author: Haight, J.

text:
    Mary Burns, as Administratrix, etc., App’lt, v. Edward A. Matthews, Resp't.

      (Court of Appeals,

      Filed May 21, 1895.)

    1. Master and servant—Insurers.
    Masters are not insurers against accidents and they ought not to have extraordinary and unexpected burdens imposed upon them.

      3. Same—Foreman.
    A foreman, having fifty men under him, cannot be expected to keep liiseye constantly upon every man and see that he does not step into a place of danger, nor can he be expected momentarily to think of every danger that may befall them.
    3. Same—Duty of servant.
    Bach servant is expected to have some judgment and care with reference-to the preservation of himself from danger, and of necessity much has to-be left to his care in this regard.
    Appeal from judgment of the general term of the supreme-court in the fourth judicial- department, entered upon an order which affirmed a -judgment in favor of defendant entered upon an order of the court on trial at circuit non-suiting the plaintiff, and also affirmed an order denying a motion for a new trial.

      S. Mack Smith, for app’lt;

      Edward O'Connor, for resp’t.

       Affirming, 66 St. Rep. 866.

   Haight, J.

This action was brought to recover damages for negligently causing the death of William Burns, the plaintiff’s intestate.

The accident occurred on the 24th day of June, 1892, by the caving in of the walls of a trench which Burns was digging for a sewer. The only negligence charged against the defendant is in failing to warn Burns not to work at the .particular place in the trench where he received his injury.

The circumstances are substantially as follows: ' Matthews, the? defendant, was engaged in constructing a sewer through Murray street in the city of Binghamton. James Pethcal was his foreman in charge of the work. The trench had been excavated'and curved from the mouth of the sewer north to a point where there was a manhole. Just north of the manhole the trench had been excavated to a depth of from eight to ten feet. The foreman then gave direction to the men not to dig it deeper until it was-curbed, and, at the same time, gave direction to the men who were engaged in that kind of work to curb the trench at that place. From that point north the trench had been partially excavated for a distance of fifty feet, varying from eight to one foot in depth until it approached the surface. Shortly after giving the order for the men to quit digging a heavy shower came up and all of the workmen upon the sewer quit work for the remainder of the day. The next morning at seven o’clock, the workmen, about fifty in number, assembled at the tool box, which stood near the manhole, Burns with the rest. ■ It was his first engagement upon this sewer. He had previously been in the employ of the defendant at work upon another sewer, and, having completed his work there, was transferred to this. The" foreman at the hour-named gave a general order to the men to go to work and each man started, selecting his own place in the trench in which to-work Burns and two others went north of the manhole and took positions in the trench and commenced work, Burns at the place-where the men the day before had been ordered to quit work until the curbing was placed. The evidence further tends to show that the foreman, at the time of giving the order, instructed thecurbers target their tools and curb the trench at that place, and that they started, to obey this instruction ; that the foreman then started down to the south end of the trench to take the names and time of the men, and whilst so engaged, and within a very few minutes thereafter, the accident occurred. There was one witness who testified that when he first saw the foreman he was standing by the manhole; that the witness saw Burns after he went to work ; that the foreman stood right by the manhole where Burns was working. Upon his cross-examination, however, he testified that the foreman was a couple of hundred feet south. He does not distinctly state that the foreman saw Burns go to work in the trench. All of the other evidence on behalf of the plaintiff tends to show that the foreman immediately started south after-giving the directions referred to, and we are of the opinion that, the evidence fairly construed is to the effect that the foreman did not see or know that Burns commenced work in the trench at the point of the accident. It further appears that the forman entered the trench at the point in question before the men were set at work ; that he took some tools out that were left therein, and that he saw no indications of weakness in the walls of the trench; that their practice was to curb as soon as the trench was from eight tO' ten feet deep, and that all of the trench had been curbed south of the manhole.

Had the foreman known that the walls of the trench were likely to give away it doubtless would have been his duty to have warned Bnrns, but.masters are not insurers against accidents and they ought not to have extraordinary and unexpected burdens imposed upon them. They are required to be careful' and prudent, and to exercise the care and caution over the men in their employ that careful and prudent men ordinarily exercise. A foreman, having fifty men under him, cannot be expected to keep his eye constantly upon every man and see that he does not step into a place of danger, nor can he, having the care of so many, be expected momentarily to think of every danger that may befall them. Bach man is expected to have some judgment and care with reference to the preservation of himself from danger, and of necessity much has to be left to his care in this regard. Burns was not set at work upon a dangerous machine about which he had no knowledge, but instead he was directed to dig a trench for a sewer. He had done such work before, and so far as appears was a man of reasonable intelligence and must have known something of the dangers .of working in deep trenches without curbing. He was at liberty to select his own place to work in the trench and he might have commenced where it was but a foot deep. He knew that curbing had been put in up to the manhole and that it must have been the intention of the foreman to curb north therefrom.

' Under the circumstances we are inclined to the view that it would not be just to charge the foreman with negligence in failing to warn the deceased, and that his death resulted from his own. want of care.

The judgment should be affirmed.

All concur, except Bartlett, J., who dissents on the ground •that Pethcal, the foreman, represented the defendant, the master, in such duties as the latter owed deceased for his safety and protection ; that there was a conflict of evidence as to whether the master discharged those duties and the plaintiff was entitled to go •to the jury.

Judgment affirmed.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    Elizabeth Blazy, Resp’t, v. Hector McLean, App’lt.

      (Court of Appeals,

      Filed May 21, 1895.)

    Cíosts—New triaA
    Where a new trial is awarded to the defendant as a matter of legal right for an error commited in rejecting evidence pertinent to the issues, the fact that the evidence, which the defendant gives upon the new trial, falls far short of substantiating his offer of proob does not render the case one Where the court of appeals should exercise its discretion in awarding damages by way of costs, upon its affirmance of the judgment.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon the .report of a referee.

      Cassius C. Davy, for app’lt;

      E. W. Gardner, for resp’t.

      Aff’g 59 St. Rep. 832.

   Gray, J.

This action was brought to compel the defendant to re-convey to the plaintiff certain real estate and to recover the value of the use thereof. Upon the first trial the plaintiff recovered judgment in her favor, which was affirmed at the general term ; but, upon" appeal to this court, it was reversed and a new trial was ordered of the issues. When the case was then before us, we felt compelled to order a new trial, because of the rejection of relevant evidence which had been offered by the defendant upon the trial. The question presented was whether a deed, absolute in form, was delivered by this plaintiff to the defendatit only as collateral security for the payment of a sum of $2,000, ■agreed to be paid to the defendant by the plaintiff’s husband and another, upon a contract for the purchase of a farm. The finding in the case was that the deed had been given as a collateral security and we said that there was no error in the finding. But the defendant had not been allowed permission to prove that the deed was delivered by the plaintiff and accepted by him as a complete and absolute transfer of the lot and for which he had agreed to allow $2,000 as a payment upon her husband’s contract. We-held that, under the pleadings and the issues between the parties, there could be no lawful objection to that evidence; which did not contradict or vary the written contract, but only showed performance. In other words, the agreement of the parties contracting to purchase the farm being to -pay $2,000 before the conveyance should be made and the plaintiff’s deed being given as security for their performance of that agreement, the proof offered to be made by the 'defendant simply went to show the immediate payment of the money through the acceptance of the plaintiff’s conveyance at that figure. Upon the new trial of the action the only evidence, which differed from that upon the first trial, was that which was given by the defendant under the offer which he had previously made and which had been rejected. The referee, before whom this trial was had, again, has decided in favor of the plaintiff and the general term has affirmed the judgment entered upon his report. In my opinion, there is not the slighest reason for disturbing that judgment. The referee was not only'justified in inferring from, and in finding.upon, the wholé evidence that the plaintiff’s deed was not given by her, nor accepted by defendant, as an absolute deed; but even upon the evidence given by, ;<or on behalf of, the defendant, I do not see that he could have decided otherwise. The defendant's own evidence was very insufficiently corroborated, as to the execution and delivery of the deed, and it was distinctly contradicted by several witnesses. Eor was the action tried upon the theory of fraud, as the appellant claims; but, simply, upon the allegations of the plaintiff that her -deed was delivered as collateral security for the performance of the main contract and, as that had been rescinded by the parties, that she was entitled to a re-conveyance of the premises deeded' by her. ,

While it is true there is but little merit in the defendant’s appeal, I do not think that it is a case where we should exercise our discretion in awarding damages by way of costs, upon our affirmance of the judgment. The new trial was awarded to’ the defendant as a matter of legal right, for the error committed in rejecting evidence pertinent to the issues; and while I agree with the court below that the evidence, which defendentgave upon the new trial, féll far short of substantiating his offer of proof, the circumstances .are such as to make the ordinary costs sufficient. • There has actually been no delay caused by the defendant in the procedure of the cause to this court, whatever it has been in reaching a final determination of the issue.

The judgment should be affirmed, with costs.

All concur, except Haioht. J., not sitting.

Judgment affirmed.


text:
    The People, Resp’t, v. Richard Leach, App’lt.

      (Court of Appeals,

      Filed June 4, 1895.)

    1. Trial—Charge.
    The fact that the trial court has commented upon the evidence, and, perhaps in some expressions, indicated the bent of his own mind, is not a subject for adverse criticism, so long as he did not invade the province of the jury and withdraw from them the consideration of any facts, or lead them to suppose that their determination was not wholly with them.
    3. Homicide—Proof.
    The evidence, in this case, was held sufficient to sustain the inference drawn by the jury from it, of the defendant’s having deliberately murdered the deceased.

      Appeal from judgment of the court of oyer and terminer of the city and county of New York, entered upon a verdict, convicting the defendant of the crime of murder in the first degree.

      Hugh O. Pentecost, for app’lt;

      John D. Lindsay, for resp’t.
   Gray, J.

The defendant was charged in the indictment with having murdered one Mary H. Leach, whose real name was Mary Hope Newkirk, by cutting and stabbing her in the neck with ae knife, on the' 18th day of November, 1894. Being tried upon the indictment, in the court of oyer and terminer held in arid for the city and county of New York, he was found guilty by the verdict, of a jury of the crime of murder in the first degree; and thereupon he was sentenced to be executed. From the judgment of conviction thp defendant has appealed to this court.

There were no exceptions taken to the rulings of the court' during the trial and the only point which has been urged upon our attention by his counsel is an exception to that portion of the charge to the jury wherein the trial judge, as lie says, marshalled the evidence against the defendant. A review of the evidence satisfies us that the verdict of the jury was well supported and was the only one which fair and reasonable mihds could reach. The defendant was a man of about, thirty-two years of age at the time of the killing and had been living with the deceased, in illicit relations, in an apartment at No. 412 West 49th street in the city of New York.. On the evening of November 17th, 1894, they were in the rooms of some, friends in the same building. A. quarrel seems to have-sprung up between them, because of some jealousy on her part, occasioned by his manner toward another, woman who was presetik In consequence, they left and returned to their own apartment.. About two o’clock in the morning of November 18th, the defendant walked into the station .house of the 22d police precinct, only partly dressed and carrying his shoes in his hands.. There-was a cut on the left side of his neck and more or less blood was upon his clothes and person. According to the testimony of the captain and sergeant of the police and of the doorman of the station house, the defendant stated to each that he had killed the deceased; first mentioning her as his wife and then stating that he was not married to her. He told the captain where he would find the deceased. He said to the sergeant and to the doorman that he had sat by the side of the women until she was dead. To the doorman be said that over an hour had passed since he had killed her and, when asked with what he had cut himself and his-wife, he produced from his pocket a knife, with an open and bloodstained blade. Upon going to the apartment of the defendant, the body of the deceased was found upon the bed, entirely naked, except that the lower part was covered by a bed coverlet. The-body lay upon its right side and upon the edge of the bed and a. handkerchief was clinched in the left hand. Upon the left side of her neck was a deep, long and incised wound about four and one-half inches in length, ragged upon its edges, which commenced from behind the- ear and varied in depth; presenting the appearanee of several wounds merged into one. The jugular vein had been severed by the out and death had been caused by the resulting hemorrhage. Blood covered the left side of the bed, pillow slips, bed cover and much of the floor. There was no evidence of any struggle having taken place in the room. There were found a slate and a sheet of paper upon the table in the sitting room of the apartments, upon which the defendant had written in an incoherent and illiterate manner. The contents are not material, nor of a nature to be recited. He stated his love was dead; that he was almost dead and that she had been raped by her uncle. The uncle was charged with being the cause and with having long abused the deceased. The other statements read like the maudlin ravings of a drunken man; with some possible notion of throwing the blame for the act upon the conduct of the uncle of the deceased.

The defendant was examined as a witness in his own behalf and according to his testimony the deceased had committed suicide while affected by whiskey, which she had drunk to excess, after returning to their apartment, and also by his threat to leave her because of her habits. He testified that, upon discovering that the deceased bad killed herself in the adjoining room, he endeavored to take his own life and that while in a dazed condition he had gone to the police station. He explained that he did not send for a doctor, because he found her dead and for the reason that he would not give himself away because he had been harsh to her. He denied remembering having told the police officer that he had killed the woman. He testified that the deceased had made previous attempts to commit suicide; that she had admitted having had continuous illicit relations with her uncle and had been intimate with another man and that, notwithstanding this knowledge, he continued to live with her.

Sufficient of the evidence has been referred to. The facts are not disputed as to the quarrel, the death, and that the defendant’s knife had caused the wound. The conflict was as to the mode ;in which death came to the woman and which the accused stated to have been by the woman’s own hand and a further conflict was in his denial that he remembered his admissions to the officers. That conflict in the evidence was for the jury to determine. Thev were to pass upon all the circumstances of the case and the degree of credibility which they should attach to the defendant’s story. If they believed the evidence for the prosecution, the deceased had been killed by the defendant as the result of a quarrel, which took place between them in the evening. That evidence showed, or tended to show, that the defendant had stabbed the deceased in the neck with his knife an,d the nature of the wound and of the weapon was such as to justify the inference that the stabbing had been deliberately done and with the design to effect her death. Many facts combined to render incredible the story of the defendant. There was the writing found upon the slate and sheet of paper, in which he speaks of her death and yet does not suggest that she had committed suicide; which would have been a most natural statement to make, especially as he attempted, or pretended to attempt, it himself. When at the station house and in the hospital, where he was for nearly three weeks, while receiving medical care for his wound, and when taken thence tq the police court to answer to the charge, he makes no statement that the deceased had killed herself. ¡Nor does he make it to any person, until his attorney was preparing for his trial. Had such been the fact, it is inconceivable that he should not have stated it, either when he went to the station house to tell of the occurrence, or at some time before he confided it to his attorney. It was the défeudant’s knife which had caused the wound upon the deceased and the situation of the wound itself as well as the nudity and the position of the body of the deceased, were circumstances which militated against the probability of the wound having been self-inflicted and with suicidal intent.

Without commenting further upon the evidence, it is sufficient to say that the inference drawn by the jury from it, of the defendant’s having deliberately murdered the deceased was just and reasonable.

The criticism upon the charge of the learned trial judge is, not that he had improperly stated the facts but, to quote the language of the defendant’s counsel, that the evidence was marshalled a little against the defendant, the way the evidence was put together. When the defendant’s counsel, upon the close of the charge, had excepted to that portion which consisted of the marshalling of the evidence, the trial judge, asked him to point out any fact that was improperly stated, in order that he might correct it, saying, “if I have improperly stated'any fact I-wish to correct it.” In response to the remark of the defendant’s counsel that the evidence was “marshalled" against the defendant, the trial judge replied, and these remarks, although not the subject of an exception have been pressed upon our consideration’as having prejudiced the minds of the jurors and as disabling them, as the expression of an opinion by the trial judge, from reaching a fair verdict, “if the facts are against the defendant, that is not my fault; it is unfortunate but I cannot help it." The charge was a clear, logical and fair statement of the facts in evidence before the jury; and they were instructed that it was for them to find from those facts whether or not the defendant was guilty. They were cautioned against being influenced by the opinion of the court and were admonished that it was for them to draw the conclusions from the evidence. It was the duty of the trial judge to present the evidence to the jury and that would have been unintelligently done, if he had not presented them in what seemed their logical order, or in the natural sequence of events That he should have commented upon the evidence, and, perhaps in some expressions, have indicated the bent of his own mind, is not a subject for adverse criticism, so long as he did not invade the province of the jury and withdraw from them the consideration of any facts, or lead them to suppBse that their determination was not wholly with them. For the trial judge, therefore, to answer the criticism of the defendant’s counsel as he did was natural and quite unobjectionable. The whole case, as made by the evidence given in behalf of the prosecution ana of the defendant, is bare of any fact or feature to raise it above the level of a vulgar crime, committed as the result of a drunken brawl. That the defendant may have been influenced to the commission of his atrocious crime by resentment at the woman’s habits of drunkenness and immorality, does not tend to relieve the case of its brutal features. He had continued to live with her as his mistress, after receiving her confessions of continuous illicit relations with her uncle. It would be difficult to have arrayed the facts in evidence in any way before the jury, without their suggesting by their own force the willful commission of a disgusting and brutal crime; for the commission of which there were shown to have been several motives and the opportunity, and where all the circumstances pointed to the defendant’s guilt.

We see no occasion to interfere with the execution of the judgment of death. The defendant has had a fair trial and has been convicted upon evidence which should satisfy the fairest mind as to his guilt. The' judgment appealed from by him should be affirmed.

All concur. Judgment affirmed.


author: O'Brien, J.

text:
    Thomas Conville, App’lt, v. Sheridan Shook et al., Resp’ts.

      (Court of Appeals,

      Filed January 15, 1895.)

    Account stated—Impeachment. '
    A settled account may be impeached and readjusted by proof of unfairness, fraud or mistake in law or fact; but it is not necessary in such cases to open the whole contract, where the mistake can be corrected and the rights of the parties readjusted as to such a mistake, without so doing.
    Appeal from judgment of the general term of the superior court of the city of Hew York, entered upon an order, which affirmed a judgment in favor of defendants entered upon the report of a referee dismissing the complaint.
    This action was brought to recover a certain percentage of the profits of defendants’ business of brewing and selling ales and porter, which plaintiff claimed to be due to him as part of his compensation for his services as a brewer under a written contract with defendants.

      Ira Shafer, for app’lts;

      Gratz Nathan, for resp’t.
   O'Brien, J.

The plaintiff entered into ’the services of the defendants as a brewer for five jmars from March 1, 1876, under a written agreement which secured to him a salary of $3,600 per year, payable monthly, and in addition thereto ten per cent, of the net profits of the business, payable at the end of each year. When this agreement was about to terminate it was continued for five years more bv another writing signed by the parties and bearing date August" 6th, 1Í380. The plaintiff during all the ten years was paid his salary and also at the end of each year except the last, what was supposed to be his portion of the net profits of the business. The present controversy relates entirely to the plaintiff’s claim for the ten per cent, net profits for the year ending March 1, 1886. The cause of action stated in the complaint is a claim for the plaintiff's proportion of the net profits for that year alleged to amount to nearly seven thousand dollars. It appeared from an inspection of the defendants’ books on their.face that there was due to the plaintiff for his proportion of the net profits for the year a substantial amount, though much less than he claimed. But the defendants in their answer allege in substance that during all the previous years while the contract was in force there had been paid to the plaintiff various sums of money as and for his proportion of the net profits of the business' for those years. That the amounts so paid were computed by the bookkeeper in the defendant’s employ, who had the sole charge of that branch of the business, and by the mistake of the bookkeeper in the manner of keeping the accounts were in excess of the sums justly due to the plaintiff for his share of the net profits, and that the mistake was not discovered by the defendants until after the contract had terminated. The defendants’ contention was that the books were so kept that the net profits of the business were made to appear much larger than they actually were, and the plaintiff’s share thereof correspondingly increased, so that the sums paid in excess of what should have been paid equaled or exceeded all just claims which the plaintiff had for his share of the profits for the last year.

This was the issue in the case, and, from its nature, it was one of fact. On the trial before a referee this issue was found in favor of the defendants. He reported that during the previous years the plaintiff had been overpaid, and that the aggregate of such over-payments exceeded the plaintiff’s claim for that year. Judgment was ordered in favor of defendants, which has been affirmed on appeal. Although the dispute was largely in regard to a question of fact, yet the contention of both sides rested upon what appeared in the defendants’ books, so that, unless it can be shown that the learned referee adopted some, erroneous legal principle as a basis for the inquiry, the general result at which he arrived ought not to be disturbed.

The fundamental objection which the plaintiff makes to the action of the referee rests upon the proposition that it was error to open the settlements made by the parties in the previous years.' Those settlements were the result of a mistake on the part of the bookkeeper which the defendants did not discover until about the time of the commencement of this action. In such a case the rule is well established that a settled account may be impeached and readjusted by proof of unfairness, fraud or mistake in law or fact. Theisser v. Denison, 10 N. Y. 68 ; Bruen v. Hone, 2. Barb. 586; Philips v. Belden, 2 Edw. Ch. 1 ; Welsh v. German Am. Bank, 73. N. Y. 424; Carpenter v. Kent, 101 id. 591 ; Samson v. Freedman, 102 id. 699; Wheadon v. Olds, 20 Wend. 174; Malcolm v. Fullarton, 2 Term R. 645 ; First Nat. Bank of Omaha v. Mastín Batik, 2 McCrary, 438. It may not be necessary in such cases to open the whole account, but the mistake can be corrected and the rights of the parties readjusted as to such mistake, and that is all that was done in this case.

In changing the accounts appearing upon the books in such a way as to reduce the net profits of the business during" the period of plaintiff’s service, as these profits were shown by the books as actually kept, the learned referee adopted no erroneous principle, but, on the contrary, acted upon rules and principles obviously correct and just. The changes made were substantially these: hiearly $5,000, which had been paid out during the period covered by the inquiry for taxes and interest, had been entered by the bookkeeper to stock account, anh thus the assets of the firm were to that extent increased, whereas it was really one of the •expenses of the business, and should have been charged in the expense account, and, in ascertaining the total net profits for the ten years, it was so charged by the referee.

The referee also found that during this period the firm had expended over $14,000 for repairing casks, which sum hadj been credited to cash account, and thus that part of the partnership property which consisted of casks was correspondingly increased. All new casks when purchased were properly entered in the stock account, since they - increased the property on hand, but •expenditures for repairs was really a disbursement incident to the conduct of the business and to the extent of what was- paid out for that purpose diminished the aptual net profits.

Something over $8,000 was charged off by the referee on account of bad debts and for rebates from the regular prices at which sales were entered in the books in certain special cases. The proof was sufficient to justify the finding of the referee -that the debts so charged, off were uncollectible and in fact worthless. It appeared that, the firm had adopted the practice, during the years oi: plaintiff’s service, of making allowances to their customers, or some of them, in the form of rebates from the scheduled prices at which their goods were sold. The percentage allowed in such cases varied as to different customers according to circumstances. One of the defendants had exclusive charge of this branch of the business. There was no general rule established by uustorn or by contract on the subject, and the allowances were necessarily arbitrary according to his best judgment in each case as the special circumstances seemed to render necessary, expedient or proper.. The only criticism made by the plaintiff in regard to this item is not that the allowances were not actually made, but that they were excessive. It is not claimed that the defendant who had charge of the matter acted "otherwise than in good faith and according to his best judgment. The practice is not unusual in other departments of business, and in recognizing the custom ,-and the acts of the parties in that regard in this case, the referee ■did not sanction any illegal or erroneous principle.

In arriving at the result, the referee charged off from the cost ■of the original plant ten per cent, in each year for depreciation,which reduced the assets about $29,000. The plant had been «carried for the ten years upon" the books at the original cost, and the proof in regard to the usual custom of business and the propriety of its application to this case warranted the decision of the referee in respect to this item embraced m the controversy. There is some dispute as to manner of taking the inventory adopted by the defendants for the last year. The contract with the plaintiff provides that it should be made up in the same way as in previous years. In these years it was taken at the estimated selling price. It was taken for the last year at the cost price, but there was credited to the plaintiff his estimated share of the profits which would . result from the sale of the goods then on hand, and the referee-has found that this was a substantial compliance with the contract. Whether the inventory was correct or not was largely a question of fact. It may be that it was not taken strictly according to the contract, but if so the error could not change the result. The referee has found that, after correcting the errors in the accounts, before referred to, there would be a balance against the plaintiff,, resulting from over-payments, of about $1,000, and this amount would,more than offset any additional share of the net profits that-could possibly be awarded to the plaintiff if the inventory was adjusted according to his own contention.

Moreover, the referee refused to allow the defendants in the account nearly $8,000 for rents of the property upon which the business was conducted, and which had not been charged upon the books to the expense account. The defendants owned the property, and the - plaintiff in receiving the payments had the benefit of it to the extent of his interest in the net profits. The defendants in making up the account credited themselves with a sum equal to ten per cent, upon the value of this property for each year. The referee 'declined to allow the claim upon the ground that there was no evidence before him to show that such was the proper sum to be allowed, holding that proof of the fact that the defendants owned the property, and its value was not sufficient to warrant any deduction from what otherwise appeared to be the net profits on that account. This ruling was certainly sufficiently favorable to the plaintiff, and it is quite possible it might be changed upon a new trial.

On the whole w.e think that the controversy was properly disposed of by the referee, and that the judgment should be affirmed,, with costs.

All concur, except Bartlett, J., dissenting, and Haight J.p not sitting.

Judgment affirmed. -


author: Peckham, J.

text:
    John Charlton et al., Resp’ts, v. Cora I. Scoville et al., App’lts.

      (Court of Appeals,

      Filed January 15, 1895.)

    Appeal—Court op appeals.
    Where, in action on a contract, a counterclaim is extinguished by the-judgment in favor of plaintiff, the amount of the counterclaim may be-added to the plaintiff's judgment for the purpose of discovering the real-amount in controversy between the parties.
    Appeal from a judgment of , the general term of the supreme court in the fifth judicial department, entered upon an orden, which modified, and affirmed as modified, a judgment in favor of plaintiffs, entered upon a decision of the court on trial at special term.
    This is an action brought to foreclose a mechanic’s lien filed by the plaintiffs against the premises owned by the defendant QoraI. Scoville, in the village of Tonawanda, in the county of Brie, in this state.' The defendant Charles H. Scoville is the husband and agent of the other defendant, and acted as her agent in the matters hereinafter spoken .of. The answer of the defendants denied many of the allegations contained in the complaint and set up a counterclaim amounting to between six and seven hundred dollars. The action was tried at the Brie special term in equity, held at Buffalo, and the following are some of the facts found by the court upon such trial: On the 26th of August, 1890, the plaintiffs entered into a contract with the defendant Charles H. Scoville to do certain work towards the building of a house upon a lot owned by the defendant Cora I. Scoville, in the village of Tonawanda, in this state, for the sum of $3,980, upon the terms stated in the contract. In the contract executed by the parties-were subdivisions 4 and 12, which read as follows:
    4th. The contractors shall, within twenty-four hours after receiving written notice from the architect to that effect, proceed to remove from the grounds or building all materials condemned by him, whether worked or unworked, or take down all portions of the work which the architect shall condemn as unsound or improper, or as in way failing to conform to the drawing and specifications, and to the conditions of this contract. The contractors shall cover, protect and exercise due diligence to secure the work from injury, and ail damage happening to the same by their neglect shall be made good by them.
    12th. Should the contractors at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials, of the proper quality, or fail in any respect to prosecute the-work with promptness and diligence, or fail in the performance-of any of the agreements on their part herein contained, such refusal, neglect or failure being certified by the architect, the owner shall be at liberty, after three dáys written notice to the contractors, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractors under this'contract; and if the architect shall certify that such refusal, neglect or failure is sufficient ground for such action." the owner shall also be at liberty to terminate the employment of the contractors for said work arfd to enter upon the premises and take possession of all materials thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractors they shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing. the work, such excess shall be paid by the owner to the contractors, but if such expenses shall exceed such unpaid balance, the contractors shall pay the difference to the owner. The. expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work and any damage incurred' through such default, shall be audited and certified by tile architect, whose certificate thereof shall be conclusive upon the parties.
    The plaintiffs sublet the carpenter work to one William Stokes who again sublet the same to. his brother Michael, who with several carpenters commenced work on the premises on the 22nd day •of September, 1890, and continued to work thereon until September 30, 1890, and during that time neither of the plaintiffs gave ■any personal attention to the work and William Stokes but slight .-attention. On September 30th the frame of the building up to the top of the second story had been erected and certain materials used in erecting the structure had been delivered upon the premises by the employees .of the plaintiffs. A large part of the work •done on the building up to this time was not iu accordance with "the plans or specifications, and the materials used were improper ¡and not in accordance with the same, and in order to remedy these defects it' would be necessary to take the building down. On ■the 30th of September the architect, assuming to act under the provisions of the contract, gave to the defendant Charles H. Scoville a certificate in writing that the carpenter work was not being done in accordance with the plans and specifications, and that the plaintiffs employed incompetent and unskillful workmen to do the work, and had used unseasoned hemlock for joists and sheathing, •and upon the above-mentioned grounds he advised the 'defendant to protect his interests as provided for in part twelve of the contract. . Upon receipt of this paper the defendant Charles H. Scoville prepared and signed a notice in writing directed to the plaintiffs and dated September 30, 1890, which notice reads as follows :
    Messrs. J. & T. Charlton :
    I herewith give you three days’ written notice, to expire October 4th, at nine a. m., to remove all labor and materials condemmed by the architect, Mr. F." William Fisher, and provide such ■materials as called for in the specifications. And I also notify you that I shall make use of the power given me -únder part 12 in ■contract, to terminate the employment of the contractor ’who shall ■do said carpenter work.
    Enclosed find the certificate of the architect, Mr. F. William "Fisher.
    Charles H. Sooville,
    Tonawanda, FT. Y.
    This notice inclosed the certificate of the architect above spoken ■of, and was served personally on one of the plaintiffs on September 30th. After some conversation between one of the plaintiffs ¡and the defendant Charles H. Scoville, and also between that plaintiff and Michael Stokes and the architect, at Buffalo, the ■plaintiffs expressed a willingness at that time to remedy the defects, but on the 3d of October the court finds that the work ’fcas abandoned by the plaintiffs, and without remedying any of the «defects, except in one or two respects, and the work done up to that time was not to the satisfaction or approval of the architect, nor, although plaintiffs had ample opportunity for that purpose, did the work comply with the notice from Charles H. Scoville. After the 3d of October the court also finds the contract was terminated and annulled by the reason of the failure and refusal of plaintiffs to perform the same. The defects in the building were ■important and substantial. After abandoning the contract the plaintiffs did nothing further in regard to the - building or the materials on the premises, and after letting the building remain in that condition for two weeks the defendants took it down, because it was necessary to do so in order to have the house constructed ■according to the contract. The defendants then proceeded through other contractors to reconstruct the building in accordance, as they insist, with the plans and specifications of the old contract, but at ■a necessary cost of between $600 and $700 in excess of the price named in that contract. The court, however, refused to find that the building was completed according to the original contract, or that the necessary cost of so building it was more than the original ■contract price. In the course of performing the work and procuring the materials therefor the defendants used a certain amount •of the materials which had belonged to the plaintiffs, and which they had put into the building up to the time when they abandoned the contract. Those materials amounted in value to $318. The expense of taking down the structure erected by the plaintiffs ■and erecting another upon the same foundation, up to the point where the original structure was abandoned, was $123.50, which dhe court found was the damage sustained by the defendants by reason of the plaintiffs’ breach of their contract, such sum being made up of the expense of taking down the old structure and the labor of carrying the new one to the point where the plaintiffs had left the old one. The plaintiffs filed a lien against the house for the purpose of securing their claim for the amount of the materials belonging to them which were used by the defendants in the erection of the house subsequent to the abandonment of the contract by the plaintiffs.
    The plaintiffs had never been paid anything under their contract at the time they abandoned it, and the contract provided for a certificate from the architect before any payment should be due under it. The court gave judgment to the plaintiffs for the value of their materials used by defendants, which it found to be $318, ■deducting therefrom $123.50, the amount which it cost the defendants to tear down and erect the building in accordance with the •contract up to the point it had reached when the plaintiffs left work, and for the balance, $194.50, judgment was directed for the plaintiffs. The court refused to find the facts upon which to •base defendants’ claim to recover damages for the increased cost ■and expense they had been put to in erecting the building according to the original contract.
    Both parties appealed to the general term from the judgment entered upon the decision of the special term, and upon the hearing of the appeals that court increased the j udgment in favor of the plaintiffs by striking out that part of the allowance to defendants of §123.50, which consisted of the cost and expense oí re-erecting the building to the point at which it was when it was pulled down upon the abandonment of the contract by the plaintiffs, and which iyas $83. The general term allowed to the defendants the cost and expense of tearing down the building, which, was $40.50 out of the $123.50, and disallowed the balance ($83),. thereby increasing the judgment in favor of plaintiffs by that sum, or to a total of $277.50, and as thus modified, the judgment was affirmed.

      Le Roy Parker, for app’lts;

      George Wing, for resp’ts.

      Affirming, 52 St. Rep. 306.

   Peckham, J.

The plaintiffs' take the point that the appeal to this court is unwarranted by the Code, inasmuch as the judgment, appealed from is for a less sum than $500, exclusive of costs, and they cite several cases as authority for their position. None of them, however, is applicable to this case. The judgment in favor of the plaintiffs here not only gives them the sum named therein of $277.50, but it extinguishes the counterclaim made by the defendants to the amount of some $650, and the real amount in controversy between these parties is not only the sum named in the. judgment for the plaintiffs, but is also the amount of the counterclaim contended for by the defendants, which, is extinguished by this judgment. Reed v. Trowbridge, 106 N. Y. 657; 8 St. Rep. 676. We have never held that where a counterclaim is extinguished by the judgment for plaintiff the amount of the counterclaim could not be added to plaintiff’s judgment for the purpose of discovering the real amount in controversy between the parties. The amount in controversy here is clearly more than $500.

Upon an examination of the case we think that no error has-, been committed entitling defendants to a new trial.

It is plain, and the court have so found, that the plaintiffs, prior to the service upon them of the notice signed by defendant Charles H. Scoville, have violated their contract in regard to the materials to be placed in the buildihg,'and also in regard to the manner of its construction, and that such violations were important and. substantial.

They abandoned the work entirely and terminated the contract at least so far as their owa action could do so before the fourth of October, 1890. From that time on the defendants had full control, and they proceeded to tear down the portion already erected and to put a building in accordance with the plans of the old contract, but at an increased cost, as they alleged, of some $650. In the course of the work the defendants used some of the ma.terials belonging to the plaintiffs, and after deducting their value, the defendant’s claim a judgment for the balance they were compelled to pay for the completion of their building over and above the price mentioned in the old contract.

The defendants claim, and we may admit, that the contract was not terminated by the wrongful abandonment of work by plaintiffs, and'that defendants were entitled to hold the plaintiffs liable thereafter in the manner provided for by the terms of such contract for all damages they might sustain by reason of the plaintiffs’ violation of their obligations as therein set forth.

The defendants claim to. have proved the fact and extent of their damage by the certificate of the architect given, as they •assert, by virtue of the last part of the 12th subdivision of the ■contract. If that certificate had been given after full compliance with the previous provisions of that subdivision it would have been, under the terms of the contract, conclusive upon both parties. It was not so given. There is no evidence or pretense that the architect had ever given the prior certificate as to the character of the refusal or neglect of the plaintiffs which was necessary in order to permit the defendants to proceed thereafter in accordance with the terms of the contract and terminate the plaintiffs’ ■employment and themselves go on with and fulfill the provisions ■of such contract. Consequently they could not avail themselves of the certificate of the architect as proof of the amount of their ■damage. They had themselves failed to comply with the terms upon which they had the right, under the contract, to claim that the certificate was inadmissible to prove and conclusive as to the amount of their damage.

■ Other and common-law evidence of damage was necessary, and it should have been uncontroverted in order that an exception to a refusal to find the fact might be available here.

The trial judge refused to find upon this subject of increased -cost and damage, as requested by the defendants, and his opinion shows that his refusal was based not alone because in his judgment the alleged fact was immaterial but because it was untrue. The judge said that such a binding could, upon the evidence in the case, have been constructed within the contract price, which was amply sufficient for that purpose. The twelfth subdivision of the contract did not permit the defendant to pay any price they might choose for the further prosecution of the work and charge it to the plaintiffs. By its fair meaning they were restricted to such cost or price as might reasonably be necessary in order to ■complete the work according to the contract, and if it exceeded the contract price the plaintiffs would be responsible. For the reasons above stated the certificate of the architect was no evi- ■ dence of the cost or damage. The defendants have no finding that they had in fact sustained damage from the extra cost of the building, and the alleged fact is not established by uncontradicted evidence. That they paid $650 more than was provided for in the old contract may be true, but that it was reasonably necessary so to do in order to complete the building according to the original contract, does not appear and would seem not to have been the fact. All other damage they have been allowed for.

We think the judgment should, therefore, be affirmed with costs.

All concur, except Haight, J., not sitting.

Judgment affirmed.


author: Bartlett, J.

text:
    The People, Resp’t, v. Charles F. Wilson, App’lt.

      (Court of Appeals,

      Filed April 9, 1895.)

    1. Homicide—Conspiracy.
    Where an unarmed peace officer, discharging his duties in a gentle and considerate manner is thrown entirely off his guard by the apparently docile and submissive way in which his prisoners are allowing him to conduct them to the police .station, and such prisoners are two desperate men, one of whom is the defendant, who carry concealed weapons of an unusually deadly and dangerous character, but both of them are submissive- and quiet until the defendant utters his warning cry to “let her go,” when. each springs into the most intense activity and the defendant strikes the-officer with a blow from the butt of his revolver and at almost the same instant of time the bullet of the other prisoner completes the work of death, it is-sufficient to establish a perfect and complete combination and concert of action between The defendant and his associate.

      2. Same—Proof.
    The facts, in this case, were held sufficient to satisfy the court that the-jury were justified in rendering a verdict to the effect that the defendant, is guilty of murder' in the first degree.
    Appeal from judgment of the court of oyer and terminer of the county of Onondaga, entered upon a verdict, convicting defendant of the crime of murder in the first degree, and also from an order of said court denying a motion for a new trial.

      Harrison Hoyt, for app’lt;

      Benjamin J. Shove, district attorney, for resp’t.
   Bartlett, J.

On the 31st day of July, 1893, James Harvey a detective and member of the Syracuse police force, was shot, and instantly killed on a public street in that city at ten. o’clock in the forenoon. The tragedy was witnessed by a number of citizens. Two brothers, Lucius R. Wilson, and this defendant, Charles; F. Wilson, were jointly indicted for murder in the first degree as-the alleged perpetrators of the crime.

The defendants demanded separate trials. Lucius R. Wilson was tried, convicted, the judgment affirmed by this court andi sentence of death duly executed.

- In September last this defendant was convicted of murder in the first degree at the Onondaga oyer and terminer and we are-now called upon to review that judgment.

The learned counsel for the defendant introduced no evidence on his behalf The material facts are few and simple.

On the night of Sunday, June 4, 1893, the shoe store of McBride & Co., on South Salina street, was entered by burglars, the safe opened and about $600 in money taken, including a quantity of- silver in quarter dollar pieces, dimes and nickels.

On the Friday and Saturday preceding the burglary three-strangers had taken meals together in Palmer’s restaurant. Two-of these strangers were the Wilson brothers, but the identity of -the third person has never been disclosed. On the Monday following the burglary the same three strangers again visited the restaurant, coming in separately, but eating their meals together-

Their bill was three ddllars, and it was paid with three quarters,, five nickels and twenty dimes.

The three strangers then disappeared from the city of Syracuse.

The proprietor of the restaurant had his suspicions aroused by the facts already narrated, and he conferred with McBride and. the police officials as to the possibility of the three strangers being implicated in the burglary of the previous Sunday night.

It was finally arranged that if the suspected men should again visit the restaurant Palmer was to communicate with police headquarters, and they would be placed under arrest.

Detective Harvey was advised of the situation and instructed to make the arrest if the opportunity presented.

On the morning of tho murder, between nine and ten o’clock,, the Wilson brothers again appeared in Palmer’s restaurant and ordered breakfast. Palmer at once telephoned" police headquarters, and in a few minutes Detective Harvey appeared upon the-scene.

At the time of Harvey’s arrival the Wilson brothers were eating their breakfast. Harvey desired to make the arrest at once,, but Palmer asked him to wait until the men had left the restaurant.

A brief description of the location of the restaurant and police station is essential to a proper understanding of the closing scenes in this tragedy.

Water street runs east and west, Warren street north and south.

Mann’s tea store is located at the southeast corner of Water and Warren streets, facing west on Warren street.

The police station is on Water street, one block east of Mann's-store and on the same side of the street.

Palmer’s restaurant is two blocks south of Mann’s store on theeastsideof Warren street.

Harvey was killed on Water street, about two hundred and fifteen feet east of Mann’s store and one hundred and sixty feet west of the police station.

When the Wilson brothers left Palmer’s restaurant they proceeded north, on Warren street, in the direction of Mann’s store,, which was two blocks distant.

Harvey followed them and when opposite Mann’s store he-tapped them on the shoulders and the throe stepped into the doorway of the store where they apparently engaged in a quiet conversation lasting from one to three minutes, according to the testimony of several witnesses who saw the transaction, but were hot near enough to hear what was Said.

No witnesses were produced who heard the conversatien.

The-Wilson brothers and Harvey then left the doorway, Harvey between them, but not holding or touching them; Lucius was on his left and Charles, this defendant, on his right.

In this position they proceeded north, turned east on Water street walking quietly towards the police station. Next east of Mann’s store a new building was in process of erection and the-sidewalk was barricaded, the obstruction extending some little-distance beyond the curb line.

The three men walked out into the street around the barricade and as they approached the eastern corner of it Harvey had each prisoner by the arm; they were still proceeding quietly and not ■engaged in conversation.

Just as they were turning in toward the sidewalk this defendant, Charles F. Wilson, exclaimed Let her go ; ’ at the same instant he caught Harvey by the coat with his left hand and jerked him around so that while he bad been walking east he faced west; with his right hand he drew from his hip pocket a revolver ten or twelve inches long and dealt Harvey a severe blow with the butt ■ of it on the left side of the head which dazed him and caused his knees to bend as if he was about to fall; at that moment Lucius, who had in the meantime freed himself from the grasp of Harvey and running to the west on Water street a distance, fixed by various witnesses anywhere from eight to twenty-five feet, turned and, drawing a revolver similar to the one his brother ■carried, discharged through the head of Harvey a forty-five-calibre ball, which entered at the right eye and merged at the back of the skull. This defendant, when the shot was fired by his brother, .stood about four feet from Harvey, with his revolver in hand, evidently awaiting the result of his brother’s fire, and ready to complete this assassination of an unarmed peace officer if the first bullet failed to do its work.

The brothers then fled; Lucius was captured in about thirty minutes after the shooting and this defendant nearly a month later in the city of Buffalo.

The main question presented is whether, as a matter of law on the facts presented by the People, the conviction of this defendant ■can stand notwithstanding he did not fire t:he fatal shot.

The learned trial judge in his charge to the jury instructed them with great clearness as to the law governing the case, and repeatedly reminded them there were two theories upon which the defendant could be convicted of murder in the first degree, if, in their opinion, the fact justified it; he called to their attention as the first theory that murder in the fjrst degree is the killing of a human being from a deliberate and premeditated design to effect the death of the person killed or of another (Penal Code, § 183,' sub. 1), and that a person concerned in the commission of a crime, whether he directly committs the act constituting the offense or aids and abets in its commission is a principal, Penal Code, § 29 ; he also pointed out, as the second theory, that murder in the first degree is the killing of a human being without a design to effect ■death, by a person engaged in the commission of or in an attempt to commit a felony, either upon or affecting the person killed or otherwise. Penal Code, § 183, sub. 3.

The jury were instructed that the People claimed the evidence justified a finding that there was an-understanding between these two brothers, made previously or at the time, to resist to the utmost being arrested even if that resistance led to the taking of •human life, and this being so it constituted a deliberate and premeditated designio kill, and death resulting, it was murder in the first degree.

The jury were also instructed that if they found the two brothers were acting jointly and. were aiding and assisting each other in escaping or attempting to escape by force from the lawful ■custody of the deceased then they need not find a design to effect Harvey’s death, and both were guilty of murder in the first degree.

It was also left to the jury to determine whether, under all the circumstances of this case, the two brothers were in lawful custody of Harvey as a peace officer on a charge of felony, and were aiding .and assisting each other in an attempt to escape.

The jury were, throughout the charge, cautioned again and .again to keep in mind the legal distinctions to which the court had called their attention. Indeed, the counsel for the defendant urged, upon the argument, that the prisoner was prejudiced by this repeated reference of the trial judge to the legal distinctions in the case.

We are unable to see any force in this criticism, but on the contrary are persuaded that the jury must have approached the consideration of this case with a very clear apprehension of the principles of law that were to control them in the discharge of their duty.

A careful study of the facts in this case satisfies us that the jury were justified in rendering a verdict to the effect that this defendant is guilty of murder in the first degree.

There is abundant evidence to sustain the conclusion that there was a deliberate and premeditated design by these two brothers •■acting in concert to slay Harvey. It matters not whether that understanding or agreement was formed as part of a general policy .adopted by these desperate men while following a life of crime, or an instantaneous compact, born of the exigency of the occasion, when James Harvey had each by the arm and was within one hundred and sixty feet of the police station whose cell doors were about to close upon them. The deliberation and premeditation essential to constitute the crime may have existed in either case.

The immediate facts surrounding the killing are the only evidence the People could adduce to prove this agreement or understanding, and they were persuasive and convincing to the last degree.

We have an unarmed peace officer discharging his duty in a gentle and considerate manner, and thrown entirely off his guard by the apparently docile and submissive way in which his prisoners were allowing him to conduct them to the police station ; we have two desperate men carrying concealed weapons of an unusually deadly and dangerous character; we have perfect concert ■of action between the prisoners, both submissive and quiet until this defendant uttered his warning cry to “ Let her go,” and then ■each sprang into the most intense activity; this defendant dazed Harvey with a blow from the butt of his revolver, and at almost the same instant of time the bullet of Lucius completed the work of death.

It is fair to assume from the evidence that within ten or fifteen seconds after this defendant gave his fatal signal James Harvey was lying dead in his tracks with this defendant standing within four feet of him, with .his revolver in hand, watching the effect 'of his brother’s shot.

A more perfect and complete combination and concert of action could not be disclosed by human evidence. The killing of Harvey was the joint act of these two brothers.

The jury, however, may have adopted the other theory of the case, and reached the conclusion that the two brothers were in the lawful custody of Harvey on a charge of felony, and were aiding and assisting each other in an attempt to escape, which act was also felony,- and properly regarded the design to effect Harvey’s death as immaterial.

The facts fully support such a finding by the jury.

As' the verdict was general it is impossible to say which theory of the case the jury'selected.

Having reached the conclusion that the jury were entitled to convict the defendant' on either theory of the case it remains for us to consider the exceptions of the defendant.

Daniel W. Savage, a waiter in the restaurant where the Wilson brothers took breakfast the morning of the murder, was permitted to testify, against the objection of the defendant, that he said in a natural tone of voice to Palmer, the proprietor, when the Wilsons were passing through into the dinning room, and between five and seven feet distant from him: “ There goes the burglars.” This

was a circumstance to be considered by the jury; it was for them to determine whether the Wilsons heard the remark, and if they believed they did, it was a fact of the very greatest importance bearing both upon the subject of the arrest and of the opportunity afforded the suspected men to make the most deliberate and .complete agreement to resist arrest if the police authorities should attempt it. In this latter aspect this seemingly trifling incident becomes of paramount importance.

It would make deliberation and premeditation on the part of the Wilson brothers not only possible, but highly probable in the light of the subsequent events already commented upon at length.

The fact that Savage was permitted to give his opinion under cross-examination that he did not believe the Wilsons heard his remark is entitled to no weight. The cross-examination was thorough and searching as to this incident, and it was for the jury to say if the suspected men overheard the remark.

The witness Henry P. Haze was allowed to state that- the indicted men were brothers.

The defendant’s counsel insists this evidence was calculated to harm the prisoner. We think it was competent' and had a direct bearing upon the issue of agreement between the Wilsons to effect their escape by concert of action. This fact by itself would not prove such an agreement, but it is one of many circumstances proper for the jury to consider.

The defendant’s counsel make several requests to charge the jury, which were refused.

The first reads: If the jury find that there was no intent by defendant to kill the officer, and he did not know that Lucius R Wilson was going to kill him, then, although present and striking Harvey, he cannot be convicted of murder in the first degree.

The court refused to charge this proposition as a whole.

The trial judge pointed out that the statute provided that the intent must be to kill the person who was killed or another, and that if the arrangement was, before the Wilsons met Harvey, to resist to the extent of killing some person to them unknown, he could not charge the proposition as submitted.

■ The most obvious vice of this request to charge is that it was general in its character and not limited, as it should have been, to the first subdivision of the statute which deals with the killing of a human being from a deliberate and premeditated design to effect the death of the person killed or of another.

It would have been error to have charged this proposition under the third subdivision of the statute where there was no design to effect death by a person engaged in the commission of a felony. Penal Code, § 183, subdivisions 1 and 3.

The suggestion that the context of the record reveals that the requests to charge immediately preceding the one under consideration referred to the first subdivision of the statute, and that this one obviously did, is without force, as the criticism is to some extent inaccurate, and furthermore each request must stand by itself.

The prisoner could not have been prejudiced, as the trial judge had explicitly charged the jury under the first subdivision of the statute, and laid down the law properly.

We think there was no error in refusing to charge this request.

The next refused request reads : “ If an agreement existed between the parties to escape from the officer, but not to murder him, then the killing by one is not the act of the other, and unless the jury believe he intended the death of the officer he cannot be convicted of murder in the first degree.”

This request is general in its character, and does not state the law accurately; to have charged it as it stands would have been error.

The next three requests refused read: “ There is no evidence that this defendant aided or abetted in the killing of Harvey.”

There is no sufficient evidence of a preconceived and common purpose, resolution and agreement to resist Harvey, or any officer, to the extent of killing the officer.

There is no sufficient circumstance proven in this case to warrant the jury in finding any resolution or agreement by defendant with Lucius E. Wilson to commit murder.

We think each of these requests was properly refused, as all the questions were for the jury.

The defendant’s counsel refers to a refusal to charge at folio 1679 of the case under his fifth point. The court and counsel seem to have reached an agreement as to the request there considered.

The last request referred to by defendant’s counsel reads:

If the jury have a reasonable doubt as to defendant’s guilt of murder in the first degree, they may convict in a less degree.

This was afterwards modified to read “ second degree” instead of “ less degree.”

The trial judge then defined murder in the second degree and told the jury substantially they- could convict of that degree under the first subdivision of the statute if they had a reasonable doubt as to deliberation and premeditation; he then said to the jury in substance, that under the-other subdivision of the statute there was no element of intent involved, and if they found no agreement to act in concert they could not convict the defendant at all, and if they found concert of action it would be murder in the first degree.

This seems to us the fair intent and meaning of a somewhat discursive charge made in response to this particular request, and we do not think there was a refusal to charge as requested in view of all that was said. The final result was that the jury were correctly instructed as to the law.

We may state in conclusion that we have not confined our examination of this case to points presented by the prisoner’s counsel, but have considered every possible ground for exception or error contained in the record, and are unable to say that the verdict of the jury should be set aside.

The judgment of conviction and order appealed from should be affirmed.

All concur, except Andrews, Ch. J., Gray and O.’Brien, JJ., who dissent on the'grounds: (1) That there was no sufficient evidence to justify the court in submitting to the jury the question whether, on the day of, or on any day preceding the homicide, the defendant and Lucius E. Wilson (who fired the shot which killed Harvey) had entered into a joint agreement, conspiracy or confederacy to resist, to the taking of human life if necessary, any attempt by any person to arrest or detain them, or hold them in custody, and (2) that the charge of the judge to the effect that if the jury found that such combination or agreement was made, and that the killing of Harvey by the shot fired by Lucius E. Wilson was in execution of such common design, the defendant, Charles F. Wilson, could be convicted of murder in the first degree, was erroneous, for the reason that the evidence furnished no sufficient basis for the charge.

Judgment affirmed.


author: Per Curiam.

text:
    The People ex rel. Equitable Gas Light Company of New York, Resp’t, v. Edward P. Barker et al., as Commissioners, etc., App’lts.

      (Court of Appeals,

      Filed December 4, 1895.)

    Appeal—Abehimance.
    The omission of important facts in this case, which appear in the same case between the same parties in the proceeding to review the assessment of 1893, warrants an affirmance of the order setting aside an assessment of ■ relator’s capital for taxation for the year 1893.

      Appeal from order of the general term of the supreme court in the first judicial department, which affirmed an order of special term, which set aside an assessment of the relator’s capital for taxation for the year 1892.

      D. J. Dean, for app’lts;

      Frederic R. Coudert, for resp’t.

      Affirming 63 St. Rep. 568.

   Per Curiam.

Very important facts are wanting in this case, which appear in the case between the same parties in the proceeding to review the assessment of 1893. In this case the statement submitted to the commissioners did not show the earnings of the company for the year preceding the assessment, nor does the return nor the proof show that any facts were considered by the commissioners outside of those stated in the return. Hor does the return show the principle or grounds upon which the commissioners proceeded in reaching the assessment. There is nothing from which the court can find that the gross assets were of greater value than claimed by the petititioners in their statement. The statement contains an item, “surplus earnings, $44,799.05,” accompanied with no explanation. The commissioners seem to have acted in fixing the assessment exclusively upon the statement of tho relator. They did not impugn any of the facts therein stated, and assuming those facts to be true, and that the commissioners acted solely thereon, we think the order below was right and it should, therefore, be affirmed, but without costs.

All concur.

Order affirmed.


author: Finch, J.

text:
    The People, Resp’t, v. David Hampton, App’lt.

      (Court of Appeals,

      Filed December 4, 1894.)

    Appeal-Facts.
    It is the province of the jury to determine questions of fact and decide between conflicting inferences, and the duty of the court of appeals to interfere arises only when it can see that the verdict is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption.
    Appeal from judgment of the court of general sessions of the peace of the city and county of Hew York, entered upon a verdict, convicting 'defendant of the felony of murder in the first degree.

      Robert J. Haire, for app’lt;

      John D. Lindsay, for resp’t.
   Finch, J.

The defendant appeals from a judgment rendered on a convicting him of murder in the first degree. The case has been submitted upon briefs and without oral argument. That Annetta Ahrens was murdered by some person with such deliberation and premeditation as to constitute the crime charged is conceded. That the defendant was its perpetrator rests as a fact wholly upon circumstantial evidence, and the contention now is that it was insufficient to warrant the conclusion of the jury. It must not be forgotten that it is their province to determine questions of fact, and decide between conflicting inferences, and that ear duty to interfere arises only when we can see that the verdict is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption. People v. Taylor, 138 N. Y. 398; 52 St. Rep. 914. I have read the evidence given carefully, and do not see how the jury could have reached any different conclusion. The mass of testimonj'- is much too great to be repeated, but an outline of the principal incriminating facts will sufficiently show the ground of the verdict.

Mrs. Ahrens was last seen alive between eight and nine o’clock in the evening of December 29th, 1892. She was a widow, about seventy or eighty years of age, miserly and penuric us in her habits, often having considerable sums of money in her possession, and with a passion for gold coin, which she refused to spend and would not deposit in the bank, although sums of considerable amount were credited upon her bank books. She occupied two rooms, the smaller of which was a bedroom and held a wardrobe, with a few other articles of furniture: On the morning of December 30th she was found dead in her bed, with the marks of a blow on her face and her throat cut so that her head was almost severed from her body. Everything in the bedroom was in disorder and confusion. The door to the outer room leading from the hall had been burst open and stood partly ajar. In a bureau in that room a small amount of money was found undistured, but much less than the woman was in the habit of keeping about her. On the washstand was a knife with' a wooden handle, on which was the word “ bread,” in raised letters, the steel blade being about eight inches in length and stamped on the metal with the words “ bread knife.”. It was stained with blood, some of which had dripped from it upon the stand. That the murder was committed with that weapon is, of course, a natural and obvious inference. That knife was very clearly identified as the property of the defendant. He took it away from Mrs. Johnson’s in a bag on the 15th of December, having at the time no other articles of property except a plate, a dish, a cup and saucer and some small amount of clothing, and having been turned out by Mrs. Johnson because unable to pay his rent. He went with his wife directly to Mrs. Ahrens’ house, where he stayed till December 26th, or three days before the murder. He there occupied a room adjoining the sitting room of Mrs. Ahrens, separated from it by a partition in which was a glass door. The deceased had covered this with wrapping paper to prevent observation, but a corner had been torn off, leaving an opening through which it was possible for the defendant in his room to see what Mrs. Ahrens was doing in hers. On Christmas day she found that she had been robbed of about eighty dollars, and suspected the defendant as the thief. After his arrest he confessed that he stole the money on Christmas eve but claimed he had never robbed her since. "The money was taken from tho wardrobe according to Mrs. Ahrens’ account of it. Two days later he was seen drunk and excited and with a wad of bills in his hand and said there was plenty more where that came from. On the evening of that day he left Mrs. Ahrens, his few things having been put out in hall, and took a room with Mrs. Randolph. On Thursday, December 29th, he told her that he was going away and his wife would settle with her. He had given his name as David Johnson, and said he had just come from the west and was going back again. On the evening of that day, which was the night of the homicide, and somewhere between nine and eleven o’clock, he was in a saloon with a roll of bills, amounting to something over eighty dollars, treating everybody and buying champagne, whisky and cigars. At about one o'clock he left for his room, asking Ms companion to tell his landlady that he was gone away with horses, and making an arrangement to go with him the next day to Newark. In the morning he gave the witness, Papisco, a five-dollar gold piece with which to buy tickets, in Newark bought clothes paying out two five-dollar gold pieces and a, five-dollar bill, and later, in Stone’s, he produced a twenty-doilar gold piece. His wanderings about- Newark are detailed, and there he was finally arrested hiding under a false name. One other circumstance was added to the proof. The murdered woman’s hands were observed to be lifted toward her head, and in the palm of one was found a finger-stall or small bandage for the finger. The proof shows that before the murder the defendant had such a bandage on his finger, and at the trial that found in the dead woman’s hand was put upon his finger and fitted perfectly.

There was very much more of the evidence, but what I have stated is the substantial outline. The prisoner gave no explanation of his possession of the money and the gold coin, and falsely ■denied the ownership of the knife. That the accused had a knowledge and opportunity adequate to the commission of the crime; that he had once already robbed the deceased, and took his plunder from her wardrobe; that his extreme poverty furnished a motive for the act; that he owned the weapon found with blood upon it at the scene of the homicide; that the morning after the murder he left the state and went to Newark without any apparent reason; that while there he had in his possession a considerable amount of money, at least thirty dollars of which was in gold coin; that there he bought new clothing and threw the old into a privy vault; that he endeavored to hide away and conceal himself to escape arrest, were all facts more or less strongly proved, and which called for some explanation consistent with innocence to break their force. None whatever was given. These were the main facts, but surrounded with many details of conduct and .conversation pointing in the same direction. The proof was quite sufficient to warrant an inference of guilt, and the case was one over which the jury could not long hesitate.

None of the exceptions to the charge of the court need discussion. They raised no legal question about which there can be any doubt. It is our duty to affirm the judgment


author: Andrews, Ch. J.

text:
    Railroad Equipment Company, Resp’t, v. Mitchell S. Blair, as Receiver, etc., App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    Evidence—Judgment.
    A former judgment, establishing rights and relations between the parties: thereto, while it is never admissible to defeat or divest any right existing in a person not a party or privy thereto, is admissible against such person for the purpose of proving that the plaintiff in the former judgment sustained to the defendant therein the relation established thereby, and was clothed with whatever right the defendant had' therein, saving only the right of the third person to impeach the former judgment for fraud or collusion.
    Appeal from judgment of the general term of the supreme-court in the fifth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.
    This action was brought to recover possession of seventy freight, cars, alleged to be the property of plaintiff, and which had. been taken possession of by defendant as receiver of the Eochester,. Hornellsville and Lackawanna Eailroad Company.

      Frank Sullivan Smith, for app’lt;

      Cherardi Davis, for resp’t.

       Affirming 53 St. Rep. 936.

   Andrews, Ch. J.

The right of the plaintiff to the possession-

of the seventy cars sought to be recovered in this action was resisted by the defendant, as receiver of the Rochester, Hornellsville and Lackawanna railroad, on the ground, first, that the plaintiff, as the assignee of Post, Martin & Co., had never acquired the right of possession as against the Central Construction Company, assuming that that company purchased and was vested with the-title to the cars when they were delivered to the Lackawanna and Pittsburgh Railroad Co., October 11, 1886, and, second, that the Central Construction Company purchased the cars for the Rochester, Hornellsville and Lackawanna Railroad Co., and that the-title was in that company when the contracts between Post, Martin & Co. and the Central Construction Company of October 16, 1886» under which the plaintiff claims, were made, and that Post, Martirt & Co. acquired no rights thereunder as against the Rochester, Hornellsville and Lackawanna Railroad Co. The referee found against the defendant on the question of title, and found as a fact, that the cars were purchased by the Central. Construction Company, and were owned by that company October 16, 1886. If this finding is supported by the evidence, it is conclusive on this, appeal. The documentary evidence shows a purchase of the cars by the Central Construction Company. A written contract of June 25,1886, the firm of Colwell and Canning agreed to sell and deliver to the Construction Company in August and September of that year the seventy cars at prices specified, to be paid for in-cash and in bonds and" stock of the Eochester, Hornellsville and Lackawanna Eailroad, Co. The payments were made by the Construction Company according to the terms of the contract, as appears by the writen receipts given in evidence, the last payment, having been made October 1st, 1886. The cars were delivered on the 11th day of October 1886, by the direction of the Construction Company, on the tracks of the Lackawanna and Pittsburgh Railroad Co., at Angelica, of which latter road one George D. Chapman was in possession as receiver, he at the same time being the general manager of the Construction Company, and also-a director in the Rochester, Hornellsville and Lackawanna Railroad Co. The company last mentioned was organized to build & short line of road connecting with the Lackawanna and Pittsburgh railroad, the construction of which had not at that time been commenced. The Construction Company had entered into a contract, with the former company to build and equip the road and to receive the bonds and stock of the road in payment. There is no-finding and no direct proof that the cars prior to October 16,1886, had been delivered to the Rochester, Hornellsville and Lackawanna Railroad Company. The defendant proved circumstances which might have justified the inference that in purchasing the cars the Construction Company was acting as agent for the railroad company. There were mainly paid for in the bond and stock of the company, which inferentially the Construction Company had received under its contract to build and equip the road. The freight charges on the cars from Pennsylvania to Angelica "were paid by the Rochester, Hornellsville -and Lackawanna Railroad Co. and an account was kept by the Lackawanna and Pittsburgh Railroad Co. in which the other company was credited. for the use of the cars prior to the completion of its road. The-cars were marked with the initials, R. H. & L. R. R. Co. Other circumstances were shown on the part of the defendant in support of the claim that the cars were manufactured for and belonged to the Rochester, Hornellsville and Lackawanna Railroad-Co. But upon the whole evidence the question of title as between the Construction Company and the railroad company was m question of fact, not determinable by any decisive evidence on either side, and the decision of the referee upon the point is conclusive here.

It only remains to consider whether any erroneous evidence-was admitted on the trial against the exception of the defendant, or any competent evidence offered by him was rejected to his prejudice. There is but one question on this branch, of the case requiring special notice, and this bears exclusively on the point whether the plaintiff showed any right to maintain an action to-recover possession, assuming that the title to the cars was in the Construction Company October 16, 1886, when the contracts between the company and Post, Martin & Co. were made. The claim was that even if the defendant company did not own the cars and were not entitled to possession as against the true owners, the present plaintiff as the assignee of Post, Martin & Co. did not represent the possessory right of the Construction Company. It appears _that October 16, 1886, Post, Martin & Co. loaned the Construction Company $15,000 on the security of the? seventy cars, without notice of any claim thereto adverse to that of the Construction Company. Under advise of counsel the Construction "Company transferred the seventy cars to Post, Martin & Co. by a bill of sale absolute in form." The firm then executed to the Construction Company a lease of the cars, reserving rent payable in installments, which when fully paid would repay the loan and interest, and meanwhile and until default the Construction Company was entitled to the use and possession of the cars. Subsequently Post, Martin & Co. assigned their rights under the contracts to the American Car and Equipment Company, the predecessor of i the present plaintiff. Default having been made by the Construction Company in the payments of the rents reserved, the Car and Equipment Company brought an action of replevin against the Construction Company to recover the possession of the ears, based on the contracts of October 16, 1886, and recovered judgment therein prior to, the commencement of the present action, whereby the title and possession was adjudged to be in the plaintiff in that action, the Car and Equipment Company. This judgment was offered in evidence by the plaintiff on the trial of the present action and received against the objection of the defendant, and this is alleged to have been error on the ground that the Rochester, Hornellsville and Lackawanna Railroad Company was not a party to the former action and was not bound by the judgment therein. The circumstances under which the judgment was offered and received were these: The plaintiff having put in evidence the bill of sale to Post, Martin & Co., and the lease back to the Construction Company, the defendant’s counsel moved to dismiss the complaint on the ground, among others, that it appeared from the evidence ‘ now offered, that the plaintiff is not entitled to the possession of the property.’ The plaintiff then -offered in evidence the judgment roll in the former action, under objection and exception. We think the judgment roll was competent evidence to establish that the plaintiff had extinguished the right of possession of "the Construction Company under the lease of October 16, 1886, and that as against that company it Lad the right of possession of the cars. The general and well-settled rule that a judgment binds only parties and privies is unquestioned. But there is an exception to this rule as firmly set-led as the rule itself, and that is that a former j udgment estabishing rights and relations between the parties to that judgment, while it is never admissible to defeat or divest any right existing in a person not a party or privy thereto, is admissible against such person for the purpose of proving that the plaintiff in the former judgment sustained to the defendant therein the relation established thereby, and was clothed with whatever right the defendant therein had which was awarded to the plaintiff by the judgment, saving only the right"of the third person to impeach the former judgment for fraud or collusion. In the present case the controversy arose as to the title and right of possession of the seventy cars. The former judgment could not determine as between these parties that the title was in the Construction Company when the agreement of October 16, 1886, .was made, but it was competent evidence that the plaintiff in that judgment, and by force thereof extinguished any right of the'Construction Company under the, lease, and had acquired as against that company any right it had to the possession of the cars. It in no way determined the claim of the defendant here that the road he represents had a title prior to, and paramount to the alleged title of the Construction Company. The real right in issue in this case was not affected by the former judgment. It did determine, however, as between these parties that the plaintiff stood in the shoes of the Construction Company to assert whatever title and right of possession it had as against the defendant. The judgment may incidentally affect the situation of the defendant to raise in this action a technical defense, not founded upon any right of property vested in him, but it was not for this reason incompetent. There are many cases where a former judgment is admissible against third persons not parties or privies. It may form a link in a chain of title and be the foundation of a subsequent conveyance. The party claiming under the judgment may prove it as one of the muniments of his estate. In a creditor’s bill the judgment received by the plaintiff is conclusive against the party whose conveyance is sought to be set aside for fraud of the existence and amount of the plaintiff’s debt, and the defendant is not permitted to impeach it for error of fact or law in the absence of fraud or collusion. The former judgment in this case operated as a transfer from the Construction Company to the Car and Equipment Company of all its rights, and has the same force as if it had been made by an instrument in form executed by the Construction Company to the plaintiff in the judgment. Barrr v. Gratz, 4 Wheat 213; Candee v. Lord, 2 N. Y. 269; Raymond v. Richmond, 78 id. 351; Canaan v. Greenwoods Turnpike Co., 1 Conn. 1; Black on Judg. § 607 ; Bigelow on Estp. et seq.

The case of Hassall v. Wilcox, 130 U. S. 493, illustrates the distinction in the cases. In that case the question was one of priority of liens. One party relied upon the judgment of a state court adjudging him priority of lien over all other claims on the property and equipment of a railroa<jl in an action to which the holder of a prior mortgage was not a party, and it was held that as against the mortgagee and bondholders the judgment of the state court adjudging the priority of lien was not binding.

We perceive no legal ground for disturbing the judgment below, and it should, therefore, be affirmed, with costs.

All concur, except Haight, J., not sitting.

Judgment affirmed.