author: PARKER, J.:

text:
    Louis Bracco, Respondent, v. James G. Tighe, Appellant.

      Appeal — presumption as to contested facts — contract — when executory — when a partial performance of the contract will sustain a recovery.

    Upon an appeal from a judgment rendered upon the verdict of a jury by direction of the court, all the contested facts must be deemed to have been established in favor of the appellant, and the most favorable inferences to be drawn from the evidence must be assumed in his favor.
    A contract was made, one of the parties to which promised to give to the other the exclusive privilege of furnishing laborers, at a specified price per day, on certain work therein mentioned, and on all other work where he should have the privilege of supplying labor, for which the other party agreed to pay fifty dollars a month for each 100 men so employed.

      Held, that the consideration was executory, the counter promise, and not the performance, constituting the consideration.
    If one of the parties to a contract, with full knowledge of the inability of the other party thereto to keep one portion of such contract, requests and accepts performance of another portion thereof, this constitutes of itself a waiver of the partial non-performance, and a recovery may be had under the contract for that portion thereof which was performed, and it is a question for a jury whether or not such performance was not a substantial performance.
    Appeal by the. defendant, James G. Tighe, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 23d day of May, 1893, upon the verdict of a jury, rendered by direction of the court after a trial at the New York Circuit, dismissing the defendant’s counterclaim and for the recovery of damages and costs by the plaintiff.

      Tlie complaint alleges tlie making of a contract between tlie parties to the action; a payment by the plaintiff of $600 to the defendant on account thereof; a failure of performance by defendant, which, it is alleged by the terms of the agreement, rendered it void; a demand made upon defendant for repayment to plaintiff of such sum; neglect and refusal to comply with such demand, and asks judgment for such amount with interest.
    The complaint alleged tlie agreement to be as follows:
    “Whereas, James G. Tighe, of tlie city of Brooklyn, has the privilege of furnishing the labor required on Section Two of what is known as. the Water Extension on Long Island for the city of Brooklyn. And, whereas, work thereon will probably commence between the 6th day of March, 1890, and the 1st day of May, 1890, and, whereas, five hundred or more men will be required on said work, and the same will continue for probably two, three or more years.
    “Now, in consideration of the premises, it is agreed by and between said Tighe and Louis Braceo, of the city of New York, that the said Braceo shall have the exclusive right to supply all the laborers needed on said work, and shall have the sole and exclusive right to board and to lodge said laborers, and for that purpose shall erect at his own expense the necessary buildings upon the gruunds where said work is to be performed, and at his own expense furnish the necessaiy food, fire and light for their maintenance. And it is agreed, upon his part, he shall supply and furnish only good and able.-bodied men, and to the number required by the contractor, at the agreed wages of one dollar and fifty cents per day.
    “ That said Braceo shall pay to the said Tighe every month the sum of fifty dollars for each one hundred men so employed, which shall be in full for all his interest in supplying said laborers as aforesaid, and all other sums of money arising therefrom shall belong to said Braceo alone.

      “ And' it is further agreed by and between said parties that no other person shall have the privilege of furnishing any laborers on said work so long as the said Braceo shall supply good and suitable men to the satisfaction of the contractor therefor; that the said Tighe will not permit, in so far as he can prevent the same, any person locating upon the grounds of said work for the purpose of providing board and lodging for the laborers employed thereon, and the right of said Braceo to discharge any laborers who shall board at any place other than that provided by said Braceo, or who shall act disorderly, shall be absolute.
    “ And it is further agreed by and between said parties, that the term of this agreement shall apply to any other work for which the said Tiglie shall have the privilege of supplying labor.
    “ That any violation of the covenant of this agreement by either party thereto shall render the same void.

      “ In witness whereof, the said parties have hereunto set their hands and seals at the city of Brooklyn, this 6th day of March, 1890.
    “J. G. TIGHE,
    “ LOUIS BKACCO.

      “ In presence of
    “Bbhette F. Martella.”
    The answer does not put in issue any of the allegations of- the complaint, but it avers by way of counterclaim the making of a contract embracing the same subject-matter as the one set up in the complaint Avhicli it alleges was made in October, 1889, and under which it avers performance on the part of defendant to such an extent that it alleges there became due to the defendant, by reason thereof, the sum of $1,558.50, and demands judgment against the plaintiff in the sum of $958.50 over and above plaintiff’s claim, with interest.
    The cause coming on for trial, the allegations of plaintiff’s complaint not being denied, the defendant assumed the affirmative for the purpose of establishing his counterclaim.
    At the close of his testimony the counterclaim was dismissed and judgment directed for plaintiff for the amount claimed in his complaint.

      James M. G. Smith, for the appellant.

      Herman Frank, for the respondent.
   PARKER, J.:

The allegations of the complaint were not put in issue by defendant’s answer, and it follows that the court rightly directed a verdict in favor of plaintiff, if it be true that defendant had failed when he rested his case to establish his counterclaim. No. motion was made to dismiss the answer on tlie ground tliat it did not properly allege a counterclaim, and the evidence presented by the defendant to establish it was received without a single objection on the part of the plaintiff. Whether, in view of the fact that none of the allegations of the complaint were put in issue by the answer, any portions of the evidence might have been objected to and excluded, we do not determine.

No occasion is presented for a consideration of that question.. We are only to inquire, in view of -the manner in which the trial was conducted by both parties, whether at the close of defendant’s testimony he had so far established the counterclaim alleged in his answer, or some portion of it, as should have led the court to have denied the motion to dismiss.

On this appeal we must, in disposing of that question, deem all contested facts established in favor of the appellant, and the most favorable inferences to be drawn from the evidence must be assumed in his favor. (Galvin v. The Mayor, 112 N. Y. 222.)

The defendant testified, and in such respect he was supported by the witness Martella, who acted as the interpreter in the transactions had between plaintiff and defendant, that in November, 1889, an agreement which, with the exception of the date, is. in the same language as that set up in plaintiff’s complaint, was executed by these parties and witnessed by Martella; that subsequently it was engrossed, and on the second day of December, two days later, an engrossed copy was executed by the same parties in the presence of the same witness. These executed writings were both received in evidence. Defendant testifies that a third paper, which is the same as the others, with the exception of the date, and a copy of which is set up in plaintiff’s complaint, was made and executed at the request of the plaintiff, who assigned as a reason for the request that he was in trouble with two men who claimed to be his partners; that he then had a suit pending for the purpose of securing a decree dissolving the partnership, and that he wanted a new agreement made, so that for the subsequent privileges, which should be afforded him through the defendant, of obtaining work for laborers to be employed by him, there should be no opportunity for his alleged partners to claim the right to share in the profits which might ensue.

For his accommodation and because of such request defendant caused another copy of the agreement, then in force, to be made and executed by himself and the plaintiff, the only change being in the date. From his testimony and that of the witness Martella, it appears that the $G00 which plaintiff seeks to recover was paid at the time of the execution of the first agreement. It was paid with the understanding that it was on account of an advance required to be made, in order to obtain the right to furnish laborers on section 2 of what is known as the water extension on Long Island, for the city of Brooklyn. That privilege was never obtained as provided by the agreement. But there was another provision in the agreement, by which it was provided that the terms of the first provision should apply to any other work for which the defendant should have the privilege of supplying labor. Under it the plaintiff obtained, through the defendant, the privilege of supplying laborers to section I of the water works, running from Maverick to Rocka-way. The contractor testified that at defendant’s request he permitted the plaintiff to furnish the Italian laborers, and that the number furnished by him averaged 250 a month for a period of- about seven months. The defendant and Martella each testified that plaintiff admitted to them that such a number of men were employed by the contractor through him.

In the latter part of April and May, defendant, having obtained the privilege of furnishing laborers at St. Jolmsland, tendered the right to furnish them to the plaintiff, as by the agreement he had promised. Plaintiff accepted the offer and put eighty men at work there. Later, and in August, defendant obtained the privilege of furnishing laborers in some quarries in Connecticut, and this he tendered to the plaintiff, who accepted it.

"Without a more extended review of the evidence it is sufficient to say that, under the last provision of the agreement, defendant obtained and furnished to the plaintiff the privilege of supplying laborers under at least three different contractors.

The point is made that it does not appear that plaintiff was permitted to furnish all the laborers, but only a portion of them, in the instances where he accepted privileges from the defendant,

It does appear that other men than those furnished by him were employed on section 7, but those men were more skillful than the laborers' of the class furnished by the plaintiff.

The contractor when asked whether plaintiff had furnished all the laborers, said yes, he furnished all Italian laborers; the other men employed were mechanics. "We think the evidence on that subject presented a question for the jury whether there was not a substantial performance of the agreement in such respect.

It was urged on the motion to dismiss the counterclaim, and again here, that the agreement was without consideration. This contention is without force.

The promise of the defendant to give the plaintiff the exclusive privilege of furnishing laborers at one dollar and fifty cents per day on the work named, and all other work where he should have the privilege of supplying labor, was the price for which the promise of the plaintiff was bought to pay defendant fifty dollars a month for each 100 men so employed. The' consideration was executory, the counter promise, and not performance, constituting the consideration.

And the contract being founded on a good consideration, there remained for the defendant to show substantial performance on his part as a basis for the recovery of any sum claimed, or at least substantial performance of everything he had promised to do, which the plaintiff had not waived.

Now, the agreement represents the parties as having in mind a desire and intention to include within it:

First. Provisions relating to all the laborers to be employed on section 2 of water extension on Long Island for the city of Brooklyn.

Second. All labor to be employed on any other work for which defendant should obtain the right to furnish laborers. While the specific work which was first made the subject of agreement was probably the inducing cause of the making of the contract, and not unlikely may have been regarded by both parties as of more moment than the other, still, the other provision was substantial, and although it occupies but a few printed lines, the provisions of the clause preceding it are so incorporated into and made a part of it, that it must be treated as if written substantially in these words :

“Now, in consideration of the premises, it is agreed between the parties that Braceo shall have the exclusive right to supply all the laborers needed on any work for which Tighe shall have the privilege of supplying labor, and shall have the sole and exclusive right to board and lodge such laborers. * * * And it is agreed that Bracco shall supply good and able-bodied men and to the number required by the contractors at the agreed wages of $1.50 per day; that said Braceo shall pay to the said Tighe every month the sum of $50 for each one hundred men so employed, which shall be in full for all his interest in supplying said laborers as aforesaid, and all other sums of money arising therefrom shall belong to said Bracco alone.”

It may well be that these two subjects of agreement are so far interdependent that a refusal to perform either would absolve the other party from any obligation to pay for that which had been performed and accepted, without knowledge on the part of the acceptor of the inability of the other contractor to make full performance. Still, the two'subjects are so far divisible that if performance be waived by the party entitled to demand it as to one provision and accepted as to the other, a recovery may be had under the contract for that which was performed. Further, if with full knowledge of defendant’s inability to keep one portion of the contract, plaintiff requested and accepted performance of the other, such conduct of itself constituted a waiver.

According to the testimony of the defendant and his witness, it appears that after the making of the first contract in November, 1889, the defendant, under the second provision in the agreement, gave to him the privilege of furnishing laborers under several contracts ; that he accepted the offers, made no objection that he was not accorded under any one of them all of the rights which it was the purpose of the contract to secure to him ; that on several occasions defendant requested him to bring in his accounts, showing, the number of men employed, to the end that a settlement might be had between them, and defendant promised each time to do so on the next visit. It also appears that after the defendant had failed to obtain the privilege of supplying labor on section 2 of the water works, which was the subject of the first provision of the agreement, he informed plaintiff of it, who, instead of declaring the contract at an end, and asserting that there was such failure of performance on the part of defendant as denied to him the right of recovery for the privileges 'which he had furnished, continued to accept the benefits which the defendant secured to him under the second provision of the contract, and in one instance, at least, accepted from him the privilege of furnishing laborers on a work in which he had not before been engaged.

In the light of these facts the court cannot say, as a matter of law, that the plaintiff did not waive any right he may have had to insist upon full performance under both provisions of the agreement as a condition of recovery.

There was such a performance under the second provision as at least presented a question for the jury, whether it was not substantial.

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

YaN BruNT, P. J., and O’BrieN, J., concurred.

Judgment reversed and new trial granted, with costs to the appellant to abide the event.


source: Caselaw Access Project

license: Public Domain

text:
    Mark Lythgoe, Appellant, v. Martha Lythgoe and Others, Appellants, and Maria Craig, alias Maria Linden, Respondent.

      lies judicata — how shown — omission of the clerk to sign a judgment.

    "Where a disputed question is litigated and directly passed upon by a court of competent jurisdiction, it cannot thereafter be brought in question in any subsequent action between the same parties or their privies.
    When a question is alleged to be res judicata, it is necessary that it should affirmatively appear, either from the record itself or from such other evidence as may be necessary to show the grounds upon which the action proceeded to final judgment, that such question was not only in issue but was directly adjudicated upon.
    The omission of the clerk to sign a judgment does not affect its validity.
    Appeal by the plaintiff, Mark Lythgoe, and the defendants, Charles Lythgoe and others, from that portion of a judgment of the Supreme Court in partition, entered in the office of the clerk of the city and county of New York on the 16th day of September, 1893, upon the report of a referee which awarded dower to the defendant Maria Craig, alias Maria Linden, with notice of an intention to bring up for review on such appeal that portion of the interlocutory judgment entered in said clerk’s office on the 18th day of April, 1893, which adjudged said defendant Maria Craig, alias Maria Linden, to be the lawful widow of James Linden, deceased, and also to review an order made at the New York Special Term, and entered in said clerk’s office on or about the 7th day of August, 1893, awarding an extra allowance of $750 to the defendant Maria Craig.

      A. J. Skinner, for the appellants.

      Ed/wan'd S. Peak, for the respondent.
   PARKER, J.:

The judgment appealed from was rendered in a suit brought to partition certain real estate, and it adjudges that the defendant Maria Linden is the widow of the testator, who devised the property to certain of the other parties to the action and is entitled to dower therein.

The complaint alleges that she was married to the testator, James Linden, in the year 1842, but that the marriage was void for the reason that at the time of its solemnization she had a former husband Jiving named John Craig, and that her marriage with Craig was in full force at the time of her marriage to Linden and still continues to be. Upon the trial, plaintiff, against the objection of defendant Linden, introduced evidence tending to show her marriage with one John Craig prior to 1842, and that Craig is still living.

Thereupon she put in evidence the judgment roll in an action in the Court of Common Pleas for the city and county of New York, between James Linden, plaintiff, and Maria Linden, defendant, which she contended adjudged and determined that she did not have a husband living at the time of her maniage with Linden, and that the latter marriage was valid and lawful.

Thereupon a motion was made by defendant Linden to strike out-all of the testimony offered by plaintiff for the purpose of showing that her marriage with Linden was invalid. The motion was granted, and subsequently the referee made his report in which he found that she was the widow of Linden and entitled to dower in the premises.

Prom the judgment entered on this report, and in conformity therewith, this appeal comes.

The question presented is, wlietber the judgment roll is res judP mta upon tlie question of tlie validity of tbe marriage witli Linden, which it is conceded was solemnized in 1842.

It is well settled that where a disputed question is litigated, and then directly passed upon by a court of competent jurisdiction, it cannot thereafter be brought in question in any subsequent action between the same parties or their privies. (2 Black on Judgments, § 504; Smith v. Smith, 19 N. Y. 634; Patrick v. Shaffer, 94 id. 424; Williamsburgh S. Bank v. Town of Solon, 136 id. 465-475.)

It is necessary that it should affirmatively appear, either from the record itself, or from such other evidence as may be necessary to show the grounds upon which the action proceeded to final judgment, that the question alleged to be res judicata was not only in issue, but directly adjudicated upon.

It must be removed from the questionable domain of uncertainty and doubt, and become so positive that it must be known what was passed upon by the court. Now, the defendant presented no evidence, aside from that furnished by the judgment roll, tending to show' what questions were passed upon, and we must, therefore, ■examine it to see whether it establishes as positively as the rule requires, that the question which plaintiff sought to establish in this action was passed upon in that.

Looking first at the minutes of the court, we find that a jury was impanelled; that three witnesses were sworn in behalf of the plaintiff, and four were called by the defendant, and that the jury returned a verdict in favor of the defendant.

Turning to' the judgment, we read: “The issues in this action having been tried before a jury and a verdict having been rendered therein in favor of the defendant, it is ordered, adjudged and decreed that judgment herein be and the same is hereby given for the defendant, and that the marriage between the plaintiff and defendant in the pleadings mentioned is a valid and lawful marriage.”

Thus it appears that the issues were tried, and what those issues were quite clearly appears from the provision in the decree adjudging the marriage between the parties to be valid and lawful. .

The judgment roll furnishes other evidence touching the question tried and decided.

The judgment declares that the issues in the action were tried. and the pleadings determine what the issues were. Turning to the complaint, we find that the plaintiff alleges his marriage with the defendant; that they subsequently lived together as man and wife; that the issue of the marriage was one child named Martha then living, and then plaintiff alleges the discovery by him that the “ defendant has a husband living by the name of John Craig, and that said Craig was living at the time of said marriage between plaintiff and the said defendant. And the said plaintiff insists that the said marriage between plaintiff and defendant was and is unlawful for the reason aforesaid, and prays that said marriage ties existing between them in consequence of said marriage may be dissolved by a decree of judgment of this court.”

The issue then, and the only one which the plaintiff tendered to the defendant, was that at the time of their marriage she had a former husband living. Defendant in her answer averred that John Craig absented himself for the space of five years and upwards, without being known to her to be living during that time.

And the answer avers that defendant “further denies, upon her belief, that she has a husband living by the name of John Craig, or that Craig was living at the time of said marriage between plaintiff and defendant, as untruly alleged in said complaint.” And “ insists that the marriage between the plaintiff and defendant is not unlawful and ought not to be dissolved by the judgment of this honorable court.”

Defendant asked for no affirmative relief against the plaintiff, and necessarily the question in controversy, and the only one, was whether she had a former husband living. To the suggestion by the appellant that the case may not have been disposed of upon the merits — that perhaps the complaint was dismissed — the answer is that the minutes of the court assert that the jury rendered a verdict for defendant. This judgment roll, which was made up something over forty years ago, establishes that a valid and effectual judgment was rendered.

The Court of Common Pleas had jurisdiction of the subject-matter and of the parties. (Laws 1849, chap. 438, § 33, subds. 1, 2.)

The court had power to order all the issues to be tried by a jury. (Code Proc. § 254.) The Code did not require that such order be made a part of the judgment roll, and it must be presumed that the procedure in such respect was regular.

The’judgment roll contains the summons, pleadings, the minutes of the court, the verdict and a copy of the judgment, and, therefore, complies with the statute then in force. (Code Proc. § 281, subd. 2.)

And at the end of the copy of the judgment attached to the judgment roll were the following words: A copy, Geo. W. Riblett, Cleric.” Through these words, by means of a pen and ink, a line has been drawn. "When and by whom does not appear. It is certainly not conceivable that the respondent, or any one in her behalf, could have been led to attempt the mutilation of a judgment roll, the validity of which was so important to her.

But it was not necessary that the clerk should sign the copy of the judgment.

He did sign the minutes of the court, and on the rendering of the verdict it was the clerk’s duty to enter judgment, which, after the expiration of four days, became final. (Code Proc. § 265.) And the omission to sign the judgment roll did not affect the validity of the judgment, as it involved a mere question of practice and of regularity. (Van Alstyne v. Cook, 25 N. Y. 489.)

And that which it was not necessary to do in order to give life to the judgment, the undoing of will not take away.

The judgment should be affirmed, with costs.

YaN Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, with costs.


author: Follett, J.:

text:
    Otto J. Lang, Ancillary Executor, etc., Respondent, v. The Houston, West Street and Pavonia Ferry Railroad Company, Appellant.

      Damages for personal injuries — contributory negligence as a matter of law — right of action by an ancillary executor.

    It does not constitute negligence, as matter of law, that a person crossing a street fails to observe that a car is moving at more than twice the usual rate of speed of horse cars on the street, along which it was proceeding, nor is it negligent for him to assume that the driver thereof will obey the customary signal of a person desiring to ride in such car.

      Section. 1902 of the Code of Civil Procedure is a remedial statute enacted to compel those who negligently cause the death of persons to compensate the surviving husband, widow or next of kin of the person so killed, and should be so construed as to give, rather than to withhold, the remedy intended to be provided; there is nothing in the words of the statute or in the circumstances attending its enactment from which it can be inferred that the Legislature intended to give the right of action only in case the person killed was a. citizen of the State of New York or left property therein.
    Section 1902 of the Code of Civil Procedure is not covered by the express terms of section 2702 thereof, but by the broad powers conferred by the latter section upon ancillary representatives, it is evident that the Legislature intended to give them every right of action conferred upon executors or administrators, except those specially excepted.
    Appeal by tbe defendant, Tbe Houston, West Street and Pavo-nia Ferry Railroad Company, from a judgment of tbe Supreme Court, entered in tbe office of the clerk of tbe city and county of New York on the 26th day of May, 1893, upftn tbe verdict of a jury for •$1,583.77 after a trial at the New York Circuit.

      Henry A. Eobmson, for the appellant.

      D. Edgar Anthony, for tbe respondent.
   Follett, J.:

This action was brought to recover damages resulting from tbe death of plaintiffs testator, caused, it is alleged, by tbe negligence of tbe defendant’s employees.

At about five o’clock and fifteen minutes in tbe afternoon of March 9, 1892, Mason Hirsch, in attempting to cross from tbe east to tbe west side of Broadway, was knocked down by tbe horses drawing one of defendant’s cars, and so injured that be died within forty-eight hours thereafter.

But two witnesses were sworn on tbe question of tbe negligence of tbe defendant’s employees and tbe contributory negligence of tbe decedent.

Mr. Scheuer, who was engaged in business on Broadway, and familiar with tbe rate of speed of horse cars in that street, testified that just before tbe accident be signaled tbe driver'of tbe car which injured tbe decedent that be wished to board it, but the driver refused to stop, and indicated that be should take another car, and urged on his horses, which were, in the, language of the witness, “ going at a terrific rate of speed.”

Mr. Baylor, a lawyer having an office on Broadway, was riding on this car and stood by the side of the driver at the time of the accident. He testified that the horses were being driven “ata very fast rate of speed that they were galloping most of the time going up Broadway, and, in his opinion, they were traveling at the rate of twelve miles an hour. Tie describes the accident as follows: “ Just before the horses struck him (Hirsch) 1 saw the driver didn’t notice him, and I caught the driver and grabbed hold of his reins, and then instantly saw him, and he put the brake on and tried to stop.”

No witnesses were called by the defendant as to the rate of speed of the car, or to contradict or to explain the evidence given in behalf of the plaintiff, and without quoting it we think there was sufficient to justify the jury in finding that the car was moving at a rate of speed which, in that crowded thoroughfare, was negligent, and also .that the driver was negligent in not observing the decedent in time to avoid the collision. The decedent was crossing Broadway at or near a street crossing, and the car approaching from the south was signaled by a person who wished to ‘take it, and it was not, as a matter of law, negligent in the decedent to fail to observe that the car was moving at more than twice the usual rate of speed of horse cars on Broadway, nor was it negligent for the decedent to assume that the driver would obey the customary signal of a person desiring to take the car. The evidence justified the jury in finding that if the car had been moving at the usual rate of speed of horse cars on Broadway, or if the driver had obeyed the signal of Scheuer who tried to take passage, the decedent would have crossed in safety, and we think the evidence was sufficient to authorize the jury to find that the decedent did not, by his negligence, contribute to the accident.

The decedent, at the time of his death, was a resident of the city of Philadelphia, in the State of Pennsylvania. He left a widow and six children, who are his next of kin and heirs. He left a will Avliich was duly admitted to probate March 24, 1892, in the State of Pennsylvania, and letters testamentary were issued to Mina Hirsch, his widow, Henry Hirsch and Alfred C. Hirsch, two of his sons. September 10, 1892, ancillary letters were granted by the surrogate of the city and county of New York to tbe plaintiff, a son-in-law of the decedent.

It is insisted on behalf of the appellant that section 1902 of the Code of Civil Procedure gives a right of action only to “ the executor or administrator of a decedent,” but does not confer a right of action on an ancillary executor.

This statute is a remedial one, enacted for the purpose of compelling those who negligently cause the death of persons to compensate the surviving husband, widow or next of kin of the person so killed, and, like all such statutes, should be so construed as to give, instead of withholding, the remedy intended to be provided. (Lamphear v. Buckingham, 33 Conn. 231; Haggerty v. Central R. Co., 31 N. J. L. 349.) The important portion of the section is that which gives a right of action, and not that part which provides who may enforce it the latter is an incidental provision. There is nothing in the words of the statute, nor in the circumstances attending its enactment, from which it can be inferred that the Legislature intended only to give a right of action in case the person killed was a citizen of this State, or left property in this State. The words of the statute are “ the executor or administrator of a decedent * * * may maintain an action to recover damages.” These words are broad enough to include ancillary executors or administrators, and nowhere in the sections relating to this subject are there found words indicative of an intent to exclude ancillary representatives, nor is there any reason that we can see why they may not maintain an action, unless we hold that the statute does not apply to persons killed who are not residents of this State. Section 2702 of the Code of Civil Procedure provides that all of the provisions of chapter 18 of the Code (except the 5th title, which relates to the distribution of decedent’s realty) “relating to the rights, powers, duties and liabilities of an executor or administrator, apply to a person to whom ancillary letters are granted.”

Section 1902, being a part of chapter 15, and not of chapter 18, is not within the express terms of section 2702, but by the broad powers conferred by that section upon ancillary representatives, it is evident, we think, that the Legislature intended to give them every right of action conferred upon executors or administrators, except those specially excepted.

We think the intention was to give damages to the surviving husband, widow or next of kin, enforcible by the person who, for the time being, represented, in this State, the estate of the decedent. The judgment should be affirmed, with costs.

YaN BettNt, P. J., and Paeeee, J., concurred.

Judgment affirmed, with costs.


text:
    Richard A. Smith and Others, as Trustees, etc., Respondents, v. Rosalie C. Campbell, Appellant, Emeline F. Parsons and Others, Respondents.

      Trust — accumulation of income — it vests absolutely in the minor beneficiary— its disposition where the minor dies under age.

    Where personal property is bequeathed, in trust, to apply so much of the income as may he necessary to the support of a cestui que trust during life, and to accumulate during the minority of such cestui que trust so much of the income as shall not he necessary for his support, to he added to the principal fund, with a remainder over, the accumulation vests in the minor and, when he reaches his majority, he is entitled to it, and if he dies during his minority, it becomes part of his estate.
    A testator died, leaving a widow and two minor daughters, his only heirs at law and next of kin. His will authorized his executors to divide one equal half of his estate into as many equal shares as he should leave children; to invest each share and to apply the income, or so much thereof as should he necessary, to the use of the child for whom such share was intended, and to accumulate the remainder of the income until such child attained the age of twenty-one years or sooner died, and upon such child attaining the age of twenty-one years, to pay over all accumulations of income to her, and thereafter to apply the income of such share to her use during the remainder of her natural life, and upon her death before or after her attaining the age of twenty-one years to transfer such share to her children, and in the case of her death leaving no issue, to transfer such share to the testator’s then surviving issue.
    One of testator’s daughters died before attaining the age of twenty-one years, considerable income having accumulated upon her share of her father’s estate during her lifetime.

      Held, that the income which had accumulated vested in hgr absolutely as it accumulated, and constituted part of her estate.
    Query, as to whether a testator who establishes two independent trusts for two minors, and directs the surplus income arising from each trust to be accumulated during the minority of the cestui que trust, can lawfully provide that in case of the death of either while both are minors, the survivor shall take the accumulations.

      Appeal by the defendant, Eosalie Coe Campbell, from portions of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 1st day of June, 1893, upon the-decision of the court after a trial at the New York Special Term.
    February 2, 1884, Eichard L. Campbell died, leaving a widow, Emeline F. Campbell, and two minor daughters, Martha Campbell and Eosalie 0. Campbell, his only heirs and next of kin. He also left three sisters, Letitia S. Sands, Mary Smith and Martha H. Campbell, who are still living.
    June 1, 1889, the widow and Herbert Parsons intermarried, and she is now Emeline. F. Parsons. November 28, 1889, Martha Campbell died, a minor, unmarried and intestate, leaving her mother and sister her only heirs and next of kin. January 5,1892, Emeline F. Parsons was duly appointed administratrix of the estate of said Martha Campbell. When this action was begun (January 25,1892) Eosalie 0. Campbell was under the age of fourteen years, and when she will become of age did not appear.
    Said Eichard L. Campbell left a will, which was duly proved March 1,1884, by which he directed his executors to convert his entire estate into money, one-half of which they wei’e to invest and pay over the income thereof to his widow during her life, and, upon her death, the remainder to his issue, if any, and if none, to his sisters. The other half of his estate he disposed of as follows :
    “ Third. I authorize and empower my executors to divide the other one equal half part or share of my estate into as many equal shares as I may leave children me surviving, and to invest and reinvest each share, and to collect and receive the interest and income of each share and apply the same, or so much thereof as they may deem necessary, to the use of the child for whom said share is intended, and to accumulate the remainder of said income until such child shall attain the age of twenty-one years or sooner die, and upon such child attaining the age of twenty-one years, to pay over all accumulations of income to such child, and thereafter to apply the income and interest of such share to the use of such child during the remainder of his or her natural life, and upon the death of such child, before or after his or her attaining the age of twenty-one years, to assign, transfer and set over such share to the children, if any, of snob child, tbe issue of a deceased child to take the share the parent would have taken, if living, and in case of the death of any child of mine, leaving no issue him or her surviving, to assign, transfer and set over the share intended for such child, to my then surviving issue by representation and not per capita, and in case of the death of any child of mine, leaving no issue of mine, him or her surviving, to assign, transfer and set over such share to my sisters, Letitia S. Sands, Mary Smith and Martha II. Campbell, equally, share and share alike, the issue of any one of them who may have died before such child of mine to take by representation and not per capita, the share the parent would have taken if living.”
    The executors divided the half of the estate disposed of by the third clause into two equal shares and invested one for the benefit of Martha Campbell, and the other for the benefit of Bosalie C. Campbell. During the life of Martha considerable income accumulated from her share. In this action, brought for the construction of the will, it was held at Special Term that the accumulations belonged to the administratrix of the estate of Martha and not to her sister. From this judgment Bosalie C. Campbell has appealed.

      Stephen P. Nash, for the appellant.

      John A. Beall, for the respondents.
   Follett, J.:

The sole question involved in this case is, whether the income which accumulated on Martha’s share prior to her death goes with the principal to her sister, Bosalie C. Campbell, or to the administratrix of Martha’s estate, to be equally divided between herself and Bosalie C. Campbell.

It is provided by sections 3 and 4 of title 4 of chapter 4 of part 2 of the Revised Statutes, that all directions for the accumulations of the income of personal property shall be void unless such accumulation is for the benefit of one or more minors. It is urged in behalf of the appellant that in case two separate trusts are created by a testator, each for the benefit of an infant, that the income from each trust may be accumulated during the minority of the cestui qui trust for whose benefit it was primarily created, and in the case of the death of either infant, the trust estate set apart for him and the accumulations thereon may be bequeathed to the other infant. Such a construction of the statute would produce results which, we think, were not contemplated by its authors. Suppose the younger of the infants should die just after the elder reached his majority, to whom would the accumulated income go? Not to the adult cestui qui trust, for that would be in violation of the statute. The accumulated income would not go to the next of kin of the deceased infant, unless it vested as it accrued, and the accumulation would have to be held to be unbequeatlied assets of the testator, which certainly would defeat the intention of most testators.

Did the testator intend that the accumulated income of Martha’s share should become part of the trust estate, and go to those entitled to it after her death ? Clearly not in case she reached the age of twenty-one years, in which event all the accumulations were to be paid over to her. It is evident that the testator did not intend that the accumulated income from Martha’s share should be added to and become a part of the sum to be held in trust for her during her minority, but intended that it should be kept separate, so that it •could be paid over to her when she arrived at full age. It is urged that the accumulated «income vested in Martha, subject to be divested in case she died before reaching twenty-one. "We find no language in the will indicative of such a purpose.

The testator evidently intended to dispose of his entire estate, and we cannot believe he intended, in case the younger daughter should die during her minority without issue, but after the elder had become of age, or that in case’ both should die without issue before becoming twenty-one, that the accumulated income should be assets of his estate and undisposed of by his will.

"We think the testator intended that the income which accumulated on Martha’s share should vest in her absolutely as it accumulated, and be paid over to her in case she became twenty-one years of age, but did not intend, in case of her death without issue before reaching that age, that it should be divested for the benefit of those who should be entitled to the remainder of the principal sum, for it might Avell be that the persons entitled to the principal could not take the accumulations.

In case personal property is bequeathed in trust with direction to apply so much of the income as may be necessary to support a cestui que trust during life, with a direction to accumulate during the minority of the cestui que trust so much of the income as should not be necessary for the support of the beneficiary, to be added to the principal fund with a remainder over, the title to the accumulations vests in the minor, and, when he reaches his majority, he is entitled to the accumulations, and if he die during his minority, they become part of his estate. (Pray v. Hegeman, 92 N. Y. 508 ; Barbour v. De Forest, 95 id. 13.)

In thé first case cited the testator directed the surplus income accruing during the minority of the cestui que trust to be added to the trust fund and the income of the whole to be paid to the cestui que trust for life, and after his death the whole estate was bequeathed to others.

In an action brought by a creditor of the cestui que trust after he had become of age, if was held that the direction to accumulate was void and that the accumulations belonged to the cestui que trust and could be reached by his creditors. The direction to accumulate was held void because the accumulations were not solely for the benefit of the infant.

In the second case the testator devised and bequeathed property in trust, directing that so much of the income therefrom as should be necessary for the support of the cestui que trust during her minority should be so applied and the remainder added to the principal, and after her majority she should receive the income from the funds so augmented during life, and at her death the trust fund should be divided among her children, if any, but if she had none, among other persons.

In an action brought by the cestui que trust during her minority for the construction of the will, it was held that the direction to accumulate was void, and that the accumulation vested in the cestui que trust, and that she was entitled to the whole income.

Whether a testator who establishes two independent trusts for two minors and directs the surplus income arising from each trust to be accumulated during the minority of the cestui que trust, can lawfully provide that in case of the death of either while both are minors that the survivor shall take the accumulations, was not decided in the cases cited, nor in any case that has come to our . notice, nor need we decide that question, for we think this testator did not intend such a result, and besides tlie trust fund with the added accumulations (assuming it was to be augmented by the accumulations) would not necessarily go to an infant, but might to an adult sister or to adult aunts.

In Harris v. Clark (7 N. Y. 242, 257, 258) it was held that the accumulation must be for the exclusive benefit of a minor, and that if it may be for the benefit of an adult the direction to accumuj late is void.

In Ward v. Mitcham (92 N. Y. 375) the direction was to invest a fund and accumulate the income until a minor granddaughter of the testator became of age, and then pay the fund and its accumulations to her, and in case she died before becoming twenty-one the fund and its accumulations were to be paid to her issue, if she left any, but if she left none the fund and its accumulations were to be paid “ to her then living brother and sisters.” The granddaughter died, a minor, without issue, leaving a brother and two sisters of the whole blood, and two half-sisters who were strangers to the blood of the testator. The question debated and decided in that case was, whether the word sister ” included half-sisters, who were strangers to the blood of the testator, or included only sisters of the whole blood. The validity of the direction to accumulate was not considered. The question in the case at bar was involved in the case but was not raised.

In Goebel v. Wolf (113 N. Y. 405) the testator left a widow and four minor children, and directed by his will that his executors should invest one-half of the net rents from certain realty and the net profits of a business in bond and mortgage for the benefit of his minor children, which was to be kept invested until the youngest became of age, and then to be divided equally among 'them, provided his widow was then dead, but if she was not, then the trust property and the accumulations were to remain undivided until her death. The widow remarried and one of the children died under age, without issue. In an action brought by the executor for a construction of the will, it was held that the accumulations vested in the infants as they accrued, and that the heirs at law and next of kin of the deceased infant became entitled to one-fourth of the trust and to one-fourth of the accumulations.

The position that the title to accumulations arising from personalty held in trust vests at once in a minor or minors under tbe statute, and cannot be the subject of' a valid remainder, finds some support in the 5th section of the title relating to accumulation of personal property, which authorizes the Supreme Court to cause k suitable sum to be taken from the moneys accumulated, or directed to be accumulated, and to be applied to the support or education of such minor.”

It is assumed in1 this section that accumulations vest in the minor. The judgment should be affirmed, with costs payable out of the accumulations, in favor of Emeline E. Parsons, and in favor of the appellant.

YaN BiiuNT, P. J., and PabKeb, J., concurred.

Judgment affirmed, with costs payable out of the accumulations, in favor of Emeline F. Parsons, and in favor of the appellant.


author: YaN BeuNt, P. J.:

text:
    The People of the State of New York, Respondent, v. Morris Spiegel, Appellant.

      Incompetent evidence — when the admission of is no ground for reversal — indictment for presenting a fraudulent claim of loss under a fire insurance policy — ■ competency of a juror — irresponsive testimony — motion to strike out all of testimony pa/rtially competent — judge?s charge.

    An exception to inadmissible evidence is not necessary in order that a court may reverse a judgment when, in its opinion, injustice has been done, hut the mere fact that during the progress of a long trial, improper or incompetent evidence may have been admitted, to which the attention of the trial judge, was called, affords no reason for disturbing the judgment.
    A prisoner has no constitutional right to be convicted by evidence that shall be competent in every particular, and where upon his trial evidence was admitted that might have been, hut was not,-objected to by his counsel, such admission does not necessarily form a ground for the reversal of a judgment of conviction.
    A person was charged with the crime of fraudulently and knowingly presenting a false and fraudulent claim for the payment of an alleged loss under a fire insurance policy. The indictment stated that the defendant presented a claim for the payment of a loss whereby it was claimed by the defendant that he had sustained damage by fire to the extent of 870,221.79, and that the insurance company was justly indebted to him by reason of said loss, and its contract of insurance, in the sum of 57,000, whereas, in fact, the defendant’s loss was not 570,331.79, and the company was not indebted to him in the sum of 57,000.

      Held, that such facts, if established, proved the presentation of a false and fraudulent claim for the payment of a loss upon a contract of insurance, and that the indictment complied with the requirements of the statute. (Penal Code, § 579.)
    The determination of the court in regard to the general incompetency of a juror because of his possible unfamiliarity with the language and of the situation of his business, should not be lightly interfered with, and such determination does not justify the reversal of a judgment of conviction unless the juror was clearly shown to be competent.
    "Where an answer to a question upon a trial is irresponsive and the testimony is incompetent, the proper method of raising the question is to move to strike out the evidence upon these grounds, but merely asking the court to strike out evidence as irresponsive is asking it simply to exercise its discretion in regard to evidence in respect to which no question of competency is urged, but only that it should not appear upon the record in response to the question asked. The rule in respect to evidence of this kind is that in order that error shall be predicated of a denial of a motion to strike it out, the ground must be both that ft is irresponsive and incompetent.
    When a motion is made to strike out all of an answer, a portion of which is competent, the granting of the motion is in the discretion of the court.
    Upon the trial of a person under an indictment the court charged: “This case is such that you may pass upon it, in determining this defendant’s guilt, without even considering the testimony of Blais if you wish to. I charge you that there is sufficient evidence in this case, apart from anything Mr. Blais has said, upon which you can find a verdict of guilty if you are convinced beyond a reasonable doubt from that other evidence.”

      Held, that such charge was proper, and that thereby the court left to the jury for their consideration every element in respect to the guilt of the defendant.
    It is not error for a court to refuse to charge a request for which there is no foundation in the evidence.
    A statement annexed to a claim for loss under afire insurance policy, to the effect that the schedules annexed to the claim stated the value of the merchandise damaged by the fire, and tfiat in estimating the value thereof the value of salvage in various instances was not considered, as much of the goods damaged and saved had for the insured no commercial value, and that their proper value should be ascertained by appraisement, does not change the character of the claim for loss, and it does.not become thereby simply a request for the ascertainment of loss by the appointment of appraisers.
    Upon the trial of a person under an indictment, prior to the commencement of the judge’s charge, written requests were handed up by the counsel for the defendant as to the subjects upon which the defendant requested the court to charge the jury. During the progress of the charge these requests were ruled upon, either charged as requested or qualified or refused. After all this had been done, and the jury were about to retire, the counsel for the defendant said; “ In connection with, youv remarks on the evidence I request as to the testimony of McKenna — ” The court interrupted the counsel, declining to present any more requests, to which ruling the counsel for the defendant seemingly assented, talcing no exception.
    Held, that the record did not show any ground for reversal, nor that the defendant had been injured by the ruling of the court.
    Appeal by the defendant, Morris Spiegel, from a judgment of the Supreme Court, rendered at a Court of Oyer and Terminer held in and for the city and county of New York on the 27 th day of December, 1892, convicting the defendant of the crime of presenting and causing to be presented a false and fraudulent claim for the payment of a loss upon a contract of insurance, knowing it to be such.

      G. Dcmiels, for the appellant.

      H. B. B. Stapler, for the respondent.
   YaN BeuNt, P. J.:

The statute under which the defendant is indicted (Penal Code, § 579) is as follows: “ A person who, knowing it to be such, either presents or causes to be presented a false or fraudulent claim, or any proof in support of such a claim, for the payment of a loss upon a contract of insurance * * * is punishable by imprisonment for not more than five years, or by a fine of not more than $500, or by both such fine and imprisonment.”

The indictment against the defendant, after alleging that the Insurance Company of North America was a corporation at the times in the indictment mentioned lawfully doing business in the city, county and State of New York as an insurer, and that Morris Spiegel, the defendant, was at said times doing business in and by the style of A. Blum, Jr.’s, Sons, and that said company had duly insured said Spiegel to the amount of $7,000 against loss or damage by fire upon certain goods, chattels and merchandise belonging to him, further alleged that said Spiegel fraudulently and knowingly did feloniously present and cause to be presented to said Insurance Company of North America a certain false and fraudulent claim for the payment of a loss upon said contract of insurance wherein and whereby it was claimed by said Spiegel that a loss had been sustained by him by reason of said fire and the destruction and damage occasioned thereby to the goods, chattels and merchandise contained in said building at the time of said fire, and so insured, to the extent of $70,221.79; and that said Insurance Company of North America ivas then justly indebted to said Spiegel by reason of said loss, damage and contract of insurance in the sum of $7,000, which said claim was then and there false and fraudulent in this, to wit, that a loss had not been sustained by said Spiegel by reason of said fire and the destruction and damage occasioned thereby to the goods, chattels and merchandise contained in said building at the time of said fire, and so insured as aforesaid, to the extent of $70,221.79, and. said insurance company was- not then justly indebted to said Spiegel by reason of said loss, damage and contract of insurance in the sum of $7,000, all of which he, said Spiegel-, then and there well knew, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. To this-indictment the defendant pleaded not guilty, and upon the trial before the Court of Oyer and Terminer was convicted by the jury; and from the judgment thereupon entered this appeal is taken.

To attempt a statement of the evidence offered, or of the facts claimed to have been established upon this trial, would be impossible within the limits within which this opinion should be kept; and we will content ourselves with discussing as briefly as may be those points raised upon the part of the appellant which seem to call for discussion and consideration.

In the brief submitted upon the argument of this appeal a very large number of errors in the admission of evidence are brought to the attention of the court; but in almost every instance no exception was taken to the admission of the evidence, a,nd although such an exception is not necessary in order that the court may reverse a. judgment where in its opinion injustice ha.s been done, the mere fact that during the.progress of a long trial improper or incompetent evidence may have been admitted, to which the attention of the trial judge has not been called, affords no reason for disturbing the judgment. "We shall, therefore, proceed to discuss only those-questions which were properly raised, or which seem to be of sufficient dignity to call for consideration.

Tbe first objection raised is that the facts stated in the indictment are not sufficient to constitute a crime.

It is urged that the indictment shows that the Insurance Company of North America, had made a policy of insurance whereby it insured the defendant to the.amount of $1,000 against loss or damage by fire, and that at the time when the appellant presented his proof of loss'the contract of insurance was in full force and effect, and that while said contract was in full force and effect the fire occurred by which certain loss and damage were occasioned to the goods insured; that in order that the indictment should properly charge the presentation by the defendant of a false and fraudulent claim under the statute, it ought to have alleged that a loss had not been sustained by the defendant by reason of said fire and the destruction and damage occasioned thereby to the property insured to the extent of $1,000; and that it was insufficient to allege that the defendant’s claim against the insurance company was false and fraudulent because his loss was not $10,221.19; that it was necessary only that his loss should be $1,000 to make his claim an honest and just one. This criticism upon the indictment seems to have been first raised upon this appeal, But that it has no foundation is seen upon a very brief consideration of the allegations of the indictment. The crime .charged is fraudulently and knowingly presenting a false and fraudulent claim for the payment of a loss under his contract of insurance by the defendant. The allegation in the indictment is that the defendant presented a claim for the payment of a loss whereby it was claimed by the defendant that he had sustained damage by fire to the extent of $10,221.19, and that the company was justly indebted to him by reason of said loss and contract of insurance in the sum of $1,000. The indictment then alleges that the appellant’s loss was not $10,221.19, and that the company was not indebted to him in the sum of $1,000, which facts, if established, proved the presentation of a false and fraudulent claim for the payment of a loss upon a contract of insurance, which was a compliance with the requirements of the statute. The gravamen of the charge is that the appellant, knowing that the insurance company against whom he presented his claim was not indebted to him in the amount claimed, falsely and fraudulently magnified his loss and claimed the whole amount insured. It appears from the evidence in this case that under the contract of insurance, in order that the Insurance Company of North America should become indebted to the defendant in the total amount of its policy, which was $7,000, it was necessary that the loss which defendant sustained by the fire should be $35,000, there being other insurances on the property to the amount of $28,000, and by the terms of his contract of insurance the Insurance Company of North America was not to be liable for a greater proportion of any loss than the amount insured should bear to the whole insurance, whether valid or not, covering such property. The learned trial judge charged •the jury that this was not a case of extravagant estimate; that the defendant could not be found guilty under the indictments if he had simply gone beyond even the highest valuation of the property which he might possibly have made, if it was merely an extravagant estimate; that there must be back of it and under it the intent to cheat and defraud, or, in other words, he must have passed the limit where an honest though extravagant estimate ends into the region where fraud itself lurks and lives; and further, that it was not sufficient, in order to convict defendant, that the jury should find that he had not. sustained a loss of $72,000 or thereabouts, but that not having sustained a loss of $35,000, the amount of his insurance, he knowingly, and with the fraudulent intention of inducing the insurance companies to pay over the amount insured, magnified his loss far in excess of the amount of such insurance. If the jury found these facts the charge contained in the indictment, of the presentation to the Insurance Company of North America of a false and fraudulent claim, would be established.

It is also alleged that the court erred in rejecting one of the jurors who had been summoned upon this trial, upon the ground that the juror showed himself to be both competent and impartial, and that there was no evidence which could satisfy the court in the exercise of its sound discretion, that he could not try the case impartially and without prejudice to the substantial rights of the public. The juror does not seem to have been excluded upon the ground of actual bias, but upon the ground of his general incompetency, and the court seems to have held, from what appeared before it upon the examination of this juror, that he was not competent to serve, because of his possible unfamiliarity with the language, and because the situation of his business was such that his attention would be distracted, and it found that the juror was not what could be called a competent juror in such a case as the one at bar. Findings of the court of this kind should not be lightly interfered with. The question as to the capacity of a juror of foreign nationality to understand the language in which court proceedings are conducted, his general intelligence, his power of comprehending the evidence as offered by the witnesses, and many other points, must necessarily be considered by the court in determining the general competency of a juror. It is impossible to photograph upon the record the hesitation, the evident want of comprehension, the manner and the precise character of the answers of the juror, and these all, necessarily, have great weight with the court in determining the question as to the competency of the juror. It is evident upon reading the examination of the juror in question that he did not comprehend all the questions put to him, and how far this want of comprehension existed it is impossible for us to tell. We do not think that the juror was so clearly shown to be competent that we should reverse the conviction upoii such a ground.

The defendant at the time of the tíre in question, and for some time previous thereto, had been engaged in the city of New York in the business of manufacturing and importing wines and liquors, and it was for alleged damage to his stock in trade at his place of business, 101 and 103 Broad street in the city of New York, caused by a tíre occurring on the 16th of December, 1891, that the alleged claim against the Insurance Company of North America was presented. It was urged upon the part of the People, and testimony tending to show that fact was offered, that after the occurrence of the fire, by which the loss was comparatively small, the defendant commenced doctoring his stock by the addition of bitter almonds shown to have been recently purchased by him, and in other ways, for the purpose of making his loss appear much greater than it really was. Among the witnesses examined was one Yincenot, a distiller and compounder of liquors, who was examined as an expert, and who testified to testing certain samples taken from the stock of the defendant. He was asked upon cross-examination the following question : “ Q. I understand that the other side say that there was a large amount of bitter almond in the wine. Was there any larger amount of bitter almond, or as large an amount of bitter almond, that you could tell by appearance ? ”

The witness answered: “ I haye seen it in several wines quite uniform — the quality. At first when I tasted the wine I thought it was an accident because there was pretty much in if; and then when I tasted the others I found it was the same as the first, and I thought it was probably an accident from the fire; but then uniformity in all the tests had appeared to me as if it was purposely put.” This witness was examined in French, and as soon as the answer was interpreted the counsel for the defendant objected to it on the ground that it was not an answer to his question, and moved to strike it out upon the ground that it was irresponsive, which motion was denied and an exception taken. The sole ground of the objection was that it was irresponsive, not that the evidence was incompetent and improper. It is undoubtedly true that where an answer is irresponsive and the testimony is incompetent, the method of raising the question is to move to strike out the evidence upon these grounds. But merely asking the court to strike out evidence as irresponsive is asking the court to exercise its discretion simply upon evidence in respect to which’ no question of competency is urged, but only that it should not appear upon the record in response to the question asked. The rule in respect to evidence of this kind is that in order that error shall be predicated of a denial of a motion to strike out, the ground must be both that it is irresponsive and incompetent, thus placing the objection upon the same ground as if a proper question had been asked to bring out the evidence and it had been properly objected to.

And further, the motion was to strike out all the answer. It is clear that a portion of the answer was competent.

The witness as an expert was stating wliat he found, and it was only his conclusions from what he found that perhaps might be the subject of criticism. . The motion was not limited to this portion of the answer, but covered the whole, and, therefore, the granting of the motion was within the discretion of the court, .there being some portions of the answer which were competent evidence.

Another point urged is the claim that the court erred in its charge to the jury in respect to the witness Blais, who was examined upon the trial. This witness, who gave testimony which, if true, was highly detrimental to the defendant, was shown to have been of more than doubtful character; and it was claimed upon the part of the appellant that all of the material portions of his testimony were false and induced by reason of the promise of immunity upon the part of the district attorney, and that no reliance should be placed upon it.

The learned court, in the course of its instructions to the jury, charged, among other things, as follows : “ This case is such that you may pass upon it, in determining this defendant’s guilt, without even considering the testimony of Blais if you wish to. I charge you that there is sufficient evidence in this case, apart from anything Mr. Blais has said, upon which you can find a verdict of guilty if you are convinced beyond a reasonable doubt from that other evidence.” To this direction an exception was taken. It is urged that whether there was sufficient evidence without the testimony of Blais to convict the defendant was not for the court, but for the jury, to decide. And in support of this proposition (which hardly needs the citation of authorities) certain authorities are cited, notably the case of McKenna, v. People (81 N. Y. 360). In that case the court charged the jury that if they believed the evidence offered by the People to be true, they would be justified in finding the prisoner guilty, language very different from that used in.the case at bar. By the charge now under consideration the court left to the jury for their consideration every element in respect to the guilt of the defendant. All that the instruction to the jury meant was that if Blais’ testimony was stricken from the case he would still submit the question of defendant’s guilt to them just the same, and would not instruct the jury that there was not sufficient evidence to convict., and advise them to acquit, which advice they would be bound to follow. In other words, the evidence of Blais having been assailed, the court instructed the jury that if they were convinced beyond a reasonable doubt of the guilt of the defendant by the other evidence in the case, they were justified in finding a conviction. Suppose the court charges a jury in any.criminal case, and do not they so charge in every case? that if the jury are satisfied from the evidence beyond a reasonable doubt of the defendant’s guilt they may convict him, and what more is there in the charge in question?

The court in effect, said : Strike out Biais’ evidence, and if without his evidence you are convinced beyond a reasonable doubt of the guilt of the defendant, you may convict. And nothing else. There was no direction to convict, no statement that if they believed the evidence upon the part of the People they must convict, but a simple instruction that if they were convinced beyond a reasonable doubt of the guilt of the defendant, they might convict, no matter what opinion they might have about Blais’ testimony.

The next question presented is an error claimed to arise from a request to charge. The defendant’s counsel asked the court to-charge that if the defendant, through his agents at the time of presenting the proofs of loss, stated to the insurance company, or its agent, that he did not intend to claim the payment of any specific sum of money, and only asked for an estimate of the loss by appraisers, to be hereafter appointed or otherwise, then he must be acquitted. The court refused so to charge, and an exception was taken.

"We have examined the case in vain to find any foundation for the request under consideration. We find no evidence that the defendant, through his agent, at the time of presenting the proofs of loss, stated anything to the insurance company or its agents in reference to his claim, except that which was included in his proofs of loss.

Our attention is called to certain statements made by the defendant to one "Walton, a fire adjuster. But Walton was an agent of the defendant, and it is clear upon examining Walton’s whole testimony in this respect that it does not support the contention that the proofs of loss were not intended to present a claim. He testifies to certain conversations he had with defendant after he had got the schedule. He says he asked defendant if it was a correct statement of damage, and the defendant said : “ So far as the damages are concerned I can’t say precisely, for there would be a large salvage property, but for himself it wouldn’t be worth a great deal, but if it were auctioned off it might be worth a great deal more.” Walton then told him what he had to say about it when he talked it over, and told him the way to qualify that, was to make an estimate of damages not to defeat the company, and to state that this was an estimate, and that he would not demand this amount, but what he demanded was a fair appraisal; that upon this he wrote out such a statement and tbe defendant wrote out one, and the defendant preferred his own. Then the question was put to the witness, “ And you understood this to be a suggestion for you to take to the companies as a qualification of any application or claims ? ” If no claim was presented by the proofs of loss what need was there of qualifications ?

The witness answered, “Yes, sir, for I told him. they would not pay the entire loss. And he said no.’ And I told him to qualify it so as to make the companies understand that his position was such that lie could not make an estimate of his loss on goods that were a total loss, and that he should make a claim upon the goods that were damaged by fire, which goods would be of no value to him as merchandise, but which would amount to more possibly if they were put up at auction ” — language quite inconsistent with the idea that it was not intended that the proofs of loss should present a claim to the insurance companies.

Reference is made to the testimony of Harris, Halsey and Sterns, representatives of the insurance companies, who called upon the defendant in reference to the loss. But their testimony does not substantiate any such proposition as that Spiegel did not intend his proofs of loss to be a claim. The proofs of loss had been sent on the fifth of January, and these gentlemen called on the defendant on or about the eighth of January, when defendant declined to show his books, saying that he had made no claim whatsoever by his books, or for any goods that were burnt up entirely, or for any damage of that kind, clearly showing that at this time at least the defendant understood that he had made a claim against the insurers. But this point is entirely set at rest by a consideration of the proofs of loss themselves. In these proofs of loss is a claim in the following words: “And the insured claims of the Ins. Co. of North America Insurance Company, by reason of said loss, damage and policy of insurance, the sum of $7,000.” Attached to this declaration were schedules claiming to show a loss of over $70,000.

It is sought to avoid the effect of this presentation of proofs of loss by the following statement attached to the proofs of loss, which it would appear was the contribution of the appellant himself: “ Morris Spiegel of the firm of A. Blum, Jr.’s, Sons, of city of New York, being duly sworn, says that the annexed schedules state the value and damage of the merchandise damaged by fire in the building 101 & 103 Broad St. on tbe 16th of December, 1891. In estimating tbe damage of tbe merchandise tbe value of tbe salvage in various'instances is not considered, as many of tbe goods damaged and saved bave for us no commercial value, as. tbeir original condition is changed and tbeir proper value should be ascertained by appraisement.” This addendum, which, although printed in tbe shape of an oath, does not appear ever to bave been sworn to, it is claimed, made the presentation of tbe proofs of loss simply a proposition for appraisement.

Tbe court, in its charge, seems to bave presented with great clearness and fairness this question to the jury, charging, at tbe request of tbe defendant, that if they believed that tbe defendant, in presenting tbe proofs of loss, did not intend thereby to call for the payment of any specific sum of money, but only asked for an ascertainment of the loss by appraisers to be thereafter appointed, or otherwise, then he must be acquitted, thus clearly presenting the precise question to the jury as to whether Spiegel intended these proofs of loss to be a claim against the insurance company or not. It is true that he qualified this request by adding the words, “unless the jury find it to be a part of a fraudulent scheme,” this qualification clearly referring to what had already been stated in the charge in regard to the intention with which this appraisement clause was added to the proofs of loss.

There seems to be no doubt upon the whole record that the appellant in presenting these proofs of loss presented them under the provisions of the policy requiring their submission. And that he was making a claim thereon is evidenced by the proofs of loss themselves as distinctly as language can state it. Merely because he says in an addition to the claim that he is uncertain as to the amount of salvage upon some of the articles, does not change the character of the paper. It was a claim under oath stating his damage to be over $70,000, and his claim against-this insurance company to be $7,000, whereas, from the evidence, the jury had a right to find that the damage did not exceed $2,000, and his claim against this insurance company was not over $400. It would appear that there was no foundation for the request which was made and refused, and consequently no error in the ruling.

But it is urged that the court committed an error in refusing, after having completed his charge, to present additional requests to the jury.

It appeared that, prior to the commencement of the charge, written requests were handed up by the counsel for the defendant as to the subjects upon which the defendant requested the court to charge the jury. During the progress of the charge, these requests were ruled upon — either charged to the jury as requested, or qualified, or definitely refused. After all this had been done and the jury were about to retire, the counsel for the defendant said: “ In connection with your remarks on the evidence, I request as to the testimony of McKenna — ” The court interrupted the counsel, declining to present any more requests, to which ruling the counsel for defendant seemingly assented, taking no exception.

This condition of the record does not show any ground for reversal, nor that the defendant has been injured by the ruling of the court.

The next question presented is as to the use of the books of the defendant upon this trial, which it is claimed were taken from him by means of search warrant proceedings. "We do not find, upon an examination of the record, that any but one of the books taken by the search warrant proceedings was produced from the custody of the People, and that seems to have been an inventory which was introduced in evidence. In the determination of this question it is not necessary to pass upon the interesting point raised by the learned counsel for the defendant, because no exception was taken to the admission of the evidence, and it is not necessary to decide how far the books, papers and implements of a person charged with crime can be used against him.

There is no constitutional question involved, as seems to be claimed, such as existed in the case of Cancemi v. People (18 N. Y. 128). In that case there was an error in the constitution of the tribunal before which the prisoner was convicted. Such an error is very different from one which is committed in the course of a trial, to which attention has not been called. The prisoner has.no constitutional right to be convicted by evidence that shall be competent in every particular, although he has a constitutional right that the tribunal before which the evidence is introduced shall be constructed according to law.

In the case at bar, even if the contention of defendant’s counsel is well founded (which we do not pretend to decide) evidence was simply admitted which might have been objected to by his counsel, and was not. This clearly cannot form any ground for the reversal of a judgment.

In the consideration of the exceptions to which attention has been called, it has not been necessary to state with particularity all the evidence which has been introduced upon the trial, and as was said in the commencement of this opinion, it is impossible so to do. But upon an examination of such evidence it does not appear that it is the duty of this court, for errors alleged which were not excepted to, and to which attention ivas not called, to reverse this conviction upon the ground that injustice has been done. There was evidence before the jury justifying the verdict rendered by them, and with their conclusion we see no reason to interfere.

It follows, therefore, that the judgment appealed from should be affirmed.

Follett and O’BeieN, JJ., concurred.

Judgment affirmed.


author: Follett, J.: O’BrieN, J.

text:
    John H. Dwight and Others, Respondents, v. Howard G. Badgley, Appellant.

      The knowledge of an agent biiids his principal — intent, how determined, and from what inferred — ■ evidence as to gambling contracts.

    The knowledge of a person’s agent is his knowledge, and is binding upon him. It is competent for a .person to testify that he engaged in a transaction in good faith or with a particular intent, hut if the transaction he such that, from it or from other evidence, a different intent than the one testified to by him may be fairly inferred, the question with what intent the act was done is to be determined by the jury; and it may be inferred from the course of the dealings between the parties.
    What evidence is sufficient to present a question for the jury whether certain transactions amounted to gambling contracts, considered.
    (O’Brien, J., dissenting.)
    Appeal by the defendant, Howard G. Badgley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 12th day

      ■of January, 1892, upon the verdict of a jury for $2,562.28, rendered by direction of the court after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 9th day of Eebruary, 1892, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

      Edwin B. lemitt, for the appellant.

      Wolff <& Hodge, for the respondents.
   Follett, J.:

Hedge, the plaintiffs’ principal witness, and with whom the defendant had his transactions, was the New York agent of the plaintiffs. He testified: “In these transactions I was associated with Dwight and Gillette as broker, and I received my commissions from them, and in each one of these transactions I was paid my commissions by Dwight and Gillette, the plaintiffs.”

The defendant testified: “ Q. What was your intention in regard to these transactions and to the delivery of .this wheat and the purchase and sale of it at the time you made these transactions ? A. My intention was entirely to buy and sell on options, and to adjust the difference. Q. Between the market price of buying and the market price of selling ? A. Yes; that was, distinctly stated to Mr. Hedge. Q. Did he state that to you? A. That was distinctly understood. Q. Was there anything said in regard to how the profits or losses should be adjusted ? A. Most assuredly. Q. What was said ? A. I cannot remember the specific conversation, but the substance of it was he would buy and sell on options, and the difference I should have, if any, in my favor. Q. But if it was a loss, you should lose what you put up? A. Yes. Q. And that was so in regard to each one of these transactions ? A. Yes, each and every one.”

Here is positive evidence that it was distinctly stated between the plaintiffs’ agent and the defendant that the contracts were to be gambling contracts. The knowledge of the plaintiffs’ agent is their knowledge, and it is binding on them. It is conceded that none of the grain mentioned in these transactions was ever delivered, and there is no evidence that the plaintiffs owned any grain, or that they purchased any for delivery to the defendant. All of the purchases were for future deliveries, and the statements of the transactions rendered by the plaintiffs and them bill of particulars corroborate the testimony of the defendant that the transactions were intended by both parties to be wager contracts.

The plaintiffs’ agent did not deny that he had the conversation with the defendant as testified by defendant. It is true that he testified that he intended that the grain should be delivered. It is competent for a person to testify that he engaged in a transaction in good faith, or with a particular intent, but if the transaction be such that from it, or from the other evidence in the case, a different intent may be fairly inferred, the question with what intent is one for the jury. If the testimony of a party that he committed an act, which, if done with a lawful intent, would be innocent, but, if with an unlawful intent, a crime, is to be held conclusive, convictions in criminal cases in which intent is a material fact will be quite difficult.

The intent with which those parties bought and sold may be inferred from the course of dealing between them. (Kenyon v. Luther, 4 N. Y. Supp. 493 ; S. C., 19 N. Y. St. Repr. 32.)

I think the evidence presented a question of fact for the jury, and that the court erred in directing a verdict for the plaintiffs.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

PARKER, J. concurred.

O’BrieN, J.

(dissenting):

The action was brought to recover upon an account for certain goods purchased, services rendered and moneys advanced. The plaintiffs were commission merchants and brokers in Chicago. Through one Hedge, their agent at New York city, they had transactions with the defendant, which consisted in the purchase and sale for him of wheat and corn, which resulted in a loss, and for which, less the amount already paid by defendant, the action is brought.

Though two exceptions were taken to rulings upon evidence, one of which alone is urged, it is unnecessary to discuss them, as a mere examination will demonstrate that they are untenable. The substantial and important question, going directly to the merits, is whether or not the direction of a verdict in plaintiffs’ -favor was right.

The controversy centered upon whether the purchases and sales were actual transactions or mere bookkeeping, the form of actual transactions being assumed, but the real intent of the parties being to gamble upon the differences between the market value and the contract price. Appellant insists that there was sufficient evidence to render it necessary, on his request, for the trial judge to submit the question to the jury, whether it was the intention of the parties that the grain purchased or sold should not be delivered, and that only the difference between the contract and market price should be adjusted, thereby rendering the contracts void as mere wagers; and that the direction of a verdict against him was error.

Two witnesses, Hedge and Palmeter, who represented plaintiffs, swore in positive terms that it was not their agreement or intention to deal in differences, the latter testifying that the orders were executed by his telegraphing to and receiving a reply from Chicago that the firm there had bought the wheat on the exchange or board of trade, and that the wheat was ordered to be ready for defendant at the time it was contracted to be delivered. Defendant, on the other hand, testified that he had no intention to contract for delivery of either wheat or corn, and that the understanding was a contract to merely speculate in differences. Defendant also testified that the substance of the conversations between himself and the plaintiffs’ agent as to the character of these transactions was, that he, the plaintiffs’ agent, would buy and sell on options, the differences, if resulting favorably, to go to defendant, and if a loss, to be paid by defendant.

If the question were solely as to defendant’s intent this testimony would have been sufficient to require its submission to the jury. It was necessary, however, for defendant, in support of the burden placed on him of establishing the defense of a wagering contract, to give some evidence tending to show, not that he alone, but that both parties to the transaction intended to gamble, the rule being, When it is necessary to prove concurrence of intent, as in an illegal agreement, the intent of each must be proven.” This rule was laid down in the opinion of this General Term on the former appeal (14 N. Y. Supp. 498), and finds support in abundant authority.

Now, wlio were the parties to these contracts? Certainly not the plaintiffs and the defendant. The defendant never contracted to sell to or buy from the plaintiffs any wheat. As said in Lehman v. Strassberger (2 Wood C. C. 554), which was an action in many respects similar to the case at bar: The parties with whom Strass-berger contracted were persons other than Lehman Brothers, whose names are not disclosed, and Lehman Brothers were only factors of Strassberger to make contracts with other parties,” the plaintiffs being mere agents for the defendant in the transaction.

In that case, where the brokers had advanced money to the principal to pay losses incurred in an illegal transaction, and took his note for the money so advanced, it was held that a recovery could be had upon such note.

The case at bar, for the plaintiffs, is stronger than the one cited, because, even though it be assumed that plaintiffs were bound by the knowledge of their agent that the defendant intended not to buy or sell wheat for actual delivery, but only to adjust differences, no evidence was offered tending to show that the persons with whom the plaintiffs dealt on behalf of the defendant had a similar intention not .to receive or deliver the actual commodity, pursuant to the contract made. On the contrary, the only testimony showing the intention of the undisclosed principals with whom the defendant, through plaintiffs, contracted, is, that the transactions between them were regulated and controlled by the rules of the Chicago Board of Trade, which will not be presumed to have adopted an illegal course of business.

■ As said in Story v. Salomon (71 N. Y. 422): “We should not infer an illegal intent unless obliged to. * * * We may guess that the parties were speculating upon the fluctuations in the price of the stock, and that the defendant was not to be required to take or deliver any stock in any case, but simply to pay differences. But a contract which can have legal interpretation and effect should not be condemned, without any proof, in that way.”

These cases, relied upon by defendant, were different in their facts, and are easily distinguishable. Thus, Peck v. Doran (57 Hun, 345) was an action to recover, under the statute, money lost by plaintiff under a wagering contract with defendant upon the market price of wheat. It was therein testified that the defendant’s agents at the commencement of the dealings had stated that “ they assumed their orders and booked them themselves; that they had no wheat to deliver and didn’t expect their customers to want any wheat; that it was merely to adjust the difference as between the market price and the prices marked on the slip ” (contract).

Kenyon v. JOuther (4 N. Y. Supp. 498) was an action brought, as here, to recover for commissions earned and losses sustained by plaintiff. By evidence, excluded and excepted to, defendant offered to prove, not only that he did not intend to purchase any wheat, but also the course of dealing between plaintiff and the person in whose name the contract was made, and thus to show circumstances which might have established, or tended to establish, the fact that the same intent existed on the part of the plaintiff. The opinion, after referring to the rule that in the absence of evidence to the contrary an illegal intent will not be presumed, continues: “We are unable to say that if the defendants had been permitted to prove their intent and the course of dealing between the plaintiff and the person in whose name the contract was made, that they would not then have furnished evidence which would have been sufficient to establish their defense, or at least sufficient to have made a question of fact for the jury.”

We start, therefore, with the well-settled legal proposition that the burden of proof was on the defendant to establish his defense. This required that he should prove or present sufficient evidence to make it a question for the jury, that the transaction as between all the parties was a wagering contract. If here it had been shown, as in Peck v. Doran (supra), that the contract was really one made between the plaintiffs and the defendant, then unquestionably there would have been sufficient evidence, not only of defendant’s intention, but also of the mental condition of the plaintiffs’ agent, which would have been binding upon them as to their intent. Thus, in addition to defendant’s own testimony as to the conversation between him and plaintiffs’ agent, the accounts rendered would be consistent with the view that there was an intention on plaintiffs’ part to deal only in differences. But when we remember that the contract was made with third persons as affecting whom not a scintilla of evidence was offered, such accounts are equally consistent witli the view of actual transactions. Upon such evidence, equally consistent with two diverse views, one of which would uphold the contract as legal and the other condemn it as illegal, the former view should prevail.

Put in its strongest light all that the defendant’s evidence tended to prove was, that the plaintiffs as his brokers had knowledge of his intent not to actually receive or deliver wheat, but merely to settle differences upon the rise and fall of the market. But tlws, without evidence that the persons with whom the contract was made had a similar intent, would not stamp the contracts themselves as wagering contracts, and thus illegal, because here again, until the contrary was shown, the legal presumption would be that they were valid. No proof was offered, except by plaintiffs, as to the manner of executing the orders ; and yet, although they testified directly to the contrary, we would have to assume, in order to sustain defendant’s position, that a jury would be at liberty, without proof, to guess and thus decide that no wheat or corn was ever bought or sold by plaintiffs for defendant’s account, although, as stated, the only evidence given was all the other way.

Appellant contends, however, that as such witnesses were interested, it was for the jury to determine the truth or falsity of their testimony. "We think that in appealing to this rule the appellant overlooks the fact, already twice adverted to, that the burden of showing the transaction to be an illegal one was on him, and that the direction of a verdict resulted from his failure to sustain such burden by any or sufficient proof to make it proper or essential to submit the question'to the jury. Inasmuch as the quantum of proof to be presented in a case like this was very fully and ably discussed in Bigelow v. Benedict (70 N. Y. 207), it is unnecessary for us fo-réstate it. As the defendant failed to offer any evidence tending to show the intent of the persons with whom the plaintiffs on his behalf contracted for the purchase or sale of wheat, there was no question for the jury, and the direction of the trial court was right.

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

Judgment and order reversed and a new trial granted, with costs to the appellant to abide the event.