgment-roll, filed upon a decision sustaining a demurrer interposed by him to an indictment charging him with “ the crime of unlawful and willful injury to and destruction of real and personal property committed” as alleged in the indictment. The grounds of the demurrer were that charges of the commission of a felony and of a misdemeanor were joined in one count; that the facts stated did not constitute a crime for willfully injuring and destroying the personal property of another when the punishment was not specifically prescribed by statute, and that the personal property did not belong to the heirs-at-law or devisees of Robert S. Phelps, deceased.

      Held, that as it was nowhere made to appear by the demurrer, decision or judgment-roll that the court held that the facts stated in the indictment did not constitute a crime, the court did not err in refusing to hold that the judgment was a bar or in refusing to strike out “all the testimony which shows the commission of the acts charged.”
    That the father, and administrator of the wife of Robert S. Phelps, had no title to the vault or to the stone monument, slab or tablet, in front of the coffin of Robert S. Phelps, deceased, and had no authority, express or implied, to authorize or justify the defendant in committing the acts alleged in the indictment.

      Regina v. Sharpe (40 Eng. Law and Eq., 581); Snyder v. Snyder (60 How. Pr., 370) followed.
    Appeal from a judgment; entered in Broome county upon a verdict of conviction, taken at the Oyer and Terminer in that county, of burglary in the third degree, committed in October, 1884, by breaking and entering the Phelps vault in Forest Cemetery, in the city of Binghamton.
    Sherman D. Phelps, of the city of Binghamton, died in 1878, leaving two sons, Robert S. Phelps and Arthur D. Phelps, as his only heirs-at-law. Arthur D. Phelps died on the 21st day of October, 1880, leaving no wife or children. Robert S. Phelps died on the 14th day of December, 1881, leaving a wife, Hattie S. Phelps, a daughter of the defendant "William E. Taylor. Robert S. Phelps left no children. In 1862 Sherman D. Phelps became the owner of a burial lot in the Spring Forest Cemetery, of the city of Binghamton. He took possession of it, made interments therein, and was the owner of it at the time of his death. Upon the trial evidence was given tending to establish that, in the summer of 1881, Robert S. Phelps caused to be erected upon said burial lot a building or family tomb for the interment of the dead. It was built of granite, wholly above ground, and contained twelve places for bodies. Upon the death of Robert S. Phelps, his wife made an agreement with Dr. Henry O. Ely to embalm the body of her husband. At the time of the funeral of Robert S. Phelps, the casket containing his body was placed temporarily in the vestibule of the tomb. It was in a few days removed to a building, where the process of embalming was performed by Dr. Ely. After the embalming was completed the body was dressed in an armour of sheet lead. The lead casing, was immediately around the body over the clothes. The body was then placed in a wooden casket, made for that purpose. The space in the casket not taken up with the body and lead armour was filled with gum-mastic. On the top of tbis gum-mastic was about five inches of cement, which, after cooling, became as hard as stone. The cover of the original casket was placed on and a lead encasement over and around everything for an outside covering, intending to make the place occupied by the body ait-tight. The casket containing the body so prepared for preservation, was placed in one of the places in the Phelps tomb for its final resting place, and was there on the nights of October 22 and 23, 1881. A tablet or grave-stóne containing the usual inscription was placed in front of the place where flhe body was buried. ITattie S. Phelps died October 25, 1882, and before Dr. Ely had been paid for his servicés in embalming the body of her husband. Her father, the defendant William E. Taylor, was appointed administrator of her estate. An action in the Supreme Court was brought by Dr. Henry O. Ely against William E. Taylor as administrator, etc., to recover for the value of his services in the embalming of the body. The tidal of the action was begun at defendant Richards’ office on the 17th day of July, 1884, and the plaintiff' rested his case on the 3d day of September, 1881. It was then adjourned until the 6th day of November, 1884, when defendant began his side of the case. The defendant Dan S. Richards, assisted by Jerry McGuire, Esq., was William E. Taylor’s attorney in said action. After the plaintiff had rested his case, the defendant and Dan S. Richards made preparations to see and examine the body of Robert Phelps, thinking that enough evidence could be produced to, in whole or in part, defeat the plaintiff’s claim. During the time for which the case was adjourned, and on the nights of the twenty-second and twenty-third of October, the defendant Dan S. Richards went to Spring Forest Cemetery, broke the lock on the outer iron gate of the vault, unlocked the inner door with a key, and entered the tomb. He first attempted to remove the tablet or grave-stone in front of the body of Robert Phelps, and in so doing broke it. He then, with the use of a crowbar, pried up and broke off the top of the cofim, and broke the heavy cement and plaster slab which covered the body, broke out the end of the coffin and chiseled and cut through the gum-mastic and lead encasements until the feet and limbs of Robert Phelps were exposed. A slipper and some of the clothing of the body was displaced and disturbed and one of the legs was punctured. Being disturbed by persons wbo were sent to watcli the tomb, he made his escape.
    The grand jury of the county of Broome, in December following, indicted Dan S. Richards, William E. Taylor and Robert Richards, the case resting on circumstantial evidence. Three indictments were found, one for burglary in the third degree, one for injury to property, under section 647 of the Penal Code, and for injury to property under section 654 of Penal Code. The defendants demurred to all the indictments. The demurrers to the indictment for burglary and to the one under section 647 of the Code were overruled, and the demurrer to the indictment found under section 654 was allowed upon the ground that the offense came under section 647. The defendants were placed upon trial at the December term of' the Court of Oyer and Terminer, 1885, on the indictment for burglary in the third degree. Robert Richards was discharged by the court, William E. Taylor was acquitted, and Dan S. Richards found guilty, and appealed to this court from the judgment of conviction.

      J. Mo Gruiré, for the appellant.

      George JB. Curtiss, district attorney, for the people.
   Hardin, P. J.:

Section 498 of the Penal Code defines burglary in the third degree and declares a person who either (1) with intent to commit a crime therein, breaks and enters a building or a room or any part of a building * * * is guilty of burglary in the third degree.” The word “ building” as used in this section is defined in section 504 of the Penal Code and declared to include a railway car, vessel, booth, tent, shop or other erection or inclosure.” The last section is new,and read in connection with section 498 gives to the latter section the same significance as though it read “ building, or other erection or inclosure.” We think no error was committed by the trial judge in holding that the defendant had entered a building, erection or inclosure,- which was named in the 498th section defining burglary. People v. McClosky (5 Parker, 57), decided under the Revised Statutes, held that a room in the basement of the court-house at Utica occupied by the “ Gulf Brewery” was a building or “ storehouse” and that breaking into the room was a violation of the statute against burglary in the third degree. Since that case was decided the Revised Statutes in respect to burglary in the third degree have been superseded by the sections of the Penal Code from which we have quoted, and the words “ or other erection or inclosure” introduced into the statute. (See 2 R. S., 669, § 17.) Under the Revised Statutes the breaking into “ a building within the curtilage of a dwelling-house, but not forming a part thereof, or (2) any shop, store, booth, tent, warehouse or other building in which any goods, merchandise or valuable thing shall be kept for use, sale or deposit, with intent to steal therein, or to commit any felony,” was declared “ burglary in the third degree.”

In the section of the Revised Statutes as to burglary in the first degree (2 R. S., 669, § 10) it was provided that if the breaking was “ with intent to commit some crime ” the offense was made out. It was not necessary to specify what kind of felony was intended in the indictment for burglary in the first degree. (Mason v. The People, 26 N. Y., 200.) But the statute language, found in the Penal Code, as to burglary in the third degree, as a comparison thereof with the Revised Statutes will show, is quite similar. If the entry into a building, “erection or inelosure” is with intent to commit a crime therein, the Penal Code is violated. It is not needful to a conviction that an intent to steal, or an intent to “ commit any felony ” shall be shown, provided the intent to commit any other crime is averred and established. (Penal Code, §§ 198; 199; 504.) A breaking may be made by opening a door tightly closed, whether locked or latched. (Tickner v. The People, 6 Hun, 657. Penal Code, § 501.) The evidence (fols. 106-and 355) shows the outer bronze gate was broken by defendant. If the defendant entered the vault, or “ erection or inclosure ” with intent to commit a crime therein, then ho violated the statute against burglary in the third degree. Upon the trial, the question as to the intent with which he entered was submitted to the jury, and their verdict, in effect, finds that the intent was to “commit a crime.” "We think that question was proper for the jury upon all the evidence before them, and that we should not disturb their verdict upon that question. (Penal Code, §§ 3, 1, 5, 6, 617, 675.) The stone in front of the casket was broken ; the top of the casket was broken and also the end of it, and the lead covering over the top of the casket was broken. The cement covering the body was broken, and the oakum and gum incasing the body was broken and the slipper and some of the clothing of the body was displaced and disturbed and one of the legs was punctured. Defendant testified he “ took a bar to enable him to remove obstructions of the box, the cement and gum-mastic; it was with that intent I took it.” "When acts are prohibited by statute and the evidence clearly shows the defendant has done them, it is “ wholly unnecessary for the jury to find that the defendant was actuated by express malice.” It is enough to find that he was intentionally guilty of the acts. (The People v. Reed, 47 Barb., 243.)

If the jury found that the defendant broke in with intent to remove a “grave-stone,” and that the tablet or stone in front of the coffin inscribed with the birth, date of death and name of the deceased was a “grave-stone” or “monument,” then they found that he broke in with intent to commit an act or acts prohibited by section 8 of chapter 133 of the Laws of 1847, as well as by section 647 of the Penal Code.

In the indictment before us allegations were inserted to the effect that the vault or building, or erection or inclosure, broken into in the night-time by tlie defendant was “ the property of and owned by William Gr. Phelps, Francis A. Phelps, and Lizzie S. Phelps and others, to the grand jurors unknown, who are the heirs-at-law of and legatees and devisees under the will of Robert S. Phelps, deceased, and said building, erection and inclosure being a part of the estate left by Robert S. Phelps, deceased,” with an “intent maliciously, willfully, secretly and unlawfully to deface, disfigure, remove and destroy a grave-stone, marble tablet and monument, the same being works of art and useful and ornamental improvements in and upon the said Phelps vault, * * * being the property of and owned by the aforesaid William Gr. Phelps, Francis A. Phelps, Lizzie S. Phelps and others, to the said grand jury unknown, who are the heirs-at-law and legatees and devisees under the will of the said Robert S. Phelps, deceased, and being part of the estate left by said Robert S. Phelps, deceased.” * * *

By the proofs and concessions upon the trial it appeared that the Spring Forest Cemetery was incorporated in 1853, under chapter 133 of the Laws of 1847. That the association, by its deed August 13, 1862j conveyed to Sherman D. Phelps (father of Robert S. Phelps), the cemetery lot whereon the lot was located “ with the conditions and limitations mentioned in said legislative enactment.” That Sherman D. Phelps did not convey or transfer said burial lot in his life-time. That the cemetery association “ had the general management of the cemetery in which the vault was built.” That Sherman D. Phelps took possession of the lot immediately upon receiving the deed from the cemetery association, and remained in possession until his death in November, 1873. In 1881, at the request of R. S. Phelps, the vault was constructed at a cost of $5,000, and the keys thereof delivered to Robert S. Phelps. It was conceded that the title to the burial lot acquired by S. D. Phelps, was “ inalienable either by grant or devise, an interment having been made thereon during the lifetime of S. D. Phelps; upon his death the title to the lot vested in his lieirs-at-law.”

It was conceded by the district attorney upon the trial that the “ three persons named in the indictment ” are not heirs-at-law of Robert S. Phelps, and it appeared they are not lieirs-at-law of Sherman D. Phelps. The defendant moved for his discharge on the ground of a “ variance in the allegations in the ownership of the property, and the proof, * * * and because it appeared by the proof that the heirs-at-law of Robert S. Phelps are Harriet Phelps and eleven other persons named. The motion was denied and defendant excepted.

Then the district attorney moved to amend the indictment by “striking out therefrom the names of Francis A. Phelps, 'William Gr. Phelps and Lizzie S. Phelps, lieirs-at-law and devisees of Robert S. Phelps, and insert in the place thereof the names of Harriet Phelps and eleven others as owners of the property described in the indictment.” The defendant “ objected to the allowance of such amendment to the indictment as not being within the power of the court to allow, * * * and the court lias no power to change or alter an indictment- * * * in a material matter.” The court overruled the objection and allowed the amendment to be made, and the same was made and an order to that effect was granted by the court. To that ruling the defendant excepted. There is no mention made of the order in the notice of appeal from the judgment. It may be assumed that the variance between the allegations of the indictment, and the proof of ownership of the property, of the vault and contents would have been fatal under the law as it existed prior to the adoption of the Code of Criminal Procedure. (Bish. on Crim. Pro., vol. 2, §§ 137 and 138, p. 64; Quinn v. The People, 71 N. Y., 562; Biggs v. The People, 8 Barb., 551.) However, all forms of pleading m criminal cases existing prior to the Code of Criminal Procedure were abolished, and “ the rules by which the sufficiency of pleadings is to be determined are prescribed”-by the Code of Criminal Procedure,'section 273. This brings us to the inquiry as to whether the variance is fatal, and the indictment non amendable under the Code of Criminal Procedure. In section 281 of the Code of Criminal Procedure it is declared that “ when an offense involves the commission of, or an attempt to commit a private injury, * * * an erroneous allegation as to the person injured or intended to be injured, is not material.” The injury referred to in the indictment was of property belonging to private persons, and in some sense the attempt was to commit “ a private injury.” But whether the new provision of law found in section 2S1 is applicable to and controlling of the question here presented need not be conclusively determined, but effect may be given to the section when read in connection with section 293 relating to amendments, and both sections interpreted together. By the latter section power is given to allow amendments of indictments. We have already held that section to be valid and constitutional (People v. Johnson, 4 N. Y., Crim. Rep., 591), and our decision was affirmed by the Court of Appeals in the January Term. In that case, the amendment changed the name of the' female seduced under promise of marriage, and also the name of the town in which the crime was alleged to have been committed. By section 293 power is given to the court to allow certain amendments to obviate the difficulties presented by. a variance between the allegation therein and the proof,” viz: (1) “ In resjject to time, or (2) in the name or description of any place, person, or thing.” By reference to the indictment it is seen that the allegation therein referred to the “ thing ” or property affected by the crime. In describing it, the pleader averred that it belonged to “ the heirs and legatees ” of Robert S. Phelps. By way of a further description of it, the pleader stated that it was owned by or belonged to the persons named, who were the lieirs-at-law of Robert S. Phelps. In respect to the ownership, the averment that it belonged to the heirs of Robert S. Phelps was correct, and accords with the proof. But the averment that the ownership was in the three persons named was erroneous. In that respect, the descriptive fact of the property or “thing,” which descriptive averment tended to identify the property or “ thing ” was at variance with the proof. The “ thing ” would have been more accurately described and in accordance with the proof of ownership if the averment had been that the ownership of the property or “ thing ” was in “ the heirs-at-law of Robert S. Phelps,” who were the twelve names that appear as such, and in the amendment allowed. Again, “ the persons ” whom the amendment undertook to describe “as heirs at law and legatees of,” etc., were described by a further addition of three names, whereas it turns out that the attempt to fully describe “ the heirs at law of R. S. Phelps,” was erroneous, in that the heirs did not bear the three names given, but “ the heirs at law ” bore twelve other names. The description of “ the person ” of the heirs at law was defective, erroneous, and the amendment makes an averment which corrects the description of “ the person ” or “ persons ” of the heirs-at-law of said Phelps.

In The People v. Johnson (supra) the “ place ” named in the indictment was stricken out and the amendment substituted “ Champion ” for “ Wilna,” and for a change of person seduced the name in the indictment of “ Mary Olyphant ” was changed by the amendment to “ Mary divert.” It may be further observed that in the allegations of ownership of the “ thing ” or property, coupled with the names of the three persons named are the words, viz.: “And others to the grand jurors imlcnown who are the heirs-at-law of, and legatees and devisees under the will of Robert S. Phelps, deceased.” The word “ others,” if applied to the persons, who, by the proofs, appear to be the heirs-at-law of Robert S. Phelps, may be regarded as an indefinite and imperfect description of “ the heifg-at-law of Robert S. Phelps,” and a meagre description of the “person” or “persons,” and the amendment served to make definite and perfect the description of the “ othei*s ” who were the heirs-at-law of Phelps. "We are constrained to declare the amendment allowed only perfected' “ the name or description, * * * of the person or thing.” The court did not exceed its power in allowing the amendment and disregarding the variance bee ween the original allegations of the indictment and the proof. (Code of Criminal Procedure, §§ 281, 293, 291. People v. Johnson, supra.)

Defendant put in evidence a judgment-roll filed upon the decision of a demurrer interposed to an indictment against the defendant, charging him with the crime of unlawful and willful injury to and destruction of real and personal property committed ” as alleged in that indictment. To that indictment a demurrer had been interposed and sustained and defendant discharged. The grounds of the demurrer were viz: First, for joining “ in one count separate and different offenses, that is to say, a charge of the commission of a felony, with a charge of the commission of a misdemeanor; that an injury to a tomb, catacomb or vault, or any part of the same is a misdemeanor, an injury to real or personal property, when the value of the same is twenty-five dollars, and where the punishment is not specifically prescribed by statute is felony.” Second, that the facts stated in the indictment do not constitute a crime for wilfully injuring and destroying the personal property of another when the punishment is not specifically prescribed by statute. Third, that the personal property does not belong to the heirs-at-law or devisees of Robert S. Phelps, deceased.

There was no demurrer upon the ground that the facts stated do not constitute a crime,” which ground might have been taken. (Code of Crim. Pro., § 323,) It is nowhere made to appear by the demurrer, decision or judgment-roll, that the court held that the facts stated in the indictment did not constitute a crime. Besides, the crime alleged is not the crime alleged in the indictment for burglary now before us. The section which declares the effect of a decision upon a demurrer only declares such a decision “ is a bar to another prosecution for the same offense.” (Code of Crim. Pro., § 327.)

“ The acquittal or conviction on an indictment, in order to be a good defense to a subsequent indictment, must he for the same identical offense charged in the second indictment.” (1 Russ, on Crime, 836; I Blk. Com., 336; opinion of Allen, J., in People v. McClosky, 5 Park. Crim. R., 59.) It is now provided by section 506 of the Penal Code, viz.: “ A person who, having entered a building under such circumstances as to constitute burglary in any degree, commits any crime therein, is punishable therefor, as well as for the burglary; and may be prosecuted for each crime separately, or in the same indictment.” There is nothing in the judgment record introduced to show that the c'ourt held that the defendant had not committed or did not intend to commit a crime within the building entered. In the grounds of demurrer the defendant asserted that the facts stated, viz.: “ That an injury to a tomb, catacomb, or vault, or any part of the same is a misdemeanor.”

We are of the opinion that the court did not err in refusing to hold that the “ judgment is a bar to any proof of the commission of the acts * * * charged in the indictment now upon trial,” or in refusing to strike out “ all the testimony which shows the commission of the acts charged.” We are of the opinion that defendant Richards had no express or implied authority from any person entitled to give the same to break into the vault or commit the acts charged. Taylor, the father and administrator of Mrs. Phelps, had no title to the vault, or to the stone monument, slab or tablet in front of the coffin of Robert S. Phelps, deceased. The acts of the defendant were unauthorized and unlawful. (Reg. v. Sharpe, 40 Eng. Law and Eq., 581; Snyder v. Snyder, 60 How. Pr., 370.) Several rulings were had and exceptions taken during the trial to which reference in this opinion has not been made, but an examination has not satisfied us that any error was committed which should lead to a reversal, as section 542 of the Code of Criminal Procedure requires the court to disregard “technical errors or defects, or exceptions which do not affect the substantial rights of the parties.” (Schrumpf v. People, 14 Hun, 10; People v. Gonzales, 35 N. Y., 49; Stokes v. People, 53 id., 165; Coleman v. The People, 58 id., 555; People v. Burns, 33 Hun, 300; Cox v. The People, 80 N. Y., 500.)

If the foregoing views are approved the conviction and judgment should be affirmed, and the proceedings remitted, to the Oyer and Terminer of Broome county, with directions to enforce the same.

BoaedmaN, J., concurred; Follett, J., not voting.

Conviction, order and judgment affirmed.


source: Caselaw Access Project

author: Boardman, J.: Hardin P. J.:

license: Public Domain

text:
    SCHUYLER PECK, Appellant, v. ELIZABETH PECK, Respondent.

      Divorce — not granted when hath parties are guilty of adultery — evidence—recriminating chargee sustained on less than would he required to sustain an action for adultery.

      If both parties to an action, brought by a husband to procure a divorce from his wife on account of her adultery, have been guilty of adultery, neither is entitled to a judgment of divorce.
    A recriminating charge, made in such an action by the wife, may be sustained on evidence not as strong as might be necessary to sustain the suit for adultery.
    Appeal from a judgment entered in Onondaga county, dismissing tbe complaint in tbis action.

      Costello da Ide, for tbe appellant.

      Hopkins c& Bondy, for tbe respondent. -
   Boardman, J.:

This action is brought to obtain a divorce on the ground of defendant’s adultery. The defendant denies the adultery, and, by way of recrimination, alleges the commission of adultery by the plaintiff, and demands affirmative relief. The reply is a general denial of such charges.

The referee finds as facts (1) that the defendant has committed adultery; (2) that such adultery was committed through the connivance and procurement of plaintiff; (3) that plaintiff has committed the adultery charged, and, as a conclusion of law, that neither party is entitled to a judgment of divorce against the other; and the complaint was thereupon dismissed, with costs. The referee’s report was confirmed and judgment ordered accordingly, after a denial of a motion to set aside the report and for a new trial.

The plaintiff seeks to reverse the judgment upon the merits, and alleges that the finding of adultery on his part is not sustained by the evidence, and that the finding of his connivance and procurement of the defendant’s adultery is without evidence to sustain it. The plaintiff must succeed on both of these allegations, or the judgment must be sustained as to the merits. If both parties have been guilty of adultery, as is found, neither is entitled to judgment of divorce. (Code, § 1758, sub. 4; Greenl. Ev., vol. 2, § 53; 2 Bishop Mar. and Div., §§ 76, 86.) In Wood v. Wood (2 Paige, 108), at page 111, the chancellor says: If both parties are guilty, neither has any claim to relief, and they are in that case suitable and proper companions for each other.” Has the plaintiff’s adultery been established by sufficient evidence ? In answering this question we must not forget, in the language of Greenleaf in the section cited, that the recriminating charge may be sustained on evidence not as strong as might be necessary to sustain a suit for adultery ” to the same effect. (2 Bish. M. and D., § 89.) We have examined the evidence touching the charge of adultery against the plaintiff. We think it strongty tends to establish the fact. It is not positive and incontrovertible, but the circumstances proved justify the inference drawn from them by the referee. There is evidence attacking the character of one of defendant’s witnesses and sustaining the character of Mrs. Harvey and the Cork block. Hpon such conflicting evidence the conclusion of the referee ought to be final. The plaintiff gave no direct evidence, although it was in his power to repel the inference that might justly be drawn from his conduct as shown. The evidence tends to show and, we think, does show that tiie plaintiff was repeatedly in the rooms of Mrs. Harvey, going there at eight or nine o’clock at night and staying to a late hour; that Mrs. Harvey’s reputation was attacked; that the character of the inmates of the Cork block were attacked.. While the attacks upon Mrs. Harvey and the Cork block were -controverted, the presence of the plaintiff in her rooms at unreasonable hours was not controverted or explained. The plaintiff’s home was in Syracuse and Mrs. Harvey’s home in Rochester. There is; therefore, no room for such innocent presumptions as would be- proper in case such circumstances had occurred among neighbors and family friends. We think the fact of plaintiff’s adultery is sustained by a sufficiency of evidence, and that the decision of the referee in that respect should be sustained. • •

Does the evidence show connivance at and procurement of the defendant’s adultery by the plaintiff ? We think it does not. There is abundance to excite suspicion, but it does not reach the height of evidence. The presence of Evans and Wright at Lilly’s Grove at the precise time and place to see this act of adultery,-committed, the immediate procurement and service by one of them of a summons upon defendant, the earnest advice given by him to her not to defend, the part taken by Mrs. Sarah Peck in a similar way, are very suggestive of plans and contrivances to secure evidence of defendant’s guilt. But the plaintiff is not connected therewith in any way. There is no evidence that the plans were his, or that he knew of or consented to them. If he suspected his wife’s infidelity, he might lawfully watch her — he might hire others to watch her, in order to obtain proof of her guilt. The latter was, doubtless, done in the present case, but there is no evidence that the plaintiff employed Barnes to accomplish the act, or with Barnes created, the opportunity. So far as appears, plaintiff had no knowledge of or participation in Barnes’ purposes, acts or plans. The same is equally true in regard to Mrs. Sarah Peck. "While the plaintiff might permit, he could not invite the adultery of his wife. (2 Bish. on M. and D., § 9; Robbins v. Robbins, 5 N. E. [Mass.] Rep., 837.) But it does not appear that he either permitted or invited the act of his wife. Hence we conclude that the sixth finding of fact in the referee’s report is unsupported by evidence.

This leaves the parties in pari deliotu. Both appear in court with unclean hands. Neither party can complain of an injury of which he or she is equally guilty. Both have been guilty of adultery, and hence neither can have judgment of divorce against the other. (Smith v. Smith, 4 Paige, 432; Code, § 1758, sub. 4, and authorities cited supra.) The judgment is right, then, upon the merits and must be affirmed, uriless fatal errors occur in the rulings on admission of testimony or upon the trial, or in refusals to find on request.

The amendment of the answer upon the trial was within the discretion of the court and was proper. (Smith v. Smith, 4 Paige, 432.) It is not the policy of the law to allow judgments of divorce to be taken where a valid defense exists, and courts on their own motion interfere to prevent such result, where the facts are brought to their knowledge. The exceptions to rulings on admission of evidence are mostly to such testimony as tended to establish plaintiff’s connivance with his wife’s adultery. Since we now hold and decide that such connivance was not established, the erroneous rulings, if any, could not and do not harm the plaintiff. The defendant's evidence as to tbe character of Mrs. Harvey, and the Cork block was competent. (2 Greenl. Ev. § 44.) The referee refused to make various findings in respect to plaintiff’s connivance with defendant’s adultery. If such refusals were erroneous they have been corrected by our disregard of the finding that plaintiff was guilty of such connivance. The plaintiff has not been injured either by such refusals to find or by findings in fact made. The other exceptions to the refusals to find as requested relate to plaintiff’s adultery, and have already been disposed of in the earlier part of this opinion. After a careful examination of this case we think the complaint was properly dismissed.

The judgment is affirmed, with costs.

Follett, J., concurred.

Hardin P. J.:

I concur for the reasons given in the opinion, as well as those stated in Holcomb v. Holcomb (3 New York State Rep., 762), lately decided in the Third Department, opinion by Learned, P. J.

Judgment affirmed, with costs.


author: Boardman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. NATHAN S. LEE v. BENJAMIN DOOLITTLE and Others, Members of the Board of Commissioners of Police of the City of Oswego.
    Certiorari-— Code of Civil Procedure, sea. 2140 — removal of officer of police force of Oswego —1870, chap. 255, sec. 10 — can only be done after a trial upon charges preferred.

    The relator, a member of the police force of the city of Oswego, was tried by the police commissioners upon two charges; one for using obscene and abusive language of and concerning one Glynn, the other for being asleep while on duty between twelve and one o’clock at night. After the trial the majority of the commissioners resolved to discharge him from the force “for incompetency, inefficiency and using language unbecoming an officer on April 12,1886 (the dav of the trial), in presence of and within the hearing of this board while in session.” No proof or recital of this last charge, except the resolution, appeared in the return or elsewhere.

      Held, ihat the proceedings should be reversed and annulled as the relator had been convicted of offenses with which he had not been charged and for which he had not been tried.
    Although the legislature, upon providing for the removal of officers of the force by the board by the passage of section 10 of chapter 215 of 1870, did not intend to require this to be done by a technical and critical proceeding, yet it did intend that at least a summary trial should be had upon what might be deemed an informal accusation where the accused should know of what he was accused and have a fair opportunity to meet the charges.
    That the proceeding should also be reversed upon the ground that there was an entire absence of evidence which could justify the adoption of the resolution and the dismissal of the relator.
    Certiorari to review tlie action of the resj>ondents, tlie members of the board of commissioners of police of the city of Oswego, in removing the relator from his position as captain of the night watch in said force.

      D. P. Lester, for the relator.

      W. J. Boggs and J. Ii. Higgins, for the respondents.
   Boardman, J.:

This hearing is had upon a return of defendants to a writ of certiorari issued upon affidavits and after notice to defendants.

The affidavit of Glynn charges the relator with using obscene, abusive, etc., language of and concerning Glynn. But it does not show that such language was used by Lee while in the discharge of his duty as captain of night police. The affidavit of Matson charges Lee with being asleep, while on duty, about April 1,1886, between twelve and one o’clock at night. Upon a trial, evidence was given tending to prove that Lee was asleep on the night in question, and a greater amount of evidence that he was not then asleep. Evidence was also given, against the objections of Lee, tending to prove that he had been asleep on duty at other times not specified in the charge. After the trial, the defendants, by a majority vote, resolved to discharge Lee from the force for incompetency, inefficiency and using language unbecoming an officer on April 12, 1886 (the day of the trial), in presence of and within the hearing of this board while in session.” Of this last charge no proof or recital appears in the return or elsewhere in the papers, except the resolution. By the charges made, the defendant had jurisdiction of the subject-matter and, in a proper case, the power to try upon charges and dismiss the relator from the police force. The difficulty is that the defendants did not keep within their jurisdiction.' The relator was tried for the use of vile language and neglect of duty. Those were the only charges made against him. He was convicted of incompetency, of which there is no evidence; of inefficiency, of which there is no satisfactory evidence, and of using language unbecoming an officer during the trial, of which there is no evidence. It is not stated even what such language was, nor the circumstances under which it was used. What is still more serious, he was convicted of offenses of which he had not been accused and for which he had not been tried. This, in our judgment, does not answer 'the requirements of the law. Section 10 of chapter 255, Laws of 1870, provides that any officer “may be removed by the board, on proof of charges, preferred before them in writing, -of ..illegal, corrupt or otherwise improper conduct, on which he has had an opportunity to be -heard in his defense.” Plainly no such charges were made or tried as he was convicted of, nor' did he have an opportunity to be heard in his defense as to them so far as the returns show. While a technical and critical proceeding in such cases was not contemplated by the Legislature, it was the intention that a summary trial be had upon what might be deemed an informal accusation, where the accused should know of what he is accused and have a fair opportunity to meet the charges. Such .proceedings should not be required to be conducted with the same precision and accuracy as the trial of an action at law. But the substance should be fairly preserved and enforced. (People ex rel Flanagan v. Board of Police, 93 N. Y., 97) The questions to be determined on a .review are stated in section 2140 of the Code. Tinder the fifth clause this court has power to reverse the proceedings where they are dlearly against the weight of evidence. (93 N. Y., 97, ante; People ex rel. Fitzsimmons v. James Jourdan, Police Comr., 13 W. Dig., 207; People ex rel. Drevet v. Board of Fire Comrs., 30 Hun, 376; affirmed, 96 N. Y., 666.) In th ecase under consideration there is au entire absence of evidence which could justify the resolution passed by the defendants and the consequent dismissal of the relator. The trial, as we have seen, is an investigation upon written charges upon notice to the accused.

It is authorized, that the discipline, efficiency and purity of the police force may be maintained and that those unfit for such stations may be removed. The law should, therefore, be construed liberally, with a view to accomplish the purpose intended. But we think no indulgence could sustain the present proceedings and decision of the defendants without opening the door to all kinds of corrupt and vicious misconduct on the park of commissioners whenever they choose to indulge in them.

The proceedings and decision of the defendants, as commissioners, are wholly reversed and annulled. The relator is given thirty dollars costs and his disbursments against the defendants under section 2143 of the Code of Civil Procedure.

Hardin, P. J., and Follett, J., concurred.

1 The decision of the commissioners reversed, with thirty dollars costs and disbursements.


author: Follett, J.:

text:
    WILLIAM H. DELMORE, Appellant, v. RICHARD L. OWEN, Respondent.

      ffaffrant of attachment — Oode of Ovett Procedure, see. 682 — a party proceeding under it must show that he has acquired a valid lien upon the property.

    To entitle a person other than the defendant to move, pursuant to> the> provisions of section 683 of the Code of Civil Procedure, to vacate or modify a warrant of attachment, he must show that he has acquired a lien; upon or an interest in the property held under the prior attachment, before- he has any standing in court to move to vacate the prior attachment.
    Whether or not he has such a lien is a question which the prior attaching creditor may dispute, and if the facts be decided.against the.moving party, his motion must fail.
    Appeal from an order, entered* ijrn Jefferson; county, vacating an attachment upon the motion of a. subsequent; attaching creditor.

      A. _E. Kilby, for the appellant-.

      H. G. Goolt, for James H. Phelps j the respondent.
   Follett, J.:

Appeal from an order vacating an attachment upon the motion of a subsequent attaching creditor. The attachment vacated was granted upon the affidavits of the plaintiff, Thomas Bennett and Alzina Owen, upon the ground that the defendant had departed from the State of New Tort with intent to defraud his creditors, which ground is recited in the warrant, and this fact is not questioned. James H. Phelps subsequently obtained and levied an attachment upon the chattels seized by Delmore’s attachment, and upon the strength of the lien so acquired, moved to vacate Delmore’s attachment upon the ground that a cause of action was not stated in the affidavits on which the warrant was granted.

The decision at Special Term was placed upon the ground that the language of the affidavit does not aver the existence of facts sufficient to constitute a cause of action, but is merely descriptive of a cause' of action, or of facts constituting a cause of action. The language of the affidavit does not, fairly construed, justify this conclusion, and we are of the opinion that a cause of action is sufficiently averred to support the attachment. This motion was made upon the papers on which the warrant was granted, “ and upon all the papers had, used or served in said action.” A verified complaint had previously been filed and used to obtain an order for the publication of the summons against the absconding .defendant. This complaint appears in the appeal book without objection that it was not used on the motion, and the order appealed from recites that it was read on the motion. Facts constituting a cause of action are alleged in this complaint, and from' all of the papers on which James H. Phelps moved to vacate the plaintiff’s attachment, it clearly appears that a cause of action existed in favor of the plaintiff at the time his attachment was granted. The papers on which Phelps’ attachment was issued are contained in the appeal book, without objection, and they were, presumably, before the Special Term, and they do not show that Phelps was entitled to recover a sum stated therein, over and above all counter-claims known to him,” nor do the papers contain an equivalent allegation, or any allegation in respect to counter-claims. This was a fatal defect, but the court refused to consider it, holding that a subsequent attaching creditor was entitled to make the motion, though the papers upon which his attachment was granted did not confer jurisdiction. This was error. “ The defendant, or a person who has acquired a lien upon, or interest m his property, after it was attached, may * * * apply to vacate or modify the warrant.” (Code Civ. Pro., § 682.) A person, other than the defendant must show that he has acquired a lien upon, or interest in the property held under the prior attachment before he has any standing in court to move to vacate the prior attachment. "Whether he has such a lien is a question which the prior attaching creditor may dispute, and if the facts be decided against the moving party, his motion must fail. In this case it clearly appears that the moving creditor had not acquired a valid lien upon the property.

The order is reversed, with ten dollars costs and printing disbursements ; and the motion is denied, with ten dollars costs.

Hardin, P. J., and Boardman, J"., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


text:
    JOHN H. BRUEN, Respondent, v. SOLOMON L. GILLET, Appellant, Impleaded with FRANCIS G. HALL.

      Oeieral assignee for the benefit of creditors — when an assignee who volunlaril deposits Vie,moneys of the estate with a co-trustee, who is an individual banker, is liable for the same if lost by his failure.

    In this action, brought to compel the defendants, the general assignees of one Beadle, to render an account and distribute the assets among the creditors, the appellant G-illet sought to avoid liability for any part of the balance found due, upon the ground that he had intrusted his co-trustee, Hall, a man in good credit, with the management of the trust estate. Hall, who was at the time of the assignment a banker in the city of Elmira, continued to carry on that business until July 20,1884, when he failed and made a general assignment for the benefit of his creditors. He testified that a large portion of the moneys was at first deposited to the credit of the assignees in the Chemung Canal Bank and in the Second National Bank, but that it was shortly thereafter drawn out by the joint checks of the assignees and deposited with him, and that he kept an account with the assignees and credited the moneys collected to them, with the knowledge of Gillet, and, also, that he used the trust fund in his private business.

      Held, that as the defendant Gillet had voluntarily placed the money in the sole custody of his co-assignee, whom he knew to he añ individual banker, he was guilty of gross negligence, and that, under the well settled rules of law relating to the liability of trustees for their conduct, both defendants were properly held liable for the loss of this sum.

      Duffy v. Duncan (33 Barb., 587; affirmed, 33 N. Y., 187); Berwick v. Halsey (4 Bedf., 18) followed.
    Appeal from a judgment in favor of the plaintiff, entered in Chemung county, upon the report of a referee.

      J. Mg Quire, for the appellant.

      Youmcms d? Moss, for the respondent.
   Follett, J.:

Appeal from a judgment entered upon the report of a referee. March 22, 1878, Henry W. Beadle made a general assignment for the benefit of creditors to the defendants, who immediately accepted of the trust and entered upon the dischai'ge of their duties.

This action was begun January 2, 1882, to compel defendants to distribute the assets among the creditors and close the trust. Previous to the commencement of the action the defendants had paid one dividend of $49,033.31, and after the commencement of the action, a second dividend of $16,018.20. By an account, verified by both defendants January 12, 1883, they admit the receipt of $106,085.69, and charge the trust with $88,992.86, leaving a balance in their hand, at that date of (page 32)............. $17? 092 83

The referee charged to this balance

the following sums:

Interest collected prior to April 1879 Bents collected from June 1880 to . January, 18S1 ................. Collected on Snyder note.......... Collected since January 12, 1883... op " i=h y Bi y cr>? $332 90 2,332 95 128 47 1,254 00

Improperly paid Emma Fountain

(eleventh finding) .. 1............. 18 07

Improperly paid divers persons (thir-

teenth finding)................... 332 35

Improperly charged as “ collection.

accounts” (fourteenth finding)...... $561 13

Commissions taken by assignees Sep-

tember 18, 1878 (tenth finding).... ■ 6,000 00

Interest on moneys used (ninth finding) 11,101 65

-- $22,361 52

Or. $39,157 35

By expenses since January 12, 1883

(eleventh finding)................ $873 25

Due Elmira water works (fifteenth

finding)....................... 97 05

Commissions on receipts, five per cent

(fifteenth finding)................ 6,076 28

---7,016 58

$32,110 77

The balance shown by the above statement exceeds, by fifty cents, the balance found by the referee. The appellant excepted to being charged with any of the items added to the balance of $17,092.83 by the referee, but in the brief presented in his behalf the only item challenged is interest, $11,101.65, though the appellant also insists that he is not liable for principal or interest, because the fund was lost by the failure of his co-trustee, Hall. The appellant seeks to avoid liability for any part of the balance found due, upon the ground that he intrusted his co-trustee, Hall, a man in good credit, with the management of the trust estate. It appears that Hall was a banker at the city of Elmira at the time of the assignment, and continued in that business until July 22,1881, when he was found to be insolvent, and made a general assignment for the benefit of creditors. Hall managed the assigned estate substantially to the exclusion of Gillett, and he, Hall, testified that he used the trust funds in his private business. He also testified “I am only an individual banker. As such banker I kept an account with Hall and Gillett, as assignees, credited these moneys collected; was with Gillet’s knowledge.” Hall also testified that a large portion of the moneys was at first deposited to the credit of the assignees in the Chemung Canal Bank and in the Second National Bank, but it was shortly drawn out by the joint checks of the assignees and deposited with the defendant Hall. By signing these checks, the appellant, Gillet, voluntarily placed this money in the sole custody of his co-assignee. He knew that Hall was a banker, and must have known from the course of business, that it was being used by Hall individually; but if he did not know this, he did know that he was placing the money within the power of his co-assignee to so use it. This was gross negligence. The appellant was not examined in his own behalf before the referee, and made no attempt to show that he acted on good faith, or diligently. Hnder the well settled rules of law relating to the liability of trustees for their conduct, both defendants were properly held liable for the loss of this sum. (Duffy v. Duncan, 32 Barb., 587; affirmed, 35 N. Y., 187; Berwick v. Halsey, 4 Redf., 18; 3 Will. Ex. [6th Am. ed], 1827.) The rule measuring the liability of a trustee for the devastavit of a co trustee in a continuing trust, is not quite applicable to this case. In continuing trusts, it may not, under some circumstances, be actionable negligence for a trustee to intrust his co-trustee with the securities of the estate, even though by such action loss accrues. The trust in question was an active one, and these assignees knew that it was their duty to speedily convert the estate into money, care for it with vigilance and promptly distribute it among the creditors; and neither truetee can escape liability by intrusting the sole management of the estate to his co-trustee. No excuse is shown why this money was not'promptly distributed, or for drawing it from banks and intrusting it to Hall. This appellant took a sufficiently active interest in the management of this estate to suppose himself to be entitled to a compensation of $3,000, which he paid himself September 18, 1878, less than six months after the date of the assignment. These assignees were allowed by the referee the same commissions which the most vigilant trustees are allowed by law. ($6,076.28, live per cent on the amount collected.) They might well have been charged with compound interest, but were only charged with simple interest. The defendants might well have been charged with the costs of this litigation, but instead of that they were charged against the fund. These defendants have been most liberally treated by the court below; unless it should be held that such trusts are to be administered for the benefit of the assignees, instead of for the benefit of the creditors.

The judgment is affirmed, with costs against the appellant, personally.

Hardin, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs, against the appellant personally.


author: Follett, J.

text:
    WILLIAM CHURCH, as Overseer of the Poor of the Town of Burlington, Appellant, v. JOHN FANNING, Respondent.

      Overseer of the poor — may receive cm assignment of a claim as indemnity from a person who is chargeable to the pvblie for expenses incurred during her sickness and in her burial — he may receive and enforce in his official capacity a claim for wages assigned to him.

    One Bridget Rice, while employed by the defendant at weekly wages as a domestic, was taken sick in March and died on the thirteenth of the following April. As she had no property, other than the amount due to her for wages from the defendant, and as he neither paid nor properly cared for her in her sickness, she became a town charge, and the plaintiff, as overseer of the poor, was compelled to expend, legally and necessarily, the sum of fifty-seven dollars and eighteen cents in caring for her during her last sickness and in her burial. After she became chargeable to the town she assigned to the plaintiff the amount due to her from the defendant for the purpose of indemnifying him in his official capacity, so far as she could, for such expense as he might be put to in her behalf.
    Upon the trial of this action, brought by the plaintiff, as overseer of the poor, the referee found that the defendant was indebted to Bridget, in March, 1885, in the sum of $180.50, but held that the plaintiff, in his official capacity, acquired no title to the cause of action, and had not legal capacity to maintain this action.
    Held, that he erred in so doing.
    That it is not against public policy for a poor person suddenly taken sick and chargeable upon the public to indemnify, so far as she may be able, the public authorities against expenses incurred on her account.
    That it was the duty of the plaintiff to accept from Bridget Rice indemnification for the expenses incurred in her care, in so far as it could be fairly and justly done, and that at common law he had a right to enforce by action a chose in action so received.

      Appeal from, a judgment dismissing the complaint, entered in Otsego county, upon the trial of this action by a referee.

      H. M. Townsend, for the appellant.
    Z. B. Henry, for the respondent.
   Follett, J.

This is an appeal from a judgment of the Supreme Court dismissing the complaint with costs, entered upon the report of a referee. During four years prior to March, 1885, Bridget Rice had been employed by defendant at weekly wages as a domestic in defendant’s family, in the town of Burlington. In this month she was taken very sick, of which sickness she died April 13, 1885. She was without property, except the amount due her from defendant, who neither paid nor properly cared for her in her sickness, and she became a legal charge upon the town of Burlington. The plaintiff, as overseer, legally and necessarily expended fifty-seven dollars and eighteen cents in caring for her during her last sickness and in her burial. After she became chargeable to the town she assigned to the overseer of, the poor the amount due to her from defendant, for the purpose of indemnifying the plaintiff in his official capacity, so far as she could, for such expenses as he might be put to in her behalf. These facts are found by the referee, and he also found that defendant was' justly indebted to Bridget Rice, March 26, 1885, in the sum of $180.50, but held that the plaintiff, in his official capacity, acquired no title to the cause of action, and had not legal capacity to maintain an action for the recovery of said demand. This position cannot be maintained. It is not against public policy for a poor person, suddenly taken sick and chargeable upon the public, to indemnify, so far as she is able, the public authorities from expenses incurred on her account. It is not only not against public policy, but is a meritorious transaction, to be commended and not condemned. Had this poor person come in possession of a sum of money or an article of property while being cared for by the overseer, can it be doubted that if she had voluntarily transferred the money or property to the overseer, for the purpose of indemnifying him, that he would have acquired title to the money or property in his official capacity, and would have been liable to account for it to his town ? Had this debt been evidenced by the defendant’s note, and Bridget Rice had voluntarily, without fraud or undue influence, transferred it to the overseer for the purpose of indemnity, we think he could have maintained an action thereon, and so in this case the plaintiff acquired a good title, as against the defendant, to this debt. As a general rule, all public officers (though not expressly authorized by statute) have capacity to sue commensurate with their public trusts and duties. (Supervisors v. Stimson, 4 Hill, 136; Looney v. Hughes, 26 N. Y., 516; People v. Supervisors, 32 id., 477.) We have no doubt that it was the duty of this officer to accept from Bridget Rice indemnification for the expenses incurred in her care, in so far as it could be fairly and justly done, and that at common law he has a right to recover by action a chose in action so received.

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

Hardin, P. J"., and Boardman, J., concurred.

Judgment reversed and new trial ordered before another referee, with costs to abide the event.


author: Follett, J:

text:
    MARGARET SULLIVAN, as Administratrix, etc., of MICHAEL SULLIVAN, Deceased, Respondent, v. THE TIOGA RAILROAD COMPANY, Appellant.

      Action by an administrator to recover damages for the negligent hilling of his intestate— the fact that no bond was filed on the issuing of the letters cannot be set up as a defense to the action — when an employee of a company owning and controlling a station-yard, is not a co-employeeof an engineer in charge of alocomotive of another company entitled to use the yard.

    For a year before December S, 1883, Michael Sullivan, the plaintiff's intestate, was employed by the Erie railroad to shovel ashes from a pit thirty feet long, four feet wide and two and a-half feet deep, situated seventy feet south of a turn-table in the yard of that company at Elmira. Before beginning to shovel from the pit the ashes, which were dumped therein from the locomotives, water from a hydrant was turned upon the ashes to cool them and enable the shoveler to handle them readily, which, on the day above stated, developed so much steam that it was difficult, if not impossible, for Sullivan, who was shoveling ashes from the pit, to see an approaching locomotive for any considerable distance, or for the employees on the locomotive to see Sullivan until very near the pit. While Sullivan was leaving the pit on that day he was run over hy one of the defendant’s locomotives, sustaining injuries which caused his death twelve days thereafter. Upon the trial of this action, brought hy the plaintiff, as the administratrix of Sullivan, to recover the damages occasioned by his death, the defendant claimed that the plaintiff was not the legal administratrix of Sullivan, because of the omission of the surrogate to require, and of the omission of the plaintiff to file, a bond pursuant to the provisions of section 2667 of the Code of Civil Procedure.

      Held, that as the surrogate had jurisdiction to grant the letters upon the decedent’s estate, his omission to require, and the plaintiff’s omission to give, a bond did not render the letters void ab initio.

      Bloom v. Burdick (1 Hill, 130); Lawrence v. Parsons (27 How., 26) followed.
    That the plaintiff was authorized to maintain the action, and that the letters could not he questioned in such action,'because of the omission to give a bond until the surrogate’s action was reversed on appeal or the letters were revoked by a proceeding brought for that purpose.
    Code of Civil Procedure (§ 2591), Carroll v. Carroll (60 N. Y., 121); Sullivan v. Fosdick (10 Hun, 173) followed.
    The acting superintendent of the Erie railroad testified that, hy the rules, employees on locomotives were required to ring their bells while moving in the yard, and several other witnesses testified that it was the custom to ring /• the hells upon locomotives when approaching the ash-pit. The employees on the locomotive, who were accustomed to daily run this locomotive over the ash-pit to the turn-table, and who, when they saw steam, knew that some person was at work in or about the pit, testified that they saw steam arising from the pit on the day in question. The evidence as to whether or not the bell on the locomotive was rung as it approached the pit was in direct conflict.

      Held, that it was not error to permit the plaintiff to show that it was the custom of the station-yard for the hells of locomotives to be continuously rung while approaching the ash-pit, and that, on the occasion in question, the locomotive ran towards the pit at a greater than the usual rate of speed.
    That it was for the jury to say whether the defendant’s employees were guilty of negligence, and whether the intestate was free from contributory negligence.
    The defendant’s line terminated at Elmira. The Erie road owned and controlled the yard, and when the defendant’s locomotives were in it the servants employed on them were under the exclusive control of the officers of the Erie railroad, who directed how locomotives should he run, at what speed, what precautions should he used and what signals given.

      Held, that the plaintiff’s intestate and the defendant’s employees on the locomotive were not co-servants.
    The authorities bearing upon this question, collated and considered by Follett, J.
    Appeal from a judgment in favor of tbe plaintiff, entered at the Chemung Circuit upon the verdict of a jury, and from an order denying a motion made for a new trial at Special Term upon a case and exceptions.

      Sylvester Taylor, for the respondent.

      David C. Robinson, for the appellant.
   Follett, J:

Appeal from a judgment entered upon a verdict, and form an order denying a motion for a new trial, made at Special Term, on a case.

In the yard of the Erie railroad, at Elmira, seventy feet south of the turn-table, there is an ash pit thirty feet long, four feet wide and two and one-half feet deep, sunk in the ground between the rails of a track leading from, the main track to this turn-table, into which pit ashes are dumped from locomotives. For a year before December 5, 1883, Michael' Sullivan was employed by the Erie railroad to shovel ashes from this-pit to a car standing beside the pit, for removal. Before beginning to shovel, water from a hydrant was turned on to the ashes to cool them and enable the shoveler to handle them readily, which, on the- occasion in question, developed so much steam that it was difficult, if not impossible, for Sullivan to see the approaching locomotive for. any considerable distance, or for the employees on the locomotive to see Sullivan until very near the pit. December 5,1883, in the forenoon, Sullivan, while leaving the pit, was run over by one of defendant’s locomotives and injured, and twelve days thereafter he died. This action is for the recovery of damages, under sections 1902 to- 1905 of the Code of Civil Procedure.

It is alleged in the complaint that the engineer in charge of the locomotive was negligent (1) in running the locomotive too fast as it approached the ash pit; (2) in not warning Sullivan of the approach of the locomotive, by ringing- the bell or by sounding the whistle. The defenses interposed are: (1.) That plaintiff is not the legal administratrix of decedent’s estate, because of the surrogate’s omission to require and of the omission of the plaintiff to give a bond, pursuant to section 2667 of the Code of Civil Procedure. (2.) That defendant’s employees in charge of its locomotive were not negligent. (3.) That decedent negligently failed to discover the approach of the locomotive, and thereby contributed to his injury. (4.) That decedent’s death resulted from his refusal to permit an immediate amputation of his leg. (5.) That defendant’s employees in control of its locomotive, and decedent, were co-employees.

The surrogate having jurisdiction to grant letters upon decedent’s estate, his omission to require, and the plaintiff’s omission to give a bond, does not render the letters void ab initio (Bloom v. Burdick, 1 Hill, 130; Lawrence v. Parsons, 27 How., 26), and by them the plaintiff is authorized to maintain this action, in which the letters cannot, for the lack of a bond, be questioned until reversed on appeal or revoked by a proceeding brought for that purpose. (Code Civil Pro., § 2591; Carroll v. Carroll, 60 N. Y., 121; Sullivan v. Fosdick, 10 Hun, 173; Lawrence v. Parsons, supra; 1 Will. Ex. [6th Am. ed.] book 6, chap. 1, p. 550.)

"Were the employees in charge of the locomotive negligent? Some of the witnesses testified that the locomotive approached the ash-pit at the rate of six to ten miles per hour, and others at the rate of four to six miles per hour. A civil engineer, called by defendant, testified that a person in the ash-pit could see a locomotive approaching from the south for three hundred and twenty-five feet, and it would seem to follow that persons on the locomotive could see the ash-pit for the same distance. The employees in charge of the locomotive testified that they saw steam arising from the pit. It appears that it was the daily custom of these employees to run this locomotive over the ash-pit to the turn-table, reverse and return to the main track. When they saw the steam they knew that some person was at work in or about the pit.

The acting superintendent of the Erie railroad testified that, by the rules, employees on locomotives were required to ring -their bells while moving in the yard. Several witnesses testified that it was the custom to ring the bells upon locomotives when approaching this ash-pit. Several persons employed in the-yard, and who were near to the scene of the accident, testified that they heard no bell or warning, and one that he was looking at the locomotive and that the bell did not ring. The employees on the locomotive testified that the bell was rung. Under the evidence and circumstances it was for the jury-and-not for the court to determine whether the employees in charge of the locomotive negligently injured the decedent. And so, without calling special attention to the circumstances disclosed by the evidence, it was a question of fact whether the decedent negligently failed to discover the approaching locomotive in time to escape.

At the close of the evidence the court ruled that it was for the jury to determine whether decedent was negligent in refusing to permit an immediate amputation of his leg, and whether his death was caused by the injury or by his refusal to permit an immediate amputation. Subsequently the jury were instructed in accordance with this ruling. These questions being questions of fact, and having been fairly submitted to the jury, this court cannot, under its well-settled rules, set aside the verdict as against the weight of evidence in the face of the decision of the experienced trial judge, who refused to do so upon a case.

Were defendant’s employees in charge of its locomotive and the decedent, employed by the Erie railroad, co-employees % The defendant, at the close of the evidence, insisted that they were, and moved for a nonsuit upon this and other grounds, which was refused. The defendant requested the court to charge that if the jury found that decedent and the employees in charge of the locomotive were at the time of the accident tmder the control of the superintendent of the Erie railroad they were co-employees, and the plaintiff could not recover. This the court refused, and left it to be determined by the jury, as a question of fact, whether they were co-employees, saying, if they were, the plaintiff could not recover.

Presumptively, the servants of two independent masters are not co-servants. The exact relations existing between the defendant and the Erie railroad are not disclosed by the evidence. It does appear, by undisputed evidence, that the defendant’s line terminated at Elmira; also that the Erie railroad owned and controlled the yard, and that when defendant’s locomotives were in it the servants employed on them were under the exclusive control of the officers of the Erie railroad, who directed how locomotives should be run, at what speed, what precautions should be used and signals given.

The cases cited may be conveniently divided into two classes’. First, those in which the servants of a railroad corporation owning the structures and solely controlling the manner of moving the trains of both corporations are negligently injured by the servant of a railroad corporation having the right to use the structures under a contract. In Warburton v. The Great Western Railway Company (L. R. 2 Exch., 30; S. C. 4 H. and C., 695), the plaintiff was employed by the L. N. W. Railway Company, as a porter at its station. The defendant used this station under a contract with the L. N. W. Railway Company, by which the latter corhpany controlled the movement of defendant’s trains while at the station. The plaintiff was injured by the negligence of one of defendant’s engineers. It was held that the engineer and the porter were not co-employees, and that defendant was liable. In Catawissa Railroad Company v. Armstrong (49 Penn. St., 186), the defendant, (plaintiff in error), ran its trains for some miles over the track of the P. and E. Railroad Company, subject to the rules and regulations of the latter corporation. Plaintiff’s intestate was a brakeman, employed by the P. and E. Railroad Company, and was negligently killed by defendant’s conductor. It was held that the brakeman of the P. and E. Railroad Company and the defendant’s conductor were not co-employees, and a recovery was sustained. In 1868, the rule in Pennsylvania was changed by the Legislature. (Mulherrin v. The D., L. and W. R. R. Co., 81 Penn. St., 366.) In Swainson v. The North Eastern Railway Company (L. R. 3 Exch. Div., 341), the defendant’s station and that of the Great Northern Railway Company abutted upon each other; each corporation owning two tracks running by the station. Trains entering into or departing from these stations, were governed by signals and points, worked by signalmen, who were members of the “Joint Station Staff.” The members of this staff (including the plaintiff’s intestate), were employed and paid by the Great Western Railway Company and wore its uniform, but defendant paid to the Great Western Railway Company one-half of the wages of the Joint Station Staff.- Plaintiff’s intestate, a signalman, and one of the joint staff, was killed by the negligence of an engineer of one of defendant’s trains. It was held that the signalman and the engineer were not co-employees, and the action could not be defeated on that ground.

The second class embraces cases in which the servants of a railroad corporation which uses, under a contract, the structures of another railroad corporation, are negligently injured by the servants of the corporation owning the structures and solely controlling the manner of moving the trains of both corporations. In Smith v. New York and Harlem Railroad Company (6 Duer, 225; affirmed, 19 N. Y., 127), the plaintiff’s intestate was an engineer in the service of the New York and New Haven Railroad Company, which ran its trains over some miles of defendant’s track. By the negligence of defendant’s switchman, plaintiff’s intestate was killed. The defendant, by the contract between the corporations, was bound to care for the track, and the switchman was under its exclusive control. It does not appear whether the trains of the New York and New Haven company were, while on defendant’s track, subject to its control, but such is so generally the custom that it may be safely assumed that they were. It was held that the engineer of the New York and New Haven Railroad Company and the defendant’s switchman were not co-employees, and a recovery was sustained. In Zeigler v. The Danbury and Norwalk Railroad Company (52 Conn., 543), defendant’s road and that of the S. Corporation connected and formed a continuous line. A train owned and operated by S. ran daily over defendant’s track, subject to the control of defendant’s officers. The plaintiff was a brakeman on this train, who was injured by the negligence of defendant’s conductor, while on defendant’s track. It was held that defendant’s conductor and plaintiff were not co-employees, and a recovery was sustained. Sawyer v. Rutland and Burlington Railroad Company (27 Vt., 370), is not distinguishable from Smith v. New York and Harlem Railroad Company, either in facts or principles. Roach v. The Fort Orange Paper Company (18 N. Y. W. Dig., 124; affirmed, 95 N. Y., 660), is not within either class of cases, because neither master exercised control over both servants at the time of the injury. In that case the injured servant was employed and solely controlled by the railroad corporation, and the negligent servant was employed and solely controlled by the defendant. So in Svenson v. Atlantic Mail Steamship Company (1 J. and S., 277; affirmed, 57 N. Y., 108), the servants were employed by, and were serving different masters, and it does not appear that either master exercised, or had the right to exercise at any time, any control over both servants.

In Vose v. L. and Y. Railway Company (2 H. and N., 728) the recovery was had because the defendant negligently established defective rules, which was not the negligence of a servant, but of the principal. The following cases: The P., W. and B. Railroad Company v. State (58 Md., 352); Snow v. The Housatonic Railroad Company (8 Allen 441); Graham v. The N. E. Railway Company (18 C. B. N. S., 229) arose out of the neglect of the defendants to provide safe structures — master’s duties — whereby the servants of the corporations using the structures were injured. In Cruty v. Erie Railway Company (3 T. & C., 244), one of the judges expressed views not m accordance with the authorities above cited, which were not concurred in by the court, and a new trial was granted because the evidence did not show that defendant was negligent. Under the authorities, the plaintiff’s intestate and defendant’s employees in charge of the locomotive, were not co-servants, and this action cannot be defeated on that ground. The text writers support this conclusion. (Shearm. & Red. Neg., § 101; 2 Thomp. Neg., § 1013; Whart. Neg., § 231; Pierce, R. R., 370; 3 Wood’s Ry. Law, 1496; Wood’s M. and S. [2 ed.], 435; 2 Rorer R. R., 1205.)

It was not error to permit the plaintiff to show that it was the custom of the station yard for the bells of locomotives to be continuously rung while approaching the ash pit. It was shown that the corporation owning the yard, by a rule established, required, that the bells of locomotives moving in the yard should be rung. -Presumptively, the plaintiff’s intestate knew of the rule and ■ its- customary observance, and he had a right to rely upon the continuance of the observance of the rule. This evidence bore directly upon the question of whether decedent negligently contributed to his own injury. It was competent, upon this issue, to- permit the plaintiff to show that the locomotive, on this occasion, ran'- towards the ash pit at a greater than the usual rate of speed.

The judgment and' the'-order are affirmed, with costs.

Hardin, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.