author: Daniels, J.: Brady, J.

text:
    PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS CONNOR, Appellant.

      Indictment — when an allegation, not required by the Oode, and the admission of proof of the fact alleged, does not injure the defendant— Oode of Criminal Procedure, sec. 542.
    One Connor, was convicted under a count contained in an indictment, which alleged the commission of an assault feloniously, willfully and wrongfully made by him by a pistol then and there loaded with gunpowder and a leaden bullet, which was in the right hand of the said Connor, and was pointed at the complaining witness with intent to shoot off and discharge the same. The weapon was also alleged to be an instrument likely to produce grievous bodily harm.
    The existence of the intent charged in the indictment, to shoot off and discharge the weapon, was not required by subdivision 4 of section 218 of the Penal Code, defining an assault, but evidence was given on the trial from which an intent to shoot off and discharge the weapon could be inferred. It was claimed by the defendant that he was entitled to a reversal of the judgment because of this additional allegation and the admission of the evidence given in support thereof.

      Held, that, though the prosecution did more than it was obliged to do to secure the conviction of the defendant, he was not injured by such action, and was not entitled to complain of it under the provisions contained in section 542 of the Code of Criminal Procedure. (Brady, J., dissenting.)

      Mulligan v. People (5 Park. Crim. B., 105) distinguished.
    Appeal from a judgment, entered after a trial on February 4, 1889, at tbe Coxu-t of General Sessions of tbe County of New York, convicting the defendant of an assault in tbe second degree.

      Alfred & Charles Steckler, for tbe appellant.

      William Travers Jerome, for the respondent.
   Daniels, J.:

Tbe defendant was convicted under tbe second count contained in tbe indictment, tbe first having been withdrawn from tbe consideration of tbe jury. This count alleged an assault feloniously, willfully and wrongfully made by him by a pistol then and there loaded with gunpowder and a leaden bullet, which was in tbe right band of tbe defendant and pointed and presented at tbe complaining witness, with intent to shoot off and discharge tbe same. Tbe weapon was alleged also to be an instrument likely to produce grievous bodily barm. This count in tbe indictment appears to have been framed under subdivision 4 of section 218 of tbe Penal Code, declaring a person to be guilty of an assault in tbe second degree who willfully and wrongfully assaults “ another by tbe use of a weapon or other instrument or thing likely to produce grievous bodily barm.” Tbe intent charged in tbe indictment against the prisoner, to shoot off and discharge tbe weapon, has not been required to create tbe offense described in this subdivision of tbe section. But evidence was given on tbe trial, from which such an intent could be inferred, for tbe complaining witnesses testified that when tbe defendant pointed tbe pistol, which was proven to have been loaded, at him, be stated that be would shoot tbe witness, who then jumped behind a partition in the back-room. From this statement an intent to shoot could- be inferred under the decision which was made in Mulligan v. People (5 Parker, 105). On tbe charge which was given to the jury, their verdict of guilty of the offense, in this manner alleged, was made to depend upon the existence of this intent, as well as upon the additional fact that the weapon was an instrument likely to produce, as it was pointed, grievous bodily harm. No injury accordingly resulted to the defendant by the allegation and proof of this additional attribute, to those required to convict him of the crime for which he was found guilty. It, on the contrary, imposed an additional burden upon the prosecution, beyond that required by the statute. And if, in the judgment of the jury, the evidence had failed to establish the existence of this intent, then the defendant would, from the charge of the court, have been acquitted. They considered the intent to have been proved. And as the evidence left no doubt concerning the other circumstances necessary to constitute the crime, they found the defendant guilty, and that they very well could do, for this crime of an assault in the second degree, although the indictment charged, and the proof tended to establish more than the law required to make out the offense.

It is supposed that the case of Mulligan v. People (supra), supports the right of the defendant to a reversal of this judgment, because of this additional allegation and proof. But such is not its effect. The indictment in that case was found under a statute makit a felony to shoot at another, or attempt to discharge any kind of fire-arms or any air-gun at another with the intent to kill, maim, etc., such other person. (3 R. S. [6th ed.], 938, § 46.) The weapon in that case was an uncocked pistol, and the court was asked to charge that pointing this weapon at the person was not an attempt to commit the crime mentioned in this section of the statute. The intent there was essential to the commission of the crime described in the statute. It could not be committed without the existence of the intention. And as that was not proved, by reason of the circumstances that the pistol was uncocked, the court held that the jury should have been so directed. But m this case the intent was not made by the law an attribute of the crime. But still it was alleged to exist, and the evidence was sufficient to sustain the jury in finding that the intent did, in fact, exist. For it did not appear that the pistol was uncocked, but it was pointed by the defendant, at the complaining witness, accompanied with the threat that he would shoot him then. And from this circumstance, accompanied with the threat, the jury cofdd infer that the pistol was in a condition at the time to be discharged. In Regina v. Lewis (9 Car. & Payne, 523), the indictment was found under a statute -making it an offense to attempt to discharge a fire-arm at another. The evidence proved that the defendant, at the termination of an interview between himself and the complainant, unfolded a coat on his arm and took out a blunderbuss, saying then “you are a dead man.” This was not pointed at the witness, and not up to the defendant’s shoulder, when he was seized by his two arms and his collar and thrown down upon a sofa and then secured. The witness added: “ The blunderbuss was never pointed towards me.” And that materially distinguishes that case from the present one. The court held at the trial that this was not sufficient to bring the case within the statute and the defendant was acquitted. In Regina v. St. George (Id., 483), the defendant presented a loaded pistol at the complaining witness, but was prevented from pulling the trigger. And it was held at the trial that he could not be convicted on an indictment for felonously 'attempting to discharge loaded arms at the witness. As to the case first cited from this report there seems to have been fair ground for the acquittal of the defendant. But as to the case last referred to, it certainly does not seem to have been well decided. For pointing a loaded pistol at a person, which he was prevented from discharging by the intervention of another, would be an attempt to discharge it at the person towards whom it was pointed. And that was considered to be the rational conclusion in Queen v. Brown (L. R., 10 Queen’s B. Div., 381), where the correctness of the decision in Regina v. St. George, and also the case of Lewis, was so far doubted and criticised as substantially to deprive the earlier case at least of its authority. But even if they were not, in effect, overruled at that time, the decisions contained nothing whatever which would exonerate this defendant from guilt under this subdivision of the statute. For he did all that the subdivision has prescribed to create the offense, and he did it also with the intention alleged in the indictment, forming no necessary part of the crime. The prosecution did more than it was legally obliged to do to secure the conviction of the defendant. He was not injured, but was benefited by this excess. And he is not entitled to complain of it under the enactment contained in section 542 of the Code of Criminal Procedure. The judgment should be affirmed.

Yan Brunt, P. J., concurred.

Brady, J.

(dissenting):

The appellant was indicted under section 218 of the Penal Code for an assault in the first and second degrees. Upon the trial the charge as of the first degree was withdrawn. The prisoner was convicted of the crime of an assault in the second degree and duly-sentenced. The act by which it was held the crime was completed was in pointing a loaded pistol at the complainant, who was within shooting distance, accompanied by the threat “ I will shoot you now.” He had within a short time before struck the complainant on the breast without altercation or provocation, and his conduct was, therefore, willful and wanton. The indictment charged the act, and that it was done with intent to shoot off and discharge the pistol. The-statute does not require such a charge. The fourth subdivision is as follows: "Willfully and wrongfully assaults another by the use of a weapon or other instrument or thing likely to produce grievous-bodily harm,” and makes the act, therefore, without reference to the intent with which it is done, a crime. Unless the legislature intended that such act, however dangerous, and however productive of terror, was not punishable, no other interpretation can be given the language employed. And this view is in accordance with an elementary principle well stated in Bishop’s Criminal Law (7th ed.), section 32, as follows: There is no need for the party assailed to be in actual peril, if only a well-founded apprehension is created. Por his suffering is the same in one case as in the other, and the breach of the-public peace is the same. Therefore, if, within shooting distance, one menacingly points at another with a gun, apparently loaded, yet not loaded in fact, he commits an assault the same as if it were loaded.” It is quite a familiar rule that an assault is any attempt or offer with force or violence todo corporal hurt to another, whether from malice or wantonness, as by striking at him with a cane or holding up the fist at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention coupled with a present ability of actual violence against his person as by pointing a weapon at him when he is within reach of it. (Boscoe’s-Orim. Ev., 210.) And the distinction between the assault, which is in fact only a menace, and the commission of the act, of which it may be said to be the precursor, are settled by the differences in the punishment meted out for each ofíense. If the indictment had set out the assault alone there would, therefore, be little doubt about the propriety of the conviction appealed from, but it did not. It went farther and charged the appellant with pointing the pistol, intending to shoot it off and discharge it against the body of the complainant. Both of these phases of the question were presented by the charge of the learned justice presiding. He said, after a more elaborate statement of the ofíense charged :

“ Briefly, a person who assaults another with a weapon or a thing likely to produce grievous bodily harm, is guilty of assault in the second degree, if the assault be willful and wrongful. So, if you shall find from the evidence in this case that this defendant did point this revolver at the complainant, and that act was a willful and wrongful act, then I charge you that the crime that has been committed was the crime of assault in the second degree, and thus omitted the element of intent, which was in harmony with the statute, but less than the indictment required, that paper, as we have seen, charging a felonious intent.” But the learned justice qualified that instruction by these observations: “Tour duty is first to consider, upon retiring to your jury room, whether this defendant is guilty of the crime of assault in the second degree, whether he willfully, wrongfully assaulted another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm. It yras not necessary that he should have fired that weapon to constitute the crime. If he pointed it with the intent to inflict an injury upon the complainant, that is assault in the second degree, if he had a willful and wrongful intent at the time of so doing, if his intent was to commit an assault. If the defendant at that time had a willful and wrongful intent, and if that is shown, he is guilty of the crime of assault in the second degree; ” in which intent to inflict an injury was said to be essential, which is an error, although consistent with the elements of the crime as charged in the indictment. The statute designs to punish for pointing a dangerous weapon, willfully and wrongly, because it is likely to produce a grievous bodily harm. If it be a pistol, it might be discharged, and if not, it might produce a sense of peril which would not he mitigated by the unknown fact that, it was not loaded or cocked or could not be discharged for any reason. The presentation in a threatening manner constitutes the assault which is contemplated by the statute and made an offense. When', however, there is added the further element of intention to shoot, it is not to be inferred from the mere pointing of the pistol at another. There must be something more than this, such as that the trigger was pulled, or the pistol was cocked, or that it was self-cocking, and the prisoner’s finger was on the trigger. Such is the rule of the cases bearing upon the subject, and they are consistent with common sense when a distinction is made between an assault with intent to inflict bodily harm and one without such intent. It is in the latter case, as already suggested, that the assault is a crime for the reason that it is likely to produce the result stated. Such is the language of the statute. Under the Revised Statutes (2 R. S., 665, § 36), on an indictment for attempting to discharge a pistol with intent to kill, it was held that the pointing of an uncocked Oolt’s revolver at a pei’son was not an attempt to discharge the weapon. (Mulligan v. The People, 5 Parker, 105; Reg. v. Lewis, 9 Car. & Payne, 523, 483.) There is no evidence in this case of any act other than the pointing of the pistol, and that is not sufficient to justify a finding that it was done with intent to shoot it off although accompanied by a threat. It was a willful and wanton act, as already said, and a crime, but it was not the offense charged in the indictment and submitted to the consideration of the jury. The point is well taken, therefore, that the verdict rests upon no evidence to sustain it on the element of intent, there being no proof that the pistol was cocked or that any attempt was made to cock it, or any act done preparatory to its discharge. For these reasons the judgment should be reversed and a new trial ordered.

Judgment affirmed.


source: Caselaw Access Project

author: Daniels, J.: Yan Brunt, P. J.: Barrett, J.:

license: Public Domain

text:
    IRENE PINTO DE CARRILLO, Respondent, v. ENRIQUE CARRILLO, Appellant.

      Bill of pa/rticulcurs— not ordered unless a party establishes his ignorance of the facts required to be furnished thereby — pa/i'ticularity required in framing issues for trial.

    In an action for divorce, in wliich the complaint alleged adultery on the part of . the defendant at the city of Havana, on the Island of Cuba, at divers times between the 1st of January, 1887, and the commencement of the action, with a woman whose name was unknown to the plaintiff, a motion was made by the defendant for a bill of particulars. No affidavit whatever was made by the defendant and no information appeared to have proceeded from him, in any form, Indicating his inability to meet this charge by uroof on the trial.
    The affidavit, upon which the motion was made, was verified by one of the attorneys for the defendant, in which he stated that it was not possible for himself or the defendant to make good the defense unless the plaintiff furnished particulars as to the specific dates on which the acts alleged were said to have been committed, and also as to the places in the city of Havana at which they were alleged to have taken place.

      Held, that this affidavit of the attorney was insufficient to entitle the defendant to a bill of particulars, as it failed to establish the fact that the defendant himself was, in any manner, ignorant of the individual with whom or of the time or places at which the adultery was alleged to have taken place.
    That, as the issues in this action had, on the application of the defendant, been directed to be tried by a jury and special issues were required to be framed, that in framing those issues care should be taken to add such certainty to the charges of misconduct on the part of the defendant as would afford him a complete opportunity to meet such charges by proof upon the trial.
    Appeal from an order made at a Special Term held in the county of New York, dated January 21, 1889, which was entered in the office of the clerk of the county of New York on the same day, denying a motion made by the defendant for a bill of particulars.

      Emmet R. Olcott and William Q. Judge, for the appellant.

      William Nelson Cromwell and Merritt E. Haviland, for the respondent.
   Daniels, J.:

The complaint, which is for a divorce, alleged adultery on the part of the defendant, at the city of Havana, in the Island of Cuba, at divers times between the first of January, 1887, and the commencement of the action, with a woman whose name is unknown to the plaintiff. And it was principally as to this averment that the motion was made for a bill of particulars, and, ordinarily, where the motion is sustained by the affidavit of the party, stating his inability to meet the charge without a more particular description or statement of the facts attending it, a bill of particulars will be ordered (Cardwell v. Cardwell, 12 Hun, 92); or when the motion is made in time the complaint may be directed to be made more definite and certain. But the defendant is not necessarily, and, as a matter of course, entitled to such a bill of particulars. (Mitchell v. Mitchell, 61 N. Y., 398.) To entitle his application for the bill to success, his probable inability to meet the allegation as it is set forth in the complain should be shown, for, notwithstanding the very general nature of the allegation, he may be fully aware of the individual intended to be referred to in making it; and if he has that knowledge or information, then he cannot be misled or prejudiced in his defense by the omission to state the name, or give the description of the person in the complaint, or to designate the place where the misconduct may have occurred.

In this case no affidavit whatever has been made by the defendant, and no information appears to have proceeded from him, in any form, indicating his inability to meet this charge, by proof upon the trial, in the form in which it has been made. His answer was not sworn to, as it was not required to be by the practice of the court; neither has he, in any manner, asserted his ignorance of the person or place intended to be referred to in this paragraph of the complaint. But the affidavit on which the motion was made is that of the attorney for the defendant, and he has stated in his affidavit that it is not possible for himself or the defendant to make good the defense, unless the plaintiff furnishes particulars as to the specific dates on which the acts alleged are said to have been committed, and also the places in the city of Havana at which they are alleged to have taken place, and that a bill of particulars is required by the defendant for this purpose. This affidavit of the attorney is wholly insufficient to entitle "the defendant to a bill of particulars, for it fails to establish the fact that the defendant himself is in any manner ignorant of the individual or of the time or places where the adultery is alleged to have taken place. On so defective an affidavit as this was, the court was right in refusing the motion for a bill of particulars. In addition to that, there was so much delay in making the application that it was not entitled to the favorable consideration of the court.

The issues in the action have been directed to be tried by a jury on the application of the defendant. For that trial special issues are required to be framed, and, in framing those issues, care will be taken, on the objection of the defendant, to add such certainty to the charges of misconduct on the part of the defendant as will afford him a complete opportunity to meet, by proof, such charges upon the trial. Where the complaint is too general and indefinite, it has been the practice, in settling the final issues, to express them with such a degree of particularity as will avoid all ground for surprise on the part of the defendant. ( Wood v. Wood, 2 Paige, 108-113.) That course is still available for the defendant, and will entitle him to such a statement of the facts as will enable him, understandingly and carefully, to prepare for the trial.

The order from which the appeal has been taken should be affirmed, together with ten dollars costs and also the disbursements.

Yan Brunt, P. J.:

I concur, uj>on the ground that the court should, in framing the issues as to adultery (which are the only issues to be tried by a jury), see that such issues are sufficiently definite and certain to apprise the defendants of the specific charges which he is called upon to meet.

Barrett, J.:

I concur upon the same ground. The issued to be framed should be specific.

Order affirmed, with ten dollars costs and disbursements.


author: Barrett, J.:

text:
    NATHANIEL JARVIS, Jr., Plaintiff, v. THE MANHATTAN BEACH COMPANY, Defendant.

      Estoppel — liability of a corporation for stock fraudulently issued in excess of the a/uiliorieed capital thereof.

    Edward C. Fox & Co., a firm of brokers, were requested by one Fullerton, tbe clerk of tbe Manhattan Beach Company, to sell 100 shares of its stock standing in the name of B. Bignell, the certificate for such stock having appended to it the genuine signatures of the defendant’s president and assistant treasurer, and having been regularly countersigned and registered by the Central Trust Company. Bignell was a fictitious person, and a fraud had been committed by Fullerton, who had obtained the genuine signatures of the officers of the company to, and had receipted in Bignell’s name for this certificate after all the authorized capital stock of the company had been issued and was in circulation, and had also signed the name “ B. Bignell” to the transfer on the back of the certificate and then witnessed the signature in his own name.
    Before selling the certificate Fox & Co. made inquiry at the Central Trust Company and were there informed that the stock was properly registered, and at the general office of the Manhattan Beach Company, which was also its general transfer office in the city of New York, and were there informed that the stock was properly indorsed for transfer and that the person in charge was then willing to make the transfer. Fox & Co. thereupon sold the stock in September, 1882, and paid over the purchase-price, less commission to Fullerton, and heard nothing more of it until March, 1884, when Fullerton absconded, and this, together with other fraudulent transactions, were discovered.
    The Manhattan Beach Company having notified the Stock Exchange of the invalidity of the certificate, Fox & Co., who were required by the rule of the Stock Exchange to make good their guaranty, as to its validity, did so and received the certificate of stock back from their vendee, and subsequently demanded a transfer of such shares of stock from the Manhattan Beach Company, which was refused; against which corporation an action was thereupon brought by the assignee of Fox & Co.

      Held, that the defendant, the Manhattan Beach Company, was estopped to deny the validity of the certificate.
    That the plaintiff .was entitled to genuine stock therefor if that were possible; but that, that being impossible, he was entitled, upon the defendant’s repudiation of the certificate, to recover appropriate damages.
    Motion by tbe plaintiff for a new trial after a dismissal of bis complaint at tbe New York Circuit March 13, 1889, and a direction that tbe exceptions in tbe case be beard in tbe first instance at tbe General Term.

      W. D. Guthrie and Victor Morawetz, for the plaintiff.

      W. J. Kelly, for the defendant.
   Barrett, J.:

The plaintiff sues as assignee of a firm of stockholders, Edward O. Fox & Co. The action is for damages sustained under these circumstances : Fox & Co. were requested by one Fullerton to sell 100 shares of the defendant’s stock, standing in the name of B. Bignell. Fullerton was at the time the defendant’s clerk. He handed Fox & Co. a Certificate for the 100 shares, which appeared to be entirely genuine, but which, in fact, was not. It had appended to it the genuine signatures of the defendant’s president and assistant treasurer ; and, at the defendant’s request it had been regularly countersigned and registered by the Central Trust Company. B. Bignell, however, was a fictitious person, and when the defendant’s officers negligently signed the certificate in question, all the authorized capital stock of the company had been issued and was in circulation. The fraud was Fullerton’s. He had receipted for this certificate in Bignell’» name on the books of the company. He had also signed the name “ B. Bignell ” to the transfer on the back of the certificate, and then witnessed-the signature in his own name. That was the condition of things when Fullerton asked Fox & Co. to sell the certificate. There is a rule of the Stock Exchange known to the defendant, which, • as between members, requires that the seller of the stock shall guaranty to the purchaser the correctness of the certificate, and also of the transfer. Fox & Co. sold the stock, and in eonrpliance with the rule gave the necessary guaranty. Before doing so, ho wever, they made inquiry at the Central Trust Company and were there informed that the stock was properly registered. They then made inquiry at the defendant’s general office, which was also its general transfer office in this city, and were there informed that the stock was properly indorsed for the transfer, and that the person in charge was then willing to make the transfer. Hpon this Fox & Co. acted. The stock, with their guaranty, was sold and delivered; and the purchase-price, less commission, was paid over to Fullerton, This was in September, 1882, and nothing more was heard of the matter until March, 188é, when Fullerton absconded, and this and other frauds of Ms were discovered. Thereupon the defendant notified the Stock Exchange of the invalidity of several certificates, this .among the number, and that they would not be accepted as genuine ■stock of the company. Fox & Co. were thereupon required to make good their guaranty which they did, receiving the certificate back from their vendee and subsequently demanding a transfer from the ■defendant, which was refused. The defendant having entirely repudiated this spurious stock, the present action was brought.

Upon this state of facts, we think the learned judge erred in taking the case from the jury and dismissing the complaint. It is conceded that the case is to be treated as though Fox & C#. had purchased the stock from Fullerton. The principle is the same whether they purchased or guaranteed. In either case they are out of pocket the price of the stock. The payment under the guaranty was compulsory, and they were then subrogated to the worthless security. It also seems to be conceded that if Fox & Co. had originally availed themselves of the transfer clerk’s offer, and had had the stock transferred into their names on the books of the company, the latter would have been estopped. Such, at all events, was the decision of the Circuit Court (Wallace, J.), in Manhattan Beach Co. v. Harned (27 Fed. R., 484). There the purchase had been made without any previous inquiry of the company, yet the court held that it was estopped by issuing a new certificate. By that act “ they not only reaffirmed the authenticity of the surrendered certificate, but recognized the defendant's title to the shares, and thereby authorized the defendants to repose, without further inquiry, upon the validity of the title they had acquired.” And the court further held, that the company was estopped by its subsequent negligence in not discovering the fraud and notifying the defendants in' time to enable them to seek restitution from the swindler.

Here the brokers made the fullest inquiry before the purchase, and the company recognized the title of the holder of the blank assignment, and authorized Fox & Co. to “ repose without further inquiry ” upon the validity of such title. The learned judge in the Harned case intimated that the invalid certificate was not the proximate cause of the injury, for the reason that the purchaser had relied solely upon the fraudulent transfer. It should not be overlooked, however, that Bignell has no being and is a fictitious-person. This is averred in the answer and was not questioned upon the trial. Now, the certificate was an affirmation that Bignell was. a real person and the true owner of the shares (Holbrook v. New Jersey Zinc Co., 57 N. Y., 616), with capacity to transfer them upon the books of the company. This affirmation of ownership- and capacity to transfer was as false as the affirmation that the certificate represented a part of the capital stock of the company.. The purchaser in the Harned case necessarily relied upon this, affirmation of ownership and capacity to transfer as well as upon the affirmation of the genuineness of the stock, for Gray, in whose name the stock there stood, was also a fictitious person.

These facts the defendants placed it in the power of Fullerton to-utilize. It is difficult to perceive, therefore, why the representation made by the issue of such a certificate was not the proximate cause of the injury. The purchaser paid his money in reliance upon the company’s affirmation that the individual upon whose signature the-transfer depended was a real person. As he was fictitious there could have been no genuine indorsement, and the purchaser lost nothing by the Shaw indorsement. He paid his money upon the false representation made by the certificate, that title could be acquired by a genuine assignment, when, in truth, a genuine assignment was impossible. The legal effect of such a certificate was substantially the same as if it had been issued to bearer.” Such is the rule with regard to bills put in circulation with a fictitious payee. (Coggill v. American Exchange Bank, 1 Comst., 113.) And the> analogy is not strained when we consider, as was said by the learned judge in the Harned case, that shares of corporate stock are dealt with in the market like negotiable paper or chattels; and the certificates issued as evidence of the ownership of the shares are the indicia of title and are treated as representing the shares themselves.”

It is not necessary,' however, to decide definitely whether the plaintiff could recover upon the representation made by the certificate standing alone, for this case differs from the Harned case, in the crucial fact that Fox & Go. did not rely upon the certificate-alone, but sought, as we have already seen, to make assurance- “ doubly sure,” to quote the testimony, by inquiry of the defendant. In considering the effect of this inquiry, it must be remembered that the company had caused its stock to be listed on the Stock Exchange, and that it was aware of the requirement of a guaranty (in transactions between members of that body) not only of the genuineness of the certificate, but of the indorsement. It knew, too, that membei’s of the board relied upon the company for information and invariably gave the guaranty upon the faith thereof. The company kept a record of its stockholders’ signatures, and it was its duty to verify such signatures when applied to for information as to the genuineness of the transfer. Indeed, such was the custom of Wall street, and the defendant was well aware that business was being transacted and transfers made upon the faith of the double inquiry; first as to the genuineness of the certificate, and, second, as to the genuineness of the transfer indorsed thereon.

In the light of these surrounding circumstances, Eox & Co. presented the certificate at the defendant’s general transfer office and were informed, as already stated, that it was- properly indorsed for transfer, and that the person in charge was willing to transfer it. The proximate cause of Fox & Co.’s injury was plainly this representation coupled with the affirmation of the certificate. This was ■a reaffirmation of the validity of the certificate, of the reality of B. Bignell, and of the genuineness of the signature of that fictitious person to the transfer indorsed. It was made with full knowledge of the inquiry (namely, that the stock might be safely purchased) and with the means directly at hand, in the books lying before the agent, of discovering the fraud and saving the innocent inquirer from loss. This is a plain case of estoppel, entitling the plaintiff to genuine stock if that were possible; but that being impossible, entitling him, upon the defendant’s repudiation of the certificate, to appropriate damages.

The authority of the person who made these representations is questioned. But the evidence on that head was certainly sufficient to go to the jury. (Leslie v. Knickerbocker Life Ins. Co., 63 N. Y., 34; Dunn v. Star Fire Ins. Co., 19 Week. Dig., 531.) Indeed, there was testimony from which the presence of the defendant’s treasurer, Mr. Moulton, might have been inferred; and that it was he who answered the inquiry. Fullerton was the transfer clerk and he acted under Mr. Moulton’s supervision and inspection.” The defendant’s present secretary, Mr. McDonough, testified that at the time when the inquiry was made “ there was no other employee of the Manhattan Beach Company in the office with Mr. Fullerton except the treasurer, .Mr. Moulton.” But even if it were not Mr. Moulton, the testimony was ample that it was at least an authorized person. Fox & Co.’s clerk testified that this person was in charge of the office and was in the regular employ of the defendant. "When Fullerton was out this person was in his place, and he had personally transferred stock for Fox & Co., and had had transactions with their clerk in regard to the transfer of certificates. This evidence being sufficient to go to the jury, the questions which the plaintiff asked to submit should, under the principle of the Schuyler Case (34 N. Y., 30), have been submitted; and, if answered in the affirmative, would have warranted a verdict for the amount received by Fox & Co., from the original purchaser and paid over to Fullerton. The exceptions should, therefore, be sustained and a new trial ordered, with costs to the plaintiff to abide the event.

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

Exceptions sustained and a new trial ordered, with costs to the plaintiff to abide the event.


text:
    JOHN W. BURCH and HENRY MILDRED, Plaintiffs, v. JOSE De RIVERA, Defendant.

      Continuing giim'anty — it does not continue after a change in the membership of the firm whose obligation is guaranteed.

    An action was brought upon a guaranty dated Heidelberg, Germany, October 28, 1874, signed by the defendant and addressed to Mildred, Goyenneclie & Co., London, guarantying to that firm an open credit of £5,000, in addition to the £5,000 that “the house of J. De Rivera & Co., of New York,” already enjoyed from the said firm, which contained the following provision: “And accordingly I cheerfully hereby guaranty to you the payment of the above mentioned additional credit of five thousand pounds sterling, my said guaranty to hold good until canceled.”
    At the time the firm received the guaranty the house of J. De Rivera & Co. was composed of Henry C. De Rivera and Antonio M. Ros, and it so continued until the year 1877, when Antonio M. Ros went out of the firm and Salvador Ros became a member of it. From that time the firm remained unchanged until 1886, when it failed owing to the plaintiffs the full £5,000 specified in the guaranty. This was entirely for moneys paid by the plaintiffs, under the credit, after the change of partners had taken place in 1877.
    Held, that the guaranty was not withdrawn from the general rule governing guaranties, because of the expression, “the house of J. De Rivera,” as that signified nothing more than the firm or partnership, J. De Rivera & Co.
    That the fact that the plaintiffs were not notified of the change in the membership of the firm was immaterial, as there was no evidence that the guarantor was aware of the change.
    That the instrument was a continuing guaranty, but that its continuing quality only referred to the duration of the credit and not to firm succession.
    That a continuing guaranty does not continue in force after a change in the membership of the firm, unless so expressed in the instrument, either directly or by clear implication.
    Authorities on this subject collated by Barrett, J.
    Motion for a new trial by tbe defendant, on exceptions ordered to be beard in tbe first instance at tbe General Term, after a verdict bad been directed at tbe New York Circuit in favor of tbe plaintiffs 'on February 15, 1889.

      David Milliken, Jr., for the plaintiffs.

      Stern & Myers, for tbe defendant.
   Barrett, J.:

This is an action upon a guaranty which reads as follows :

“Messrs. Mildred, Goyenneche & Co., London.
Gentlemen. — Tbe bouse of J. de Rivera & Co., of New York, have informed me of your suggestion that I might guarantee to you an'open credit of (£5,000) in addition to tbe (£5,000) that they already enjoy from you in tbe shape of an open credit. I am so well satisfied with tbe manner in which tbe said bouse is working that I have still left in their bands, not only tbe one hundred and odd • thousand dollars that I left with them when I withdrew from tbe firm, but I have increased the loan to some extent. Still I know .that they must have credits in England to obtain consignments from tbe West Indies and South America, and accordingly I cheerfully hereby guarantee to you the repayment of the before mentioned additional credit of five thousand pounds sterling, my said guaranty to hold good until canceled.
Yours, very truly,
(Signed.) “ J. DE RIVERA,
“ Darmstadter Hof \ Heidelberg.”

The plaintiffs carry on business in London under the firm name of Mildred, Goyenneche & Co. The testimony shows jprima facie that they are the same persons to whom the guaranty was given. At the time they received the guaranty the house of J. de Rivera & Co. was composed of Henry C. de Rivera and Antonio M. Ros. It so continued until the year 1877, when Antonio M. Ros went out of the firm and Salvador Ros came in. Erom that time until 1886 the firm remained unchanged. In 1886 the firm failed, owing the plaintiffs the full £5,000 specified in the guaranty. This was entirely for moneys paid by the plaintiffs under the credit after the change of partners in 1877, and the question is whether the defendant is responsible therefor under this guaranty.

There is no doubt that this is a continuing guaranty. The entire instrument so indicates and the concluding expression, “ my said guaranty to hold good until canceled,” is conclusive. That, however, only refers to the duration of the credit, not to firm succession. The rule in England has always been that a guaranty does not continue in force after a change in the principal debtor’s firm, unless so expressed in the instrument, either directly or by clear implication. The principle is plain. A man may be willing to guaranty A and B? but be unwilling to guaranty A and C. So he may be willing to guaranty a firm composed of A and B, but not a firm composed of A and O. He may guaranty solely on the strength of B’s ability or caution. At all events, his contract is to guaranty a copartnership firm composed of certain persons, and that contract cannot be altered or extended without his consent.

The case of Backhouse v. Hall (6 Best & Smith, 505 ; 118 Com_ Law Rep., 505) is directly in point. Lord Blackburn said it was a hard case, as the plaintiffs did not know of the change of membership for some years, whereas it was known to the guarantor. But the rule was deemed inflexible and the court observed that “ if the parties to a guaranty, given to a firm, mean that it is to continue in force though there be a change of parties, it is very easy to express that. (Strange v. Lee, 3 East, 490; Weston v. Barton, 4 Taunt., 673 ; Simson v. Cooke, 8 Moore, 588; Myers v. Edge, 7 T. R. 254; Dry v. Davy, 10 Ad. & EL, 30; Solvency M. G. Co. v. Froane, 7 H. & N., 17; Pemberton v. Oakes, 4 Rus. 154.) The present guaranty is not withdrawn from the general rule because of the expression “The house of J. de Rivera & Co.” That signified nothing more than the firm or partnership of J. de Rivera & Co. That the guarantor used the words “house” and “firm” as equivalent expressions is evidenced by this language: “I am so well satisfied with the manner in which the said house is working that I have still left in their hands not only the one hundred and odd thousand dollars that L left with them when I withdrew from the firm, but I have increased the loan to some extent.” Thus the house is not treated as an institution or collective body or joint stock company, with fluctuating membership, as in Metcalf v. Bruin (12 East, 400). On the contrary, the writer evidently refers to the particular individuals whom he left i/n the firm and with whose business qualifications, experience, character and judgment he was acquainted. These characteristics it may fairly be presumed he relied on, and for individuals possessing these qualifications he was willing to assume responsibility. The cases where peculiar or added force is given to the expression “ the house of ” so and so, are those of indemnity bonds for personal service, such as Barclay v. Ducas (3 Doug., 321, and see note to Lord Arlington v. Merricke, 3 Wm. Saund. [3d Am. ed.], 414, note 5). That was a case of security to the house for the fidelity of a clerk, and Lord Mansfield held that a continuous and successive indemnity was intended. As was said in the note above cited “ for the fidelity of a clerk in the shop and countA/ng-house * * * a change of partners is said to.make no difference, but the surety still continues.”

This case of Barclay v. Ducas has been repeatedly criticised and doubted. (Dance v. Girdler 1 New R., 42; Weston v. Barton, 4 Taunt., 681.) In the latter case Lord Mansfield himself, in following the general and settled rule, observed: “This, then, being the construction of the instrument from almost all the cases, in truth, we may say from all (for though there is one adverse case of Barclay v. Lucas), the propriety of that decision has leen very much questioned,” etc. And in Strange v. Lee (supra), Lord Ellenborough suggested a possible view upon which Barclay v. Lucas might be entertained. In Barclay v. Lucas the words were different from the present case, the clerk was to be taken into the service of the obligees as a clerk in the shop and counting-house, which might be supposed to mean the same house, however the individual partners might change.”

The wide difference between such a case and that of a guaranty for the house of a principal debtor is aj>parent. In the latter case “ the house ” could not, without an express stipulation to that effect, well be supposed to mean the same house, however the individual partners might change, and the guarantor’s responsibility must have been understood to end when the persons for whom he agreed to be responsible ceased to constitute the house. The fact that the plaintiffs were not notified of the change is immaterial. They may have an action against the firm as it existed before the change, because of failure to notify them of such change or to publish the dissolution. That proceeds upon another principle, namely, the presumption attached to continuous firm dealings without notice. The guarantor, however, is not responsible for the state of facts which might justify a recovery against the original members. There is no. evidence here that he was aware of the change. He seems to have been as much without notice as the plaintiffs themselves. But were it otherwise, we may say, in the language of Lord Blackburn in Backhouse v. Hall (supra) : “ Nothing is stated to show, either, that the defendant was under any obligation to inform the banking-house of that fact or that he took any steps to conceal it.”

The defendant’s obligation is not to guaranty any judgment which, owing to collateral circumstances, the original members of the firm may have become liable, to, but the repayment of moneys actually advanced for them while they are in business together, and together constitute the particular firm. We find no cases in this country where this precise question has been considered. The Bank of Poughkeepsie v. Phelps (97 N. Y., 50) is cited, but in that case the change was in the guarantor's firm. It is, of course, entirely inapplicable. It seems that, since the failure, the plaintiffs have received some ¿82,000 upon account of Rivera & Co.’s indebtedness. The evidence falls short of showing that this sum was paid by the defendant, but even if that had clearly appeared, it would not have affected the question of his liability. This depends wholly upon a proper construction of the contract and the defendant’s notions upon the subject, as was said by Lord Blackburn in Backhouse v. Hall (supra), are of no moment.

The exceptions should, therefore, be sustained and a new trial ordered, with costs to defendant to abide the event.

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

Exceptions sustained and new trial ordered, with costs to defendant to abide the avent.


text:
    EMIL WEILER, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Negligence — starting a train, without warning, and running it into a crowd of people — contributory negligence — right of a passenger to leave a train at the invitation of a conductor — evidence of similar action on a previous occasion — error of judgment by an employee.

    hi an action brought to recover for injuries sustained by the plaintiff through the defendant’s alleged negligence, it appeared that the plaintiff took passage on an elevated train of the defendant at Eighty-ninth street, New York, on the Third Avenue line, to go down town to his work; that there was a block on the road near the Fourteenth street station, and that the train, which was filled with laboring men going to their work, was compelled to halt some twenty-five or thirty-five feet north of that station.
    After a delay of about six or seven minutes the conductor announced to the passengers: “All who are afraid of being late for work get off.” Thereupon a large number, certainly over fifty, got out upon the walk (thirty inches wide) provided by the company for its employees, and proceeded quietly, “ laughing and talking,” towards the station platform, which was near by. Many of these people had almost reached the platform, some of them had even stepped upon the tracks for the purpose of mounting the platform in front, a mode of ascent rendered necessary by the barrier of an iron-rod which ran across the end of the platform, when the train in front of the station, which had caused the block, proceeded.
    Thereupon the engineer of the train which the plaintiff and other passengers had just left, without notice or warning to the crowd of people in front of it, started his engine and moved towards and upon them. Those who were on the track tried to save themselves by getting back upon the walk; others who were upon two short planks, nearest the track, which served to widen the walk at this point, pressed outward on the ordinary space devoted to the walk. Still others pressed backward, thinking to save'themselves from the locomotive. A panic ensued; there were cries and shouts. People pressed against each other on this narrow and unprotected walk, and the result was that eleven men, including the plaintiff, fell to the pavement below.

      Held, that the testimony was sufficient to justify the inference that the plaintiff’s fall resulted immediately and directly from the state of things brought about by the engineer’s negligence in thus starting the train.
    That there was sufficient evidence of the absence of contributory negligence to warrant a verdict for the plaintiff, as the only contributory negligence claimed by the defendant was the bare fact of leaving the car upon the conductor’s implied invitation.

      Viler v. New York Central Railroad Company (59 N. Y., 351); Bucher v. New York Central and Hudson River Railroad Company (98 id., 133) followed.
    It was urged that the judge erred in charging that the mere fact of leaving the train under the circumstances disclosed ‘ ‘ was not in itself evidence of contributory negligence at all.”

      Held, that this was not error, for the reason that the mere leaving of the car at the suggestion of the conductor did not contribute to the accident.
    That if the-plaintiff had fallen directly from the steps of the car or from the walk as he first touched it, another question would have been presented.

      Hunter v. The Cooperstown and S. V. R. R. Co. (112 N. Y. 371) distinguished.
    That it was not error to refuse to charge that the defendant owed the plaintiff no active vigilance to guard him from accident, as this refusal must be considered with reference to what the judge had already charged, namely, that the defendant was only responsible for ordinary care.
    That it was not error to reject evidence, in substance, that similar conduct on a previous occasion had not been attended by disaster, as that offer only amounted to showing that the defendant had been guilty of culpable negligence on one occasion without any resulting accident.
    That the question presented was not one of “ error of judgment ” on the part of the engineer, but as to whether he exercised ordinary care.
    Apbeal from á judgment in favor of plaintiff, rendered after the trial at the New York Circuit, which was entered in the office of the clerk of the city and county of New York on December 18, 1888, and also from an order denying the defendant’s motion to set aside the verdict and for a new trial, entered in the said clerk’s office on December 18, 1888.
    On March 8, 1887, at 6.20 a. m., the plaintiff took passage on an elevated train of the defendant at Eighty-ninth street, on the Third Avenue line, to go down to his work. The present action was brought to recover for injuries sustained arising from the plaintiff’s being pushed from the tracks of the defendant corporation by reason of a panic, occasioned by an engineer on one of the defendant’s trains starting his engine without notice or warning and running it against the crowd of people on the track in front of it.
    WEILER v. MANHATTAN RAILWAY CO. —.-¡- First Department, July Term, 1889.

      Austin G. Fox, for the appellant.

      Nelson Smith, for the respondent.
   Barrett, J.:

There can be no doubt that the defendant is responsible for the negligence of their engineer in starting the train at the point and under the circumstances disclosed by this record. The act evinced a shocking disregard of human life, and it undoubtedly precipitated a number of men into the street below, killing or seriously maiming every one of them. It would only confuse the case to enter into a discussion as to whether the strict relation of carrier and passenger had ceased at the time of this dreadful occurrence. The learned judge at Circuit ruled that it had, and that ruling was certainly as favorable to the defendant as it had any right to expect. It absolved it from that high degree of care required in the running of its trains, and in the maintenance of its tracks and operating machinery. It reduced its responsibility to ordinary care. The jury have found, under appropriate instructions, that the defendant failed to exercise this ordinary care, and was guilty of active negligence. They could not well have found otherwise upon the testimony. It clearly appeared that there was a block near the Fourteenth street station, and that the train in question, filled with laboring men going to their morning’s work, was compelled to halt some twenty-five or thirty-five feet north of the station. After a delay of about six or seven minutes, the conductor announced to the passengers: “ All who are afraid of being late for work, get off.” Thereupon a large number, certainly over fifty, got out upon the walk (thirty inches wide) provided by the company for its employees and proceeded quietly, “ laughing and talking,” towards the station platform, which was near by. Many of these people had almost reached the platform when the occurrence complained of took place. Some of them had even stepped upon the tracks for the purpose of mounting the platform in front. a mode of ascent rendered necessary by the bar of an iron rod ■which ran across the .end of the platform. At this moment the train in front of the station, which immediately caused the block, proceeded. Thereupon the engineer of the train which the plaintiff and other passengers had just left, without the slightest notice or warning to the crowd of people in front of him, started his engine cmcl moved towards and n.^pon them. Those who were on the track tried to save themselves by getting back upon the walk. Others who were upon two short extra planks (nearest the track) which served to widen the walk at this point, pressed outward on the ordinary space devoted to the walk. Still others pressed backward, thinking thus to save themselves from the locomotive. A panic naturally ensued. There were cries and shouts. People pressed against each other on this narrow and unprotected walk; and the result was, that eleven men, including the. plaintiff, fell to the pavement below. Pour were killed and the rest maimed or otherwise seriously injured. The testimony was sufficient to justify the inference that the plaintiff’s fall resulted immediately and directly from the state of things brought about by the engineer’s culpable negligence in thus starting the train. It is true that the plaintiff was unable to tell how he came to fall and that he did not remember being hit by any one. This only goes to show the man’s integrity and that he was unwilling to color the scene or assert a recollection (to his own advantage) which the fall had obliterated. But there was ample evidence from which the jury could properly infer that the crowd was pressed back upon him by the engineer’s act; and that that, with the accompanying panic — not a mere loss of balance— was the real cause of his fall. He does, however, remember the starting of the train, that there were many people in front of and behind him, that they “ screamed and hollered,” that the people on the track moved on the walk and there pressed back a little, and that he had passed the front of the locomotive before it started. He was, therefore, quite near the crowd, and it would have'been impossible for such a large number of people, in a state of extreme excitement, to press back in so small a space without touching or otherwise affecting him. This was corroborated by other witnesses, especially by Lyle, who was evidently standing a little behind the plaintiff and who heard the shouting and saw the people crowded back from the end of the platform. It will not do, upon such facts, to say that the plaintiff gave no evidence tending to prove that his injury resulted from the negligent act of starting the train. The inference that he fell merely because he lost his bala/>ice on a slippery cmd unprotected walk, without regard to the extraneous conditions referred to, is a mere possibility. Indeed, the evidence shows that everything was quiet prior to the starting of the train, and that no difficulty had been experienced by others in reaching the station platform safely. The inference found by the jury is much more reasonable and probable than the strained possibility contended for by the defendants; and the rule is well settled, that where the evidence justifies two inferences the jury may determine between them.

The testimony also showed that the plaintiff was not guilty of contributory negligence. At all events, there was sufficient evidence of its absence to warrant the verdict. The only contributory negligence claimed by the defendants was the bare act of leaving the car upon the conductor’s practical invitation. That invitation was proved both by direct and circumstantial evidence. A witness testified that the conductor stood upon the rear platform of the first car, and there made the announcement — All who are afraid of being late for work, get off.” This was plainly addressed to the passengers in the second car, where the plaintiff was, as well as to the passengers in the first. Lyle also testified that the conductor said something to the passengers in the second ear and that they at once got up in a body and went out. The plaintiff, though speaking English imperfectly, saw a man “ with a cap on ” and a “ blue suit ” call out something, and after that everybody got up — he as well as the rest — and went out. This man with the cap on and the blue suit was then standing at the gate, which was open for the exit of all. The case on this head is thus brought within the principle of Filer v. New York Central Railroad Company (59 N. Y., 351), and Bucher v. New York Central and Hudson River Railroad Company (98 id., 133). In the Filer case the court said (Grover, J.): The employees upon a train, including brakemen, are in the line of their duty in assisting passengers in getting on and off the train. * * * Passengers rightly assume that these persons are familiar with all the movements of the train, and know whether they can, under the particular circumstances, get on or off, or move upon the train with safety. When the conductor or a brakeman directs a passenger to get off th# train, although in motion, such passenger will naturally assume that he knows that it is entirely safe or he would not give the direction.” In the Bucher case the court said (Miller, J.): “It was for the jury to say whether any such directions were given by the conductor as authorized the plaintiff to get off the cars at that time ” —• while they were in motion — “ or made him chargeable with contributory negligence for so doing. * * * If the plaintiff had reason to believe, from what passed between him and the conductor, and from the surrounding circumstances, that it was safe and prudent for him to leave as he did, then he was justified within the authorities last cited •— Salter v. Utica and Black River Railroad Company (88 N. Y., 42), and the Filer Case (19 id., 52), *' * * whether the plaintiff was asked by the conductor if he wished to get off or whether the conductor told him to get off is not very important, as either remark, under the circumstances, might be regarded as a notification to him to leave the cars.” (McIntyre v. N. Y. C. R. R. Co., 37 N. Y., 287; Corcoran v. N. Y. El. R. R., 19 Hun, 368 ; Keating v. N. Y. C. and H. R. R. R. Co., 49 N. Y., 673; Niven v. City of Rochester, 76 id., 619.)

It is urged, however, that the learned judge erred in charging that the mere fact of leaving the train, under the circumstances disclosed, “was not in itself evidence of contributory negligence at all.” This was not error, for the reason that the mere leaving of the car at the suggestion of the conductor did not contribute to the accident. If the plaintiff had fallen directly from the steps of the car or from the walk as he first touched it, the question presented by this exception would have been up for discussion. We have not overlooked the fact that the Court of Appeals, in the late ease of Hunter v. Cooperstown and S. Y. R. R. Company (112 N. Y., 371), held that an attempt to board a train, moving at the rate of four to six miles an hour, was negligence, as matter of law, although the person making the attempt was directed by the conductor, if he was going on the train, to “ jump on.” There, however, as in the other cases cited (Filer and Bucher), the accident happened in the very act of getting on or off the train. Here the plaintiff and all the other passengers got off with entire safety. They proceeded, without difficulty and seemingly without the slightest danger, towards the station platform. They were not only practically invited to d^ this, but they were substantially compelled to do so, if they desired to reach their destination at any given or definite time. For aught that appeared, when they were told that they might leave the cars, they would have remained just where they were for hours. The utmost that can be fairly claimed by the defendants, under these circumstances, is that the plaintiff and the other passengers, in alighting, took the risks incident to the locality. They did not assume any other or greater risks, certainly not the risk of the defendant’s negligence. The act of alighting had, therefore, no just relation to the accident and was in nowise a contribution thereto. The question was, whether the plaintiff was injured by the defendant’s negligence while, but for that negligence, safely upon the walk; and whether the natural and ordinary risk incident to his being upon the walk contributed “ at all ” to the accident. The latter question was fully and fairly submitted to the jury. Indeed, the defendants did not except to the part of the charge under consideration until they had induced the learned judge specifieially to charge the two following propositions:

“ That the plaintiff took the entire risk from injury from every peril or danger to which he knew, or, in the exercise of ordinary care, he ought to have known, he was exposing himself by leaving a place of safety and going for his own convenience, with other persons, on the plank-walk.” And “.that if the jury find as a fact, that, in placing himself upon the planks with a number of other persons, the plaintiff omitted to use ordinary ca/re, and that such want of ordinary care on his part contributed directly, even vn the slightest degree, to produce the accident to himself, then the defendant is entitled to a verdict, even if the engineer in starting the train was guilty of gross or criminal negligence.”

The next question is raised by the following extract from the charge:

“ It is contended, on the part of the defendant, that the proximate cause of this in jury was not the starting of the train by the engineer without warning or without a whistle being blown, but that it was caused by some passenger who had been upon the train, either in attempting to get upon it again or after he was upon the train, and was lying prone on the platform striking some of the other passengers, and three passengers were thereby precipitated into the street. There is nothing here to show that the plai/ntiff was one of those three passengers, nor is there a/nythvng to show that he was i/n a/nyway affected by that act.” The defendant excepted to the part italicised. The charge was correct. The uncontradicted testimony of all the defendant’s witnesses placed the passenger referred to (when he is said to have “ kicked three people off the walk ”) at the rear platform of the first car. The uncontradicted testimony also placed the plaintiff, at the same moment, far in advance of this point. The charge was, therefore, as, indeed, it was throughout, quite as favorable to the defendant as the facts warranted.

Nor was it error to refuse to charge that the defendant owed the plaintiff no active vigilance to guard him from accident. This refusal must b e considered with reference to what the learned judge had already charged, namely, that the defendant was only responsible for ordinary care. It certainly owed the plaintiff whatever active vigilance is implied in ordinary care. To that extent he was under their protection. The defendant evidently confuses the rule as to non-liability for passive negligence, a default in not doing something, where the injured party is a mere licensee, a/nd the commission of some affirmative aet of negligence. (Remer v. L. I. R. R. Co., 48 Hun, 352; Larmore v. Crown Point I. Co., 101 N. Y., 391.) One has no right to carelessly injure even a mere licensee, and the “active vigilance” which is not due him has reference to some affirmative act of care. (See opinion, Earl, J., Nicholson v. Erie Railway Co., 41 N. Y., 533.)

It was not error to reject evidence, in substance, that similar conduct on a previous occasion had not been attended by disaster. That was what the offer amounted to, namely, that culpable negligence had passed once with impunity.

There was abundant evidence of the permanency of the injury, and also of the permanency of the pain and suffering. The testimony was clear and conclusive that the plaintiff had an incurable disease (resulting from the accident) called “ Potts’ disease of the spine.” The physicians testified that it would last as long as he lived, and the plaintiff himself testified that from the time of the accident down to the day of trial (a period of nineteen months) he had never been'free from pain by day or by night. This testimony clearly justified the refusal to charge “ that there was no evidence sufficient to warrant the jury in awarding damages for any future pain.” Such pain was throughout part and parcel of the incurable disease — an inseparable incident thereto — and future, even lifelong pain seems to be a reasonable sequitur from such facts.

The point that the learned judge erred in charging the jury as follows: “You would also be entitled to take into consideration and to award him a reasonable sum for the certainty of the duration and the continuation of the effects of this injury, if, upon the evidence, you find that the injuries are likely with reasonable certainty to be perma/nent,” might well have been omitted. What the learned judge meant, and what the jury must have understood him to mean, is apparent. The whole charge indicates that what he really dwelt upon was “reasonable certainty” and the word “'likely” was one of those petty slips of the tongue which is apt to creep into almost all colloquial speech. What precedes also renders the meaning clear. It is “ the certainty of the duration ” for which a reasonable sum may be awarded. That it was so understood by the defendant’s counsel is evidenced by the fact that the attention of the court was not specially called by the exception to the inadvertent use of the word “ likely,” and the present cavil is now made for the first time This exception justifies the avowal made upon the argument, that the case was tried closely and with a view to exceptions. Lastly, it would have been absurd to speak to the jury of a possible “ error of judgment ” on the part of the engineer. The question, and the sole question, was whether he exercised ordinary care. Here he exercised no judgment at all. His judgment or want of judgment had nothing to do with the result. Even if he exercised his best judgment, and that proved to be no judgment at all, but, on the contrary, wanton negligence, the defendants would certainly be liable. There are no other exceptions calling for special consideration.

The verdict was just, the trial free from substantial error, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

Yan Brunt, P. J., and Daniels, L, concurred.

Judgment and order affirmed, with costs.


author: Cullen, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN R. DUNN, Appellant.

      Indictment for larceny — it is not required to be drawn under a special class as defined in section 528 of the Penal Gode — it is sufficient if the statement fairly apprises the defendant of the cha/i'ge — evidence of corroboration' — parties accessory befeyre the act, defined — amendment of the corporate title of a bank.

    John R. Dunn was indicted, with one Richard S. Scott, for grand larceny in the first degree for stealing 150 gold certificates of the United States, of the value of $1,000 each, the property of the Bank of the Manhattan Company. The evidence given on the trial showed that the theft was committed by Scott, who at the time was paying teller of the bank; and evidence was given tending to show that the defendant Dunn counseled, induced and procured the theft to be committed.
    Scott, who was used as a witness for the people, testified, in substance, that after having been guilty of peculations from the bank to the extent of $10,000, which he was unable to restore, he applied to Dunn, a practicing lawyer and a cousin of his wife, for advice, and that Dunn advised him to take as large a sum from the bank as he could lay hold of and then abscond to Canada, leaving the funds, thus to be stolen, in the hands of some confidant in this State; that, in pursuance of such advice, he took from the bank the $150,000, gave the money to Dunn to keep for him and absconded to Canada; that Dunn, from time to time, transmitted small sums from the stolen fund to him (Scott). Scott subsequently went to England, and while he was there negotiations were opened between Scott and the bank for the return of the stolen property; Dunn, being called upon for the stolen funds, with which to effect a compromise, failed to produce them, claiming that he had lost them in speculation.
    The people sought to corroborate Scott by his wife and her brother and sister, who-testified to conversations with, and admissions on the part of, Dunn after tjie theft had been committed and while negotiations were pending for the restoration of the stolen property.
    Upon an appeal from a judgment convicting the defendant, it was contended that there was a variance between the proof and the indictment, in that the charge in the indictment was that the defendants “ did take, steal and carry away ” the property therein mentioned, instead of charging the offense created by the second subdivision of section 528 of the Penal Code; that is, as an appropriation to-his own use by a clerk having property in his possession.

      Held, that it was not necessary that an indictment should be drawn specifically, under one or the other of the special classes of larceny, as defined by the Code.
    That it was sufficient that the indictment charged the crime, and then gave a plain and concise statement of the facts, and that if that statement was such as to-fairly apprise the defendant of the charge made against him, it was sufficient.

      People v. Dumar (106 N. Y., 502) distinguished.

      That if the word “ steal ” was to be considered in its technical meaning, then its use was proper because the act here committed was larceny at common law.
    That if the words used were to be considered in their ordinary interpretation in common language, then the terms employed were equally appropriate, and that by either rule they clearly and fully informed the defendant of the charge which was made against him.
    That, under the system of pleading instituted by the Code of Criminal Procedure, it was perfectly proper to charge the defendant with either having stolen the property or as a clerk having appropriated it to his own user
    It was claimed that there was no sufficient corroboration of Scott, because the witnesses, the wife of Scott, and her brother and sister, were accomplices or accessories after the fact, and that the court erred in charging the jury to the contrary.

      Meld, that the rule, as laid down in the charge of the court in this respect, was correct; that, to constitute an accessory, the person must help the principal to elude or evade capture, and as none of the witnesses referred to wore cognizant of the crime until long after its commission, and until the defendant was secure from capture by his departure to a foreign country, and as no one, except his wife, rendered any aid or assistance to him, except so far as they intervened or assisted in the compromise with the bank, that there was not shown to have been any participation by any of these parties which rendered them accessories.
    Nor did the fact that they received part of the stolen property, knowing it to be stolen, if it were assumed that that fact was established.
    Mrs. Scott testified that the defendant told her: “ Lizzie, if it hadn't been for me he wouldn’t have taken as much as he did, he would have gone with a great deal less; and if he had taken my advice he would have taken money enough to cripple the bank.”

      Meld, that the corroboration of Scott as to the larceny was sufficient, as this statement went to the question of larceny and not to the mere receiving of the stolen property.
    That the statement in the indictment, of the property stolen, was sufficient within the authorities, and that the evidence was sufficient to show that the certificates .stolen were circulated as money at their nominal value.
    That an amendment in the indictment of the corporate title of the bank was authorized by sections 381 to 393 of the Code of Criminal Procedure, as the amendment did not affect the substance of the charge against the defendant, and as the owner of the property charged in the indictment and the owner as proved on the trial were the same.

      People v. Herman (45 Hun, 175) followed.
    Appeal by John E. Dunn from a judgment rendered at tbe New York Court of Oyer and Terminer, which, was entered after an indictment and conviction of the said John E. Dunn, on June 19, 1888, of grand larceny in the first degree.

      Silas M. Stilwell, for the appellant.

      William Travers Jerome, for the respondent.
   Cullen, J.:

The appellant was indicted with one Richard S. Scott for grand larceny in the first degree, for stealing 150 gold certificates of the United States, of the value of one thousand dollars each, the property of the Bank of the Manhattan Company. The evidence given upon the trial showed that the theft was committed by Scott, who, at the time, was paying teller of the bank; and evidence was given tending to show that the defendant Dunn counseled, induced and procured the theft to be committed. Scott was used as a witness for the people. He testified, in substance, that having committed peculations from the bank to the extent of $10,000, which he was unable to restore, he applied to Dunn, a practicing lawyer and a cousin of his wife, for advice. That Dunn advised him to take as large a sum from the bank as he could lay hold of, and then abscond to Canada, leaving, however, the funds to be stolen in the hands of some confidant in this State; that under the treaties Scott could not be extradited from Canada for simple theft; that by leaving the stolen property in this. State he would avoid the penalties of the Canadian law, as to bringing stolen property within the dominion; with the funds so stolen a compromise could subsequently be effected with the bank; that in pursuance of such advice he took from the bank the $150,000, gave the money to Dunn to keep for him, and absconded to Canada. Scott subsequently went from Canada to England. Dunn, from time to time, transmitted small sums from the stolen funds to Scott. While in England negotiations were opened between Scott and the bank for the return ■of the stolen property. When Dunn was called upon for the stolen funds with which to effect the compromise he failed to produce them, claiming that he had lost them in speculation. The theft from the bank was also proved by its cashier. The people sought to corroborate Scott by his wife and her brother and sister, who testified to conversations with and admissions on the part of Dunn, after the theft had been committed, and when negotiations were pending for the restoration of the stolen property. The defendant offered no evidence. A motion was made at the close of the testimony that the jury be instructed to acquit the defendant. This motion was denied. The defendant was convicted, and sentenced upon conviction.

The questions discussed on this appeal arise upon the denial of the motion to direct the jury to acquit. The first contention is that there was a variance between the proof and the indictment. The charge in the indictment was that the defendants “ did take, steal and carry away ” the property therein mentioned. It is not disputed that the offense committed would have been larceny before the Penal Code, because the property stolen had been in the possession of the bank before it was abstracted by Scott. It was also made larceny by the Penal Code, but it is claimed that the offense should have been charged under the second subdivision of section 528 of the Penal Code; that is, as an appropriation to his own use by a clerk having property in his possession. This claim is made on the authority of The People v. Dumar (106 N. Y., 502); there the defendant was charged with having “ taken, stolen and carried away ” certain property. The evidence showed that he obtained the property by false pretenses. It was held that the indictment did not state the offense which was proved against the defendant, and for the variance the conviction was reversed. While the Code makes embezzlement and obtaining goods under false pretenses larceny, it was held that under the Code of Criminal Procedure (§§ 254-275), the indictment must not only charge the crime, but state the act constituting the crime; and that the act stated as constituting a crime in the indictment was different from the act proved, and hence the variance. In the opinion delivered in that case the court, indeed, do lay down the doctrine that larceny can now be committed in four separate ways, and that it was the intention of the legislature to abolish those refinements and distinctions which had so often perplexed the court as to when an offense is larceny and when embezzlement. But there is nothing in the opinion which gives ground for the claim that when the legislature abolished the old distinctions between larceny, false pretenses and embezzlement they intended to create a new classification of offenses and raise the same difficulties as to determining between the various offenses as existed under the old practice.

It is not necessary that an indictment should be drawn under one or the other of the special classes of larceny as defined by the Code. If so, there would be no improvement in the codification of this branch of the law; for instead of having three crimes, as formerly, to perplex the administration of justice, there would be now four. It is sufficient that the indictment charges the crime, and then gives a plain and concise statement of the act. It is sufficient if that statement be such as to fairly apprise the defendant of the charge made against him. All that was decided in 'the People v. Dumar was that the act stated differed from the one proved. No such criticism could justly be made on the 'statement here.

By the Code of Criminal Procedure (§ 282), words are to be construed in their usual acceptation, in common language, except such as are defined by law, and those are to be construed according to their legal meaning. If the word “ steal ” is to be considered in its technical meaning, then its use was proper, because the act here committed was larceny at common law. If the words used are to be considered in their ordinary interpretation, in common language, then the terms employed were equally appropriate. By either rule, they fairly and fully informed the defendant of the charge which was made against him. We think that in a case similar to this, and under the system of pleading instituted by the Code, it is perfectly proper to charge the defendant with either having stolen the property or, as a clerk, having appropriated it to his own use.

It is next claimed that there was no sufficient corroboration of Scott, because the witnesses, Mrs. Scott, Mrs. Searles and William Cross, were accomplices, or accessories after the fact, and that the court erred in charging the jury to the contrary. We think the ruling and charge of the court in this respect was correct. Assuming that an accessory after the fact is an accomplice within the meaning of the Code, it is clear that none of these witnesses were accessories.

Mr. Bishop, in his work on Criminal Law (§ 695) enunciates the rule that “ The true test for determining whether one is accessory after the fact is to consider whether what he did was done by way of personal help to his principal with a view of enabling the principal to elude punishment.” So, to furnish one with a horse to escape, or to conceal or rescue the principal, renders one an accessory, but not so the faffing to make known the felony; forbearance to arrest, or charitably supplying the prisoner with food, or agreeing not to prosecute, or preventing the attendance of witnesses. To the same effect is Wharton’s Criminal Law (§241.) Under this rule, plainly none of these witnesses were accessories. In fact, the rule itself is stated too broadly by Mr. Bishop, as is shown by the cases cited by him, where it has been ruled that the prisoners were not accessories. To constitute an accessory, it is not sufficient to assist the prisoner to elude punishment, because failing to prosecute or preventing the attendance of witnessess would produce that result. But to constitute the offense one must help the principal to elude or evade capture. None of the witnesses referred to were cognizant' of the crime till long after its commission, and till the defendant was secure from capture by his escape to a foreign country. None, except his wife, rendered any aid or assistance to him, except so far as they intervened or assisted in negotiating Tor a compromise with the bank. The wife visited Scott in London, and resided there with him. In that respect she did nothing to render her an accessory. Her husband was beyond the jurisdiction or reach of our tribunals; and, further, the relation of wife to husband at common law exempted Mrs. Scott from liability as an accessory. (Wharton § 243.) She also assisted in the negotiations for the settlement; but under the authority cited no participation by any of those parties in that negotiation rendered the parties accessories. Nor would the fact that they received part of the stolen property, knowing it to be stolen, if we assume that fact to exist, have such effect. (Bishop’s Crim. Law, §§ 692, 695-699.) There was, therefore, nothing in the case to support the defendant’s claim that these witnesses were accomplices.

The corroboration of Scott as to the larceny was sufficient. Mrs. Scott testified that the defendant told her, “ Lizzie, if it hadn’t been for me he wouldn’t have taken as much as he did, he would have gone off with a great deal less; and if he had taken my advice he would have taken money enough to cripple the bank.” This goes right to the point of the larceny, and not to the mere receipt of the stolen goods, which was abundantly proved by the testimony of the witnesses Searles and Gross, and the letters of the defendant.

The statement in the indictment of the property stolen was sufficient within the authorities, People v. Loop (3 Parker Cr., 559); People v. Jackson (8 Barb., 637), and the evidence is sufficient to show that the certificates stolen were circulated as money at their nominal value.

The amendment of the corporate title of the bank was authorized by the Code of Criminal Procedure (§§ 281-293). This amendment did not affect the substance of the charge against the defendant. The owner of the property charged in the indictment and the owner as proved on the trial were the same. The amendment only corrected a misnomer, and, therefore, falls far within the decision of this court in The People v. Herman (45 Hun, 175).

Complaint is made of the following part of the charge of the court: “ The prosecution has, in the first place, given you the evidence of Scott. He says that Dunn was concerned in the commission of the crime and counseled it; and more, that after he, Scott, had taken the gold certificates, Dunn received them knowingly, and acted as their guilty custodian. Of course, if that be true, there can be no doubt of Dunn’s criminal responsibility.” We find no exception to this part of the charge, and if there were such, it would be untenable. When the learned judge said If that be true, there can be no doubt of Dunn’s criminal responsibility,” he does not refer alone to Dunn’s receiving the stolen certificates, but to Scott’s whole statement that Dunn was concerned in the commission of the crime, and counseled it. In the light of the whole charge, it is not possible that the jury could have misconceived this statement.

We have thus examined the various rulings on this trial of which the defendant complains, and find that no error was committed. The evidence was ample to justify the defendant’s conviction, and the judgment appealed from should be reaffirmed.

Van Brunt, P. J., concurred.


text:
    JOHN C. MAHR, HENRY J. MAHR, JULIUS D. MAHR, Comprising the Firm of JOHN C. MAHR & SONS, Respondents, v. CHARLES H. BARTLETT, THE NORWICH UNION FIRE INSURANCE SOCIETY, Appellants, and SAMUEL G. KELLY.

      Pledge of a policy of insurance — an action in equity lies by the pledgee simply to have his rights therein determined — proper parties to the action- — right of the insurance company to protection against other parties —pledge not construed to be an assignment.

    In an action brought to have the plaintiffs declared entitled to receive certain moneys due under a policy of "fire insurance, and to restrain the insurance company from paying such moneys to the owner of the insured property, it appeared that the plaintiffs claimed to hold the policy of insurance issued by the defendant, the Norwich Fire Insurance Company, in favor of the defendant Bartlett, on the latter’s stock in trade, as security for a loan made to Bartlett. A loss having occurred Bartlett denied the pledge of the policy to the plaintiffs.
    Bartlett answered in the action denying the pledge, the company answered denying knowledge of the pledge, and alleged that one Kelly of Iowa was the owner by an assignment from Bartlett; also, that the assignment to the plaintiffs violated one of the conditions of the policy. Kelly was made a party defendant on the company’s motion, and, being a non-resident, was served by publication but never appeared.
    Upon the trial the plaintiffs established their claim against Bartlett, and the pledge of the policy, but no proof was given as to the extent of the loss. The court rendered judgment in favor of the plaintiffs for the relief prayed for in the complaint.
    On an appeal by the insurance company from this judgment:

      Held, that it was settled by authority that to an action on a pledged policy the pledgor, as well as the pledgee, was a necessary party.
    That there was no objection to an action being brought in equity, having for its purpose merely to establish the right of the plaintiffs to recover any amount due on a chose in action, leaving' the liability on the chose in action to be determined in a subsequent suit at law.
    That, in view of this fact, it was not necessary to prove on the trial the extent of the loss or the presentation of proofs of loss.
    The principal'Objection urged by the insurance company against the judgment was that the court did not acquire jurisdiction of the defendant Kelly.

      Held, that as Kelly did not appeal from the judgment, the company had no standing to complain of it in this respect, except so far as it might be entitled to protection under the judgment from any claim on his part.
    That, as the policy was not negotiable and Kelly could not obtain any greater rights to the policy than his assignor Bartlett, and as the evidence clearly establisted the pledge of tlie policy to the plaintiffs, long anterior to the assignment to Kelly, which latter was not until four days after the commencement of this suit, the rights of the plaintiffs were paramount to those of Kelly, and that it must be assumed that that would be so held in Iowa.
    ■It was claimed by the company that the policy became void by the assignment to the plaintiffs.

      Held, that as the assignment was merely a pledge to secure the payment of a debt it did not avoid the policy.

      Griffey v. New York Central Insurance Company (100 N. Y., 417) followed.
    Appeal by the Norwich Union Fire Insurance Society from a judgment, rendered in an action tried at a Special Term held in the county of New York, which was entered in the office of the clerk of the county of New York on December 22, 1881.

      George H. Foster, for the appellants.

      David Welch, for the respondents.
   Cullen, J.:

This is an appeal from a judgment in favor of the plaintiffs, entered ujaon a decision of the Special Term. The action is a peculiar one, and we have been somewhat at a loss to determine in what character it is to be considered. The plaintiffs claimed to hold a policy of fire insurance, issued by the defendant company in favor of the defendant Bartlett, on the latter’s stock as security for a loan made to Bartlett. A loss occurred. Bartlett denied the pledge of the policy to the plaintiffs. This action was thereupon brought and the relief sought was not to recover the amount of the loss, but to have plaintiffs declared entitled to receive the moneys due on the policy and to restrain the defendants from paying such moneys to Bartlett, or to anyone else than the plaintiffs. Bartlett answered, denying the pledge. The company answered, denying knowledge of the pledge and alleged that one Kelly, of Iowa, was the owner by a paramount assignment from Bartlett. It further answered, that the assignment to the plaintiffs violated one of the conditions of the policy, and for this reason asked, as a counter-claim, that the policy be adjudged void. On the company’s motion, Kelly was made a party defendant. Being a non-resident he was served by publication, but he never appeared in the action. On the trial the plaintiffs established their claim against Bartlett and the pledge of the policy, but no proof was given as.to the extent of the loss nor of its adjustment. The court gave the relief prayed for, and from the judgment the defendant insurance company alone has appealed. It seems settled by authority that to an action on a pledged policy the pledgor as well as the pledgee is a necessary party. (Griffey v. N. Y. Cent. Ins. Co., 10,0 N. Y., 417; Simson v. Satterlee, 64 id., 657; Bard v. Poole, 12 id., 495.) The cases last-mentioned were foreclosures of pledged mortgages. In Bard v. Poole the reason of the rule is stated to be that the general owner might be able to show the debt had been paid. The plaintiffs, as pledgees, might have maintained a suit at law on the policy, joining the pledgor as plaintiff, or if the latter refused to become plaintiff, making him a party defendant. As Bartlett denied the pledge, there would have been two entirely independent issues to be tried, the pledge by Bartlett and the liability of the company. A pledgor has always the right to go into equity to foreclose his pledge. The pledge in this case being a chose in action, it should be collected, not sold to satisfy the debt. (Wheeler v. Newbould, 16 N. Y., 392.)

We, therefore, see no objection to an action in equity having its purpose merely to establish the right of the plaintiffs to recover any amount due on the chose in an action, leaving the liability on the chose in an action to be determined in a subsequent suit at law. The defendant insurance company raised no objection to the equitable jurisdiction, but, on the contrary, sought affirmative relief in its own behalf in that jurisdiction. We shall, therefore, treat the action as merely determining the right to the benefits of the policy, and not as adjudging any liability of the defendant company, except so far as that defendant, by its own action in asking affirmative relief, put such liability in issue. In this view of the case, it was not necessary to prove, upon the trial, the extent of the loss or the presentation of proofs of loss. The principal objection against the judgment below, urged by the defendant company, is that the court did not acquire jurisdiction of the defendant Kelly, and that, therefore, the judgment, so far as fit restrains Kelly from collecting the insurance moneys or suing the company therefor, is void. But Kelly does not appeal from the judgment and the company have no standing to complain of it in this respect, except so far as it may be entitled by a valid judgment to be protected from any claim on Kelly’s part. Had the plaintiffs brought a suit at law on the policy, it would not have been a defense to show that Kelly claimed to own the policy. It would have been necessary for the defendant to go further and show that Kelly did own it or at least that the- plaintiff did not. In a proper case the defendant might have an interpleader. But if one of the claimants was beyond the jurisdiction of the court, the defendant would labor under the same embarrassment as in this case, nor do we see how it would be relieved from it. It would have to show not only the foreign claim, but its validity. Any other rule would defeat the enforcement of liability in our courts, where there was a foreign claimant. The policy was not negotiable and Kelly could not obtain any greater rights to the policy than his assignor, Bartlett. The evidence clearly established the pledge of the policy to the plaintiffs, long anterior to the assignment to Kelly, which latter was not until four days after the commencement of this suit. The rights of the plaintiffs are, therefore, paramount to those of Kelly, and we must assume that it will so be held in Iowa.

It is next claimed that the policy became void by the assignment to the plaintiffs. That assignment was merely as a pledge to secure the payment of a debt. Griffey v. New York Central Insurance Company {supra), is conclusive to the effect that such an assignment does not avoid the policy.

Lastly, it is contended that the decree goes beyond the pleadings in awarding absolute judgment against the company on the policy. "We do not so construe the decree. It adjudges that the company pay the plaintiffs such moneys as shall be found due and payable under and by virtue of the policy.” It does not determine what moneys or that any moneys are due on the policy. It simply adjudges plaintiffs’ rights to the policy at whatever value it may be-

We think the case properly determined, and that the judgment appealed from should be affirmed, with costs.

Van Brunt, B. L, concurred.

Judgment affirmed, with costs.