author: Mayham, P. J.: HeReioK, J.: PutNám, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. CHARLES F. PECK and ELBERT RODGERS, Respondents.

      Hemoval of papers from a public, office — commissioner of statistics of labor — statistics deposited in his office are public papers — removal and destruction of.

    On demurrer to an indictment charging the -willful and unlawful removal and destruction, of answers, in writing, of persons connected with industrial establishments, to circulars of inquiry issued by the commissioner of statistics of labor of this State, constituting statistics required to be collected by him, under the statutes prescribing his duties (chapter 356 of Laws of 1883, amended' by chapter 205 of Laws of 1886), and received by him and deposited in the Bureau of Labor Statistics:

      Held, that such statistics were public papers and documents deposited in a public office, and with a public officer by authority of law, and hence that the facts, stated in the indictment constituted a crime under section 94 of the Penal Code..
    (Putnam, J., dissenting.)
    Appeal by the People of the State of New York from a judgment of the Court of Sessions of the County of Albany, entered in: the office of the clerk of that county on the 14th day of November,, 1892, sustaining the demurrer of the defendants to the indictment against them.

      James W. Eaton, for the appellant.

      Edward J. Meegan, for the respondents.
   Mayham, P. J.:

The respondents were jointly indicted for the alleged crime of removing and destroying public documents.

The full text of the indictment is as follows:

“ The grand jury of the county of Albany accuse Charles F. Peck and Elbert Rodgers of the crime of removing and destroying public 'documents committed as follows: The said Charles F. Peck, heretofore and at the time of the commission of the acts hereafter stated, was and now is the Commissioner of Statistics of Labor of the State of New York, a public officer and a public office duly created by an act of the legislature of the State of New York, and as such Commissioner it became and was his duty to collect, assort, systematize and present, in annual reports to the legislature, statistical details relating to all departments of labor in this State, and especially in relation to the commercial, industrial, social and sanitary conditions of workingmen and to the productive industries of this State; and that at all the times hereafter referred to it was the legal duty of every person, owner, operator, manager and lessee of every mine, factory, work-shop, warehouse, elevator, foundry, machine-shop and other manufacturing establishment in the State, and of every agent and employee of such owner, operator, manager and lessee of every such mine, factory, work-shop, warehouse, elevator, foundry, machine-.•shop and other manufacturing establishment to furnish such com- ■ missioner, when requested bj him, statistical and other information .in their possession or under their control relative to the lawful v duties of such Commissioner as above set forth, and to truthfully -answer questions concerning such lawful duties of the said Commis-isioner sent to them by said commissioner by circular.
“That heretofore and in the year 1891, between the first day of -January and the thirty-first day of December, in said year,, and the year 1892, between the first day of January and the first day of September, in said year, the said defendant, Charles F. Peck, as Commissioner of Statistics of Labor of the State of New York, in pursuance of the duties devolved on him by law to collect, assort and systematize statistical details relating to all departments of labor in this State, and especially in relation to the commercial, industrial, social and sanitary condition of workingmen, and to the jiroductive industries of the State, sent circulars to the owners, operators, managers and lessees of the mines, factories, work-shops, warehouses, elevators, foundries, machine-shops, and other manufacturing establishments of this State, which said circulars did then and there ■contain questions asking for statistical information relating to the lawful duties of such Commissióner, and relating to the details of all ■departments of labor in this State, and especially in relation to the ■commercial, industrial, social and sanitary condition of workingmen in this State, and to the productive industries of this State; and •did, at the times aforesaid, receive answers to the questions contained in said circulars from the owners, operators, managers •and lessees of the mines, factories, work-shops, warehouses, elevators, foundries, machine-shops, and other manufacturing establishments «of this State, which said answers were contained in and written on the circulars sc sent out by the said Charles F. Peck, as Commissioner of Statistics of Labor of the State of New York; and which said answers, then and there being, were and are the statistical details relating to all departments of labor in the State of New York, and especially in relation to the commercial, industrial, social -and sanitary condition of workingmen of the State of New York, •and to the productive industries of the State of New York; and •which said circulars, containing the questions aforesaid, and the .answers aforesaid, were sent to and received by the said defendant, Charles F. Peck, as such Commissioner of Statistics of Labor of the State of New York, by due authority of law, at his office in the New Capitol, in the city of Albany, and known as the Bureau of Labor Statistics of the State of New York, he, the said Charles F. Peck, being then and there a public officer of the State of New York, and received and filed and deposited by said Charles F. Peck in the office of the Bureau of Labor Statistics of the State of New York, at the headquarters thereof in the New Capitol, in the city of Albany, the said Bureau of Labor Statistics being, and was then and there, a public office of the State of New York, and being then and there received, filed and deposited by due authority of law, and being, and were then and there, public records, books, papers and documents of the State of New York. '
“And the grand jury further say that the said Charles F. Peck and Elbert Rodgers, on the 11th day of September, 1892, at the city of Albany, in this county, feloniously, willfully and unlawfully, did remove, mutilate, conceal and destroy the public records, books, papers and documents, so as aforesaid filed and deposited by due authority of law in the office of the Bureau of Labor Statistics of the State of New York, in the new capitol, at the city of Albany, the same being then and there a public office of the State of New York, and the same being then and there filed and deposited by due authority of law with the Commissioner of Statistics of Labor of the State of New York, at his office in the New Capitol, in the city of Albany, he being then and there a public officer of the State of New; York, and which said public records, books, papers and documents aforesaid did then and there relate to, and were the official statistical details relating to all departments of labor in the State of New York, and especially in relation to the commercial, industrial, social and sanitary condition of the workingmen of the State of New York, and to the productive industries of the State of New York for the years 1890 and 1891, and were and are the official and public records, books, papers and documents of the Bureau of Labor Statistics of the State of New York, and the official and public records, books, papers and documents of the People of the State of .New York.
“And the grand jury aforesaid, further say that the public records, books, papers and documents aforesaid have been and are withheld ■by the said Charles F. Peck and Elbert Rodgers, and have been and were removed and mutilated by the said Charles F. Peck and Elbert Rodgers, and have been destroyed by the said Charles F. Peck and Elbert Rodgers so that the grand jury are unable to give a better description of them than as above set forth, and so that the grand jury are unable to set them out in detail, and are unable to set them out in words and figures.
“And so the grand jury aforesaid charge and accuse the said Charles F. Peck and the said Elbert Rodgers with feloniously, willfully and unlawfully removing, mutilating, concealing and destroying public records, books, papers and documents, contrary to the statute in such case made and provided.
“JAMES W. EATON,
“District Attorney of the Cotmhy of Albany.”

To this indictment each of the defendants demurred, as follows:

“ The defendant, Charles F. Peck, demurs to the indictment presented herein against him and assigns as the grounds thereof, which appear on the face thereof, to wit:
“First. That said indictment does not conform substantially to section 276 of the Code of Criminal Procedure.
“Second. That more than one crime is charged in the indictment within the meaning of section 278 of the Code of Criminal Procedure.
Third. That the facts stated in said indictment do not constitute a crime.
“Fourth. That the said indictment contains matters, which, if true, constitute a legal bar to the prosecution.
“CHARLES F. PECK,
“Defendant.”

The principal point raised by these demurrers and urged on this appeal is as to whether or not the facts charged and alleged in the indictment constitute a crime, under section 94 of the Penal Code. That section provides as follows:

“A person who willfully and unlawfully removes, mutilates, destroys, conceals or obliterates a record, map, book, paper, document or other thing filed or deposited in a public office or with any public officer by authority of law is punishable by imprisonment for not more than five years or by a fine of not more than five hundred dollars or by both.”

The indictment in this case shows that Charles P. Peck was a public officer charged with the duty of gathering statistics of a public nature and for a public purpose; that such statistical information was to be gathered in part on his application from individuals and corporations on his request made to such individuals and corporations who were by the law charged with the duty of answering truly such applications and requests of delivering the answers so made to him as such public officer; that in pursuance of such duty, as such officer, he did make application and send circulars to the owners, operators, managers and lessees of the persons and corporations from whom he desired and whose duty it was to furnish such statistical information, which circulars contained questions asking for information, and that he received answers thereto, which answers were contained in and written on such circulars and which answers were and are statistical details relating to the commercial, social and sanitary conditions and the productive industries of the State and that such answers were sent to and received by the defendant, Charles P. Peck, as such commissioner and public officer, in the office of the Bureau of Labor Statistics of the State of New York and filed and deposited by him in that office, at the headquarters thereof in the new capítol, in the city of Albany.

The indictment further charges that the defendants Charles P. Peck and Elbert Lodgers, on the 11th of September, 1892, at the city of Albany in the county of Albany, feloniously, willfully and unlawfully did remove or mutilate the public records, books, papers and documents so filed and deposited in the office of the Bureau of Labor Statistics, the same being then and there deposited with such ■commissioner by authority of law.

The facts above recited are material, issuable facts, which are admitted by the demurrers; the legal conclusions sought to be drawn from these facts, which are incorporated in the indictment, are not issuable facts, and not, therefore, admitted by the demurrer.

The defendants, therefore, by their demurrers to this indictment admit all the facts, charged as facts, and say by their demurrers that assuming their truth they constitute no legal, crime.

We start then, in the investigation of this case, with the following admitted facts:

First. That defendant Peck was, at the times charged in the indictment, a public officer charged with the duty of gathering statistical information for public purposes.

Sécond. That he had power and authority to compel the production to him of information in writing by jiersons and corporations to be used by him as a public officer.

Third. That he, as such public officer, issued to persons and corporations circulars containing questions relating to the statistical information which he was required as a public officer to collect.

Fourth. That such circulars were answered in writing by the persons and corporations to whom they were addressed,' and such answers, in writing, were received by him at his office or headquarters in the new capítol of the State of New York, in the city of 'Albany, and were in his possession as such officer in his said office or headquarters.

Fifth. That the defendant Peck and the defendant Rodgers willfully and intentionally removed, mutilated and destroyed such cir■'culars and answers.

Upon these conceded facts the learned counsel for the defendants insists that they do not constitute a crime.

• ¥e fully agree with the learned counsel for the defendants upon the proposition which he has so ably established by argument and authority, that a criminal charge in an indictment, based upon facts, which do not constitute a crime, is not admitted by the demurrer and a citation of authorities here upon that subject is unnecessary.

But it is urged that the papers set out or inferred to in the indictment as containing statistical information which are alleged to have been destroyed are not such books, documents, papers or things filed or deposited in a public office, or with a public officer by authority of law, as are contemplated by section 94 of the Penal Code, and upon this point it is urged that the statistics required to be gathered by the Commissioner of Labor Statistics do not come within any of the papers or documents, the removal or destruction of which constitute a crime.

The office of Commissioner of Statistics of Labor was created by chapter 356 of the Laws of 1883, and by that act and chapter 205 of the Laws of 1886 the authority to gather and tabulate statistics Was conferred upon that officer.

By section 3 of that act, as amended by chapter 205 of the Laws of 1886, the commissioner was authorized to take testimony, send for persons and papers, examine witnesses on oath, to .take depositions and any of the persons or corporations so authorized to be examined,, who shall refuse admission to said commissioner to his or its place of business for the purpose of inspection, or who shall, when required by him, willfully neglect or refuse to furnish to him any statistical or other information relative to his lawful duties, which maybe in their possession or under their control, or who shall willfully neglect or refuse for thirty days to answer any question, or questions by circular, or upon personal application, or who shall knowingly answer any such question untruthfully, * * * shall, for every such willful neglect or refusal, be deemed guilty of a misdemeanor.

The power given by this section to investigate the truth of the answer furnished to any circular issued by the commissioner, and to punish any false answer as a misdemeanor, would seem to imply a duty on the part of the commissioner to preserve the answers and-statistics thus furnished, and the ample power conferred upon the-commissioner to cause and compel such answers to be given and furnished to him as a public officer, would seem to invest such documents with the attributes of “paper, document, or other thing,, filed or deposited in a public office or with any public officer by authority of law,” within the provisions of section 94 of the Penal-Code.

We are referred by the learned counsel for the defendants to the technical definition of the word “ statistics,” as given by lexicographers ; but whatever that definition literally may be, it seems quite-clear that the legislature, for the purposes of this act, has given documentary statistical information the character of a “ paper deposited with a public officer by authority of law,” and that this indictment is sufficiently specific to bring these papers, so far as their description is concerned, within the rules requiring definiteness of' description.

The indictment both charges the crime and the act, so far as these-papers are concerned, constituting it. (Wood v. People, 53 N. Y., 513 ; People v. Dumar, 106 id., 502.)

Again, it is insisted that as the law creating the office of Commissioner of Statistics of Labor provided no specific place for the custody of these papers and made no provision requiring the commissioner to file or deposit any papers, records or documents that may come to him, he could destroy them without violating any provision of law, and that their destruction or mutilation was not a criminal ofíense.

It must be conceded that there is a great force in these suggestions, and, unless the same is met and overcome by some allegation of fact in the indictment or by some other public or general statute, then the contention of the defendant must prevail.

Bat there is a general provision of statute under which it is claimed by the learned district attorney these documents, which are official in their nature, must be retained or preserved, even though there is no provision for filing or depositing them in any public office by the Commissioner.

If the papers described in the indictment are, as we have determined, papers officially in the possession of the Commissioner and pertain to his office, then there would rest upon him, at least, an implied obligation to retain and deliver them to his successor in office under the provisions of the Revised Statutes, although there was no express provision of law for filing or depositing them in his office.

By article 5 of chapter 5, title 6, part 1 of the Revised Statute, page 376 of volume 1 (Banks & Bros., 7th ed.), it is provided as follows: Section 50. “ Whenever any person shall be removed from office or the term for which he shall have been elected or appointed shall expire he shall, on demand, deliver over to his successor all the books and papers in his custody, as such officer, or in any way appertaining to his office. Every person violating this provision shall be guilty of a misdemeanor.”

Sections 51, 52, 53 provide for a summary manner of recovery of the same by the successor in office. This provision of the Revised Statute appears to have been repealed by article 3 of chapter 681 of the Laws of 1892, and its penal and summary provisions, are, therefore, no longer enforeible, but, I think, it can hardly be maintained that the duty of an officer to deliver the books and effects of his office to his successor has been by that repeal entirely removed.

The reason for the application of such a rule to cases of this character becomes apparent when it is considered that the Commissioner may, at great expense to the State, collect statistical information wbicb may not be tabulated or embraced in Ms report before liis removal from, or the expiration of his term of, office, and by its destruction or mutilation, the information gathered, at the expense of the State, by its agent or officer, and thus its property would be lost to the State if the papers in his custody could be destroyed by him; or, to test the question of the right of the Commissioner to treat this information as his private property, which he might destroy at pleasure, let it be assumed that this statistical information had been obtained by a Commissioner, and while in Ms possession, and before tabulated or digested and reported to the legislature, the Commissioner should be removed from office, could it be reasonably contended that he could withhold these statistics from his successor without subjecting himself to the provisions of section 50 of the statute above referred to, even though there was no provision of law requiring him to' file the same or deposit it in a public office. But whether this be so or not these papers were deposited with a public officer within section 94 of the Penal Code.

TaMng this indictment as a whole we think it alleges and charges that the defendant Peck was a public officer; that the papers referred to are official papers; that they were deposited with a public officer, and they were willfully and unlawfully mutilated, obliterated and destroyed by the defendants, and that enough is alleged to bring the case within the provisions of section 94 of the Penal Code.

The order and judgment of the Court of Sessions should be reversed and judgment given for the people on the demurrers, with leave to the defendants to withdraw the demurrers and plead to the merits at the next Court of Sessions of Albany county after the service of notice of this decision.

HeReioK, J.:

“A person who willfully and unlawfully removes, mutilates, destroys, conceals or obliterates a record, map, book, paper, document or other thing filed or deposited in a public office, or with any public officer by authority of law, is punishable,” etc. (Penal Code, § 94.)

The indictment in this case charges the destruction of certain papers or documents by the defendants. Were they filed or deposited in a public office, or with any public officer, and, if so, were they so filed or deposited by authority of law ? For all these things are necessary to bring the cáse within the section quoted.

That the things alleged to have been mutilated and destroyed were papers or documents is not questioned. That they were mutilated or destroyed is a question of fact admitted by the demurrer. That the defendant Peck is the “ Commissioner of Statistics of Labor ” is also a question of fact admitted by the demurrer. That the “ Commissioner of Statistics of Labor ” is a public officer, I think, will not be questioned; so that the only questions, -it seems to me, left for consideration are, were the papers or documents filed or deposited in a public office, or with any public officer, and, if so, were they filed or deposited by authority of law.

In construing a statute, meaning should be given to every word; and a proper respect for the legislature, if no other reason, should lead us to suppose that it has chosen the words of a statute carefully; that none have been used needlessly, and that it knew the meaning of the words used; especially is this true of words used in Penal Statutes.

The statute reads “filed or deposited; ” the words “ filed ” and ‘ deposited ” are evidently not used as synonymous or as the equivalents of each other, but as words having a different signification. A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file. (Bouvier Law Diet.) ■ And the derivation and meaning of the word, as defined in the dictionaries, carries with it the idea of permanent preservation; becoming part of the permanent records of the public office where it is filed. (Rapalje & Lawrence Law Diet.; Century Diet.)

Deposit does not carry with it the same meaning; it may or may not mean a permanent disposition of the thing placed or deposited. (See Worcester’s Diet.; Century Diet.) It may mean a mere temporary disposition or placing of the thing.

And the words of the statute being coupled together, or rather disjoined by the conjunction “ or,” the same meaning is not to be given to each, but that meaning or signification which distinguishes it from the other, and thus each word given full force and effect. It would follow from this, that the section of the Penal Code cited includes papers and documents placed in a public office or with a public officer, not only for permanent care and preservation, but also those placed there for the time being, for temporary use or custody.

The indictment alleges that the papers and documents in question were circulars sent by the defendant Peck, as Commissioner of Statistics of Labor, to different persons in the State asking certain questions of them, to which they answered, their answers being contained and written upon the circulars sent out by him; that he received them and deposited and filed them in the office of the Bureau of Labor Statistics at the headquarters thereof in the New Capitol in the city of Albany.'

They were given to and received by him as a public officer; he issued the circulars in his official capacity; they were returned with the answers to him as a public official.

The act creating the office of “ Commissioner of Statistics of Labor ” is entitled “ An act to provide for the establishment of a Bureau of Labor Statistics,” it provides for a commissioner, a clerk and headquarters, that is a local official habitation or office for the transaction of its business in the -New Capitol at Albany; the act could not very well go any further and designate the room or rooms, the trustees of the capítol building do that.

The headquarters thus provided for would, when established, be very properly and appropriately described as the office of the Bureau of Labor Statistics, and it would be a public office, and a paper or document filed or deposited there it seems to me would be filed or deposited in a public office.

The indictment charges that the defendant Peck after receiving the papers or documents before described, filed and deposited them in the office of the Bureau of Labor Statistics of the State of New York at the headquarters thereof in the New Capitol in the city of Albany.

In my opinion, then, the papers set forth in the indictment were deposited with a public officer and in a public office, within the meaning of the Penal Code. "Were they so deposited by authority of law ?

The papers set forth in the indictment were circulars containing questions asking for information such as the Bureau of Labor Statistics was authorized to collect, and the answers thereto of the persons to whom snob circulars were addressed. Chapter 205 of the Laws of 1886 authorizes the Commissioner to issue circulars and to compel answers thereto, the papers in question then were received by the Commissioner by authority of law.

In construing a penal statute we should keep in view the evil sought to be corrected. These papers contained information from which the Commissioner was to make his annual report to the legislature, as provided by the law creating his office,- the collection of such information and presenting it to the public by such annual reports was the main purpose of the creation of the Bureau of Labor Statistics. Suppose, then, that after great trouble and expense, this information has been collected by letters, circulars and answers thereto and before he has had an opportunity to collate, digest and tabulate it for his report, some stranger to the office mutilates or destroys it, would not such an act come within the provisions of the statute — would it not be one of the acts sought to be reached by the section of the Code in question ?

We must not inadvertently be misled in our construction of the law by the fact that the acts charged as a violation of it were committed by the officer with whom the papers were deposited, that makes no difference as to the law; it may make a difference as to the construction to be placed upon the act done and have great weight in determining whether such destruction was willful and unlawful, but that is something to be determined upon the trial from all the facts and circumstances, and it i§ not necessary that those facts and circumstances should be set forth in the indictment; neither is it necessary to allege in the indictment whether the papers in question were destroyed before or after they had been used, tabulated or digested, or any of the circumstances under which the papers were destroyed ; such circumstances are matters of evidence not matters of fact necessary to be alleged in the indictment. The offense is a statutory one and all that is necessary is to set forth the offense as the statute defines it. (Phelps v. People, 72 N. Y., 334; People v. Conroy, 97 id., 62; People v. Willett, 102 id., 251; People v. Weldon, 111 id., 569.)

The circumstances of the crime, other than those set fprth in the statute, need not be stated. (People v. King, 110 N. Y., 418-422 ; People v. Giblin, 115 id., 196.)

If we assume that under certain circumstances it would not be unlawful for the Commissioner of Statistics of Labor to destroy the papers in question, a question not necessary to be passed upon now, and which, therefore, is neither affirmed or denied, still it is not, necessary for the indictment to negative the existence of such circumstances ; they are matters of defense to be established by the defendants upon the trial. (Flemming v. People, 27 N. Y., 329 People v. West, 106 id., 293 ; People v. Weldon, 111 id., 569-574.)

The indictment sets forth the time and place of the commission of the offense and describes the papers destroyed with reasonable certainty and alleges the facts constituting the crime in the words of the statute and is, I think, sufficient.

It seems to me, therefore, that the papers described in the indictment were received by and deposited- with a public officer and were-also deposited in a public office within the meaning of the Penal Code, and that they were so received and deposited by authority of law and that their willful and unlawful destruction is a violation of section 94 of the Penal Code. It follows, therefore, that the judgment of the Court of Sessions should be reversed.

Let an order be entered accordingly, with leave to the defendants to plead over in such form as they may be advised.

PutNám, J.

(dissenting):

By section 94 of the Penal Code, under which defendant was indicted, one who unlawfully removes, destroys or conceals a record, paper or document filed or deposited in a public office or with any public officer by authority of law is punishable. Therefore, to hold defendant under the indictment it must be determined that, under chapter 356, Laws of 1883, as amended by chapter 205, Laws of 1886, the duty devolved upon him to file, preserve and deliver over to his successor in office the papers mentioned in the indictment as. destroyed or concealed by him. It is not claimed that said statute contains any express provision requiring the “Commissioner of Statistics of Labor ” therein created to preserve such papers, but it is urged that they were received by him as a public officer of the State under the provisions of the statute, and hence are papers, deposited with a public officer by authority of law within the meaning of the Penal Code.

The act- creating a “ Commissioner of Statistics of Labor ” provides that the headquarters of the Commissioner shall be in the New Capitol, but no provision is made for furnishing him with suitable rooms or accommodations in which to file or preserve papers.

It provides that the duties of the said Commissioner shall be to collect, assort, systematize and present in annual reports to the legislature, within ten days after the convening thereof in each year, statistical details, etc. It provides the methods by which the Commissioner can obtain the statistical details to be set out in his report. He is given the power to send for persons and papers and examine witnesses under oath; to cause depositions to be taken; to inspect factories, warehouses, mines, manufactories and other establishments; to make personal inquiries in regard thereto and to seek information by circulars, to which answers must be returned within thirty days. The act leaves much to the discretion of the Commissioner as to the method of obtaining the statistical information to be contained in his annual report. If he examines witnesses the law does not compel him to take and preserve minutes of such examinations. If he inspects factories and other establishments personally, or through agents, he is not obliged to make a report or memoranda of the result of such inspection. If he obtains information through personal interviews and inquiries, no provision is made for making or filing any paper showing the result of such interviews. It is evident that, under the statute, the Commissioner, if he so elects (although, perhaps, difficult so to do), could obtain all the information used in his annual report by inspection, personal interviews of himself and agents with the proprietors of manufacturing and other establishments, and by the examination of witnesses, so that no papers whatever would be received that could be filed or preserved in his •office.

In this case, however, the indictment alleges, and the clemurrer admits, that the defendant, in the discharge of his duty as Commissioner, sent circulars to the owners, managers and lessees of mines, factories, manufacturing establishments and others requesting statistical information and received answers written upon said circulars, which circulars and answers he destroyed or concealed. Hence arises the question whether, under said act, the duty devolved upon the Commissioner to file and preserve the correspondence with various parties throughout the State from whom he received information embodied in his annual report.

I have reached the conclusion that it was not the intent of the legislature in said act to cast on the “ Commissioner of Statistics of Labor” the duty of filing and preserving correspondence entered into by him for the purpose of gathering statistical information. If there had been such a purpose I think the legislature would, in the act, have made special provisions for suitable rooms and clerks; also that information obtained by the examination of witnesses should be reduced to writing, when obtained by inspection a report of the result should be made, when, from personal interviews of himself or agents, a memoranda of the result of such interviews should also be preserved; and that such reports, memoranda and evidence, as well as all correspondence, should be preserved and filed by the Commissioner in his office. Unless some report or memoranda of information obtained by the examination of witnesses, inspection and personal interviews is filed and preserved in the office of the Commissioner, it is difficult to see of what use to the Commissioner, his successor in office, or anyone else, would be the preservation of that fragmentary part of the statistical information contained in the annual report derived from correspondence.

I think, therefore, as the duty is not, in terms, imposed upon the Commissioner to file and preserve his correspondence, it is also evident, from the language and provisions of the statute in question, that it was not within the legislative intent that such an obligation should devolve upon him, Where a public officer is required to preserve and file papers, the obligation to do so is generally plainly declared by the legislature. But, as was said In the Matter of John R. Corryell (22 Cal., 179-185), where the defendant was indicted for altering a document belonging to a public office, I can find no law requiring the defendant to preserve the papers, for the alleged destruction of which he was indicted. His circulars, and the answers thereto, having served their purpose, have become fimctus officio.

Conceding that the circulars and answers- thereto mentioned in the indictment are public papers, Peck is not criminally liable unless they were deposited with him by authority of law and he unlawfully destroyed them. Although a public officer of the State receives papers as sucli he is not bound to preserve them unless there is a duty on his part prescribed by law so to do.

Every paper in a public office, though properly received therein, does not become a public record. It must be filed or deposited by authority of law. (See 20 Am. & Eng. Ency., 507; Smith v. Lawrence, 12 Mich., 431; Milford v. Greenbush, 77 Me., 331, 332; Carrington v. Potter, 37 Fed. Pep., 768; Fox v. Lyon, 27 Pa., 15; Bouchaud v. Dias, 3 Denio, 238.)

The indictment after stating the duty of the defendant as “ Commissioner of Statistics of Labor,” and specifying the circulars sent out b}7 him requiring statistical information and the answers received written on said circulars, and which were so received by said Peck in the discharge of his duty as a public officer by authority of law at his office in the capitol, alleges that he willfully, unlawfully and feloniously concealed, mutilated and destroyed said papers.

The indictment does not allege whether said circulars and answers were destroyed before or after the information contained therein had been used, tabulated and embodied in the annual report. Hence, if the defendant might legally destroy the papers after the information contained therein had been utilized, although he could not do so before, the demurrer was properly sustained. For, in that view to sustain the charge against the defendant under the indictment, he must not only have destroyed the papers in question but have done so before the information derived therefrom had been tabulated. It was necessary for the people to allege that fact in the indictment as it would be to prove it upon the trial. Every indictment must contain a certain description of the crime of which the defendant is accused, and a statement of the facts by which it is constituted.” (Lambert v. The People, 9 Cow., 586; Code of Crim. Pro., § 284.)

In People v. Gates (13 Wend , 317), it is said: “In a criminal charge * * * there is no latitude of intention to include anything more than is charged. The charge must be explicit enough to support itself.” (See, also, Dord v. The People, 9 Barb., 675.) And it is well settled that the general charge in the indictment that the defendant’s act was committed willfully, unlawfully, feloniously, etc., does not aid a defective statement of the facts. (Commonwealth v. Hunt and others, 4 Met., 128.)

Therefore, as the indictment does not allege the fact that the alleged mutilation or destruction of said papers was prior to their being tabulated and utilized by the defendant, we may assume, as I have done in my discussion of the case, , that the alleged criminal act of defendant was subsequent to such tabulation and utilization.

If the indictment had alleged that defendant, having sent out circulars and received answers thereto containing statistical information, which circulars and answers were deposited with him in his office, at the capitol, willfully destroyed the same before the information so derived was used, tabulated or embodied in his annual report it would have presented a different case from that before us. In that case it is possible that said papers might be deemed documents deposited with a public officer by authority of law. But it is very different after the commissioner has used the information contained in such papers. The circulars and answers then become functus officio — mere waste paper. A paper, in my judgment, sent to a public officer for a certain purpose until that purpose is accomplished may be deposited by authority of law, but when such paper has served its purpose it becomes of no value. In this case, although it should be deemed that the correspondence of the Commissioner until utilized were papers deposited in his office by authority of law for a certain purpose, within the meaning of section 94 of the Penal Code, when the information contained therein was utilized and embodied in the annual report, in the absence of a statute requiring the commissioner to preserve the waste papers of his office, I think such correspondence ceased to be deposited with him by authority of law.

Counsel calls our attention to the provisions of the Revised Statutes (1 R. S., 124, 125, §§ 50, 51, 52, 53), in reference to the duty of an officer in delivering the books and papers pertaining to his office to his successor. But the papers a public officer is legally bound to deliver to a succeeding officer are only those he is obliged to file and. preserve. If no duty rested upon defendant to preserve the papers, in question, he could destroy them and the provisions of the statute to which appellant refers do not apply.

I do not think the doctrine laid down in the Irish Society v. The Bishop of Derry (12 Cl. & F., 641-688), referred to in Sturla v. Freccia (Law Rep. 5 App. Case, 623-642), to wbicb our attention is called by tbe appellant, is applicable to this case. Had defendants been indicted for destroying his annual report made to tbe legislature tbe cases cited would bave been more applicable. Tbe returns of tbe bisbop considered in those cases were like tbe return of tbe defendant to tbe legislature. It is quite evident that tbe returns of tbe bisbop to writs issued by tbe crown in tbe cases cited are not like tbe unsworn statements, either oral or written, made by various persons in tbe State to tbe “ Commissioner of Statistics of Labor ” in answer to inquiries to be used by him in making bis report to tbe State.

I conclude that before defendant should be deemed criminally liable and subject to tbe severe punishment provided by section 94 {supra) — imprisonment for five years — for tbe destruction of tbe correspondence wbicb must be deemed under tbe indictment to bave been utilized and tabulated by him, there should be a reasonably clear provision of some statute requiring him to preserve tbe papers accumulated in bis office. As before suggested, tbe correspondence having been utilized, seems mere waste paper — and there is no statutory provision, as there is no object, for its preservation. Having been used, tbe law does not require its preservation, and hence after it is utilized, it is not deposited with a public officer by authority of Icm.

I think any other construction of tbe statute would be a strained one. As stated in Lamb v. State (67 Md., 534), it is tbe duty of the courts to interpret and administer tbe legislative will; but in cases of criminal cognizance they must resolutely determine never to exceed it.”

I am, therefore, in favor of affirming tbe judgment rendered in tbe court below.

Judgment reversed, with judgment for tbe People on tbe demurrer,- with leave to tbe defendants to withdraw demurrer and plead to tbe merits.


source: Caselaw Access Project

author: Putnam, J.:

license: Public Domain

text:
    CHARLES W. AUSTIN, as Overseer of the Poor of the Town of Cambrigde, Washington County, Appellant v. SARAH A. CARSWELL, Respondent.

      Bn'oneous reception of evidence, how cured — selling liquor without a license— civil, as well as criminal, liability — liability of a proprietor for sales by a bartender.

    Illegal evidence tending to excite the passions, arouse the prejudices, awaken the sympathies or influence the judgment of the jurors, may not be considered harmless.
    To remedy an erroneous reception of evidence on a trial by jury it must be plainly stricken out or the jury must be distinctly told to disregard it.
    The plaintiff, in a civil action by an overseer of the poor to recover penalties under the excise laws, is entitled to have the jury instructed that the defendant may be liable civilly, although he may have been prosecuted criminally for the same offense.

      Qucere, as to the liability, in a civil action for penalties under the excise laws, of the proprietor of a hotel for sales of liquor without a license by his bartender, without his knowledge and against his instructions, but the receipts for which were passed over to him.
    Appeal by tbe plaintiff, Charles W. Austin, as Overseer of the Poor of the Town of Cambridge, from a judgment of the Washington County Court, entered in the office of the clerk of Washington county on the 27th day of June, 1892, on a verdict of no cause of action, rendered in favor of the defendant at a trial in the Washington County Court.
    The action was brought to recover penalties, under the excise law, for selling liquors at a hotel, known as the Union House, in the town of Cambridge, in quantities less than five gallons at a time, without a license. The action was commenced in a Justice’s Court; .and a trial having been had there, which resulted in a verdict for the plaintiff, the defendant appealed to the County Court, where a new trial was had, resulting in the judgment now appealed from.

      D. M. Westfall, for the appellant.

      John K. La/rmon and fames H. Ryan, for the respondent.
   Putnam, J.:

I think an error was committed upon the trial in overruling plaintiff’s objections to the evidence offered by defendant to show that sbe bad been taken to Sandy Hill and fined $100. This evidence was irrelevant to the case on trial, and may have had some influence upon the jury. It is held that illegal evidence tending to excite the passions, arouse the prejudices, awaken the sympathies or influence the judgment of jurors may not be considered harmless. (Hutchins v. Hutchins, 98 N. Y., 56.)

Although this evidence was improperly received, the error could have been cured had the court afterward struck out such evidence or directed the jury to disregard it. The remark of the judge that, “whether there have been prosecutions of criminal nature for offenses of this nature or not, * * * ■ is no concern of yours,” cannot be deemed a striking out of the evidence in question, or a direction to the jury to disregard it. To remedy an erroneous reception of evidence, it must be plainly stricken out or the jury must-be distinctly told to disregard it. The above-quoted instruction of the trial judge is ambiguous and does not come up to this requirement. Again, the judge was requested to charge that defendant may be liable civilly, although she may have been prosecuted criminally for the same offense. He declined to so charge on the ground that he had already charged on that point. I am unable to discover that he had charged in that regard. I think plaintiff was entitled to have the instructions requested given to the jury. For this error there should be a new trial.

It is, therefore, unnecessary to consider other exceptions, or whether the charge of the trial judge to the effect that, if Roach made the sales of liquor shown on the trial without the knowledge .or consent and against the instructions of defendant, she was not liable, is correct or not. It was shown that defendant was proprietor of the hotel, and that Roach, at the time of such sales, was her bartender. He testified that the receipts for all sales of liquor were passed over to defendant. Under such circumstances, there are authorities holding defendant liable, although Roach had sold the liquor against her express directions. (3 Am. and Eng. Ency. of Law, 258 ; Smith v. Reynolds, 8 Hun, 128 ; Keedy v. Howe et al., 72 Ill., 133 ; George v. Gobey, 128 Mass., 289 ; and see Amerman v. Kall, 34 Hun, 127; Rucker v. Smoke [South Carolina, Oct. 1892] 47 Alb. L. Jour., 35, 36.)

Without passing upon this point however, and for the reasons* above stated, I think the judgment should be reversed and a new trial granted, costs to abide the event.

MayhaM, P. J., and Heebicx, J., concurred.

Judgment reversed, new trial ordered, costs to abide the event.


author: HeeRIOK, J.:

text:
    CONRAD HOFFMANN, Respondent, v. THE FITCHBURG RAILROAD COMPANY, Appellant.

      Accident at a railroad crossing — ringing of a locomotive hell — evidence — contribu-ton'y negligence.

    As against affirmative evidence of credible witnesses of the ringing of a locomotive bell on approaching a street crossing there must be something more than the testimony of those who did not hear.it ring; it must appear that their attention was directed to the fact at the time.
    The fact that the witnesses who testify affirmatively to the ringing of a locomotive bell, in an action against a railroad company for negligence at a street crossing, are the engineer in charge of the locomotive, and other employees of the defendant company, is not, of itself, sufficient to discredit their testimony, although it is a fact for the jury to consider when there is any real conflict of evidence; but it cannot be said that there is a conflict when the only testimony opposed to such affirmative evidence is that of persons who did not listen or give heed to the presence or absence of the ringing of the bell.
    One who approaches a place of peril, as, e. g., the driver of a wagon and horses, who approaches a railroad crossing in a narrow city street, where the corner buildings come within a few feet of the tracks, must, to establish affirmatively lack of contributory negligence, be alert and vigilant in the use of his eyes and ears, and display that prudence of conduct which the situation dictates.
    Appeal by the defendant, the Fitchburg Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of Rensselaer county on the 20th day of February, 1892, upon a verdict for $3,000 in favor of the plaintiff, rendered at the Rensselaer Circuit; and from an order denying a motion for a new trial, made on the minutes of the court, in an action to recover damages for a personal injury received at a railroad crossing in a street in the city of Troy.

      T. F. Hamilton, for the appellant.

      H. A. Parmenter, for the respondent.
   HeeRIOK, J.:

The plaintiff was tbe driver of a wagon for the delivery of beer; on the day of the accident he was out with a load of-beer, consisting of some fifteen kegs, for the purpose of delivering the same to the customers of his employer; he drove down an alley or street called Green street alley, which was crossed diagonally by the tracks of the defendant; Green street alley is about twenty feet in width, the front line of the house on one corner of the alley facing defendant’s tracks is about nine feet from the nearest track, and the front line of the house on the other corner of the alley and facing defendant’s tracks is about thirteen feet from the nearest track.

As the plaintiff was driving down the alley an engine of the defendant was backing down the track towards the alley, pulling after it several cars, the engine was moving at a slow rate of speed.

There is some conflict of evidence as to the speed at which the plaintiff was driving, but both he and the person upon the wagon with him testify that his horses were upon a walk.

The plaintiff testifies that he did not hear or see the engine until his horses were upon the track, that then the cars were so near that he could not get back ;• he says when he first saw the engine it was about two rods from the crossing, he turned or swung his horses to the right, the tender of the engine, the engine being backed down, struck the rear end of his wagon, threw the plaintiff out of the wagon, broke his leg in three places and otherwise bruised .and injured him.

The only negligence claimed, as I understand it, is that the trainman having the train in charge did not give reasonable warning of its approach to the crossing over Green street. Upon that question the evidence is as follows, plaintiff’s own evidence on direct-examination :

Q. Did you hear any bell? A. No, sir. Q. Or any warning whatever? A. No, sir.

Upon the cross-examination:

Q. You didn’t hear the bell ring? A. No, sir. Q. You didn’t hear the whistle blow? A. No, sir.

On the redirect-examination:

Q. Do you know whether or not there was any bell ringing? A- I know there was none ringing; I didn’t hear it ring. Q. Had it been ringing on the engine yon could have beard it? [Objected to as incompetent.]

The Courts — Ton may state the surroundings and then whether you did hear it or not. Q. You didn’t hear it ? A. No, sir; I didn’t hear it.

ThoMas CushiNG a witness for the plaintiff gave the following testimony on the same point:

On his direct-examination:

Q. Did you hear any bell from the locomotive ? A. No, sir. Q. Were you where you could have heard it if it had been ringing ? A. I was close enough to hear it if it was rung.

Cross-examination:

Q. You don’t remember hearing a bell ? A. No, sir, I couldn’t swear I heard a bell. Q. There was no particular reason why you should listen to a bell ? A. No, sir. Q. The fact of it is you don’t know whether one was ringing or not ? A. I would not swear whether it was or not. Q. You wouldn’t swear one way or the other? A. No, sir.

Redirect-examination:

Q. You know you didn’t hear a bell? A. I wouldn’t swear positively I didn’t; to the best of my knowledge I didn’t hear any bell.

HeNRy Fletohee, a witness for the plaintiff and who was upon the wagon with him at the time of the accident, swears- upon his direct examination:

Q. Did you hear any warning of any kind? A. No, sir. Q. Did you hear any bell ? A. No, sir.

Nothing upon this point on his cross-examination.

On the part of the defendant the engineer, after testifying that he had received a warning from a switchman not to cross Fifth avenue, a street that appears to be beyond Green street, and that in consequence he slowed up his train, testified :

Q. You approached the Green street crossing? A. Yes, sir. Q. As you approached it you were going about two and a half miles an hour ? A. Yes, sir, or three miles. Q. State whether the bell was ringing? A. Yes, sir, it was. Q. Who rang it? A. John Goeway, the fireman. Q. Are you sure of that? A. Yes, sir, positive of it. Q. State whether the bell was rung continuously up to the time this wagon was struck? A. Yes, sir.

The witness was not cross-examined upon this point.

James A. Ho&AN, switchman of the defendant and the same one who warned the engineer about not crossing Fifth avenue, says that he signalled the engineer and that he slowed up ; his switch shanty is 150 to 200 feet from the Green street crossing. Q. State whether you heard the bell on the engine ringing as it approached the crossing? A. Yes, sir. Q. Ringing all the time ? A. Yes.

No cross-examination as to ringing of bell.

Gilbert DeNNirer, a brakeman on the train, after testifying to the slowing up of the train and that it was going about two and one-half miles an hour, said:

Q. State whether you heard the bell ring until they got to the crossing? A. I heard the bell ringing until he blew for brakes, and I couldn’t say whether it rang after that or not.

He was not cross-examined on that question.

'WilliAM H. Sliter, a witness for defendant, who was driving a team upon Green street, approached the track from the opposite direction from which plaintiff did, and who,- hearing the train approach, stopped his team about 200 feet away, upon his cross-examination answered as follows:

Q. You didn’t hear any bell? A. I couldn’t say, positively, I did. Q. Do you remember hearing any bell ? A. No, sir; I don’t remember hearing no bell.

This is all the evidence I can find in the case relative to any signals or warnings given or not given by the defendant of the approach of the train.

It will be observed that the evidence on the part of the plaintiff to show that no bell was rung, is that the witnesses did not hear it; none of them pretend to say “ that they listened or gave heed to the presence or absence of that signal.”

They were not “ looking, watching or listening for it, their attention was not directed to the fact.”

In the absence of any affirmative evidence of the fact, it would be going a great ways to hold that such evidence was sufficient to prove that no signal was given; but here we have the affirmative testimony of three witnesses swearing positively to tlie ringing of the bell. There is nothing against their credibility, except that one was the engineer in charge and the others employees of the defendant ; facts that are not of themselves sufficient to discredit their testimony, but, nevertheless, facts for the jury to take into consideration where there is any real conflict in the testimony; but here I cannot see that there is any real conflict worthy of the name. It seems to me to come squarely within the principle that, as against affirmative evidence of credible witnesses of the ringing of a bell, there must be something more than the testimony of those who did not hear, and it must appear that their attention was directed to the fact at the time. (Culhane v. N. Y. C. and H. R. R. R. Co., 60 N. Y., 133 ; Dyer v. Erie Ry. Co., 11 id, 228 ; McKeever v. N. Y. C. and H. R. R. R. Co., 88 id., 661.)

I doubt very much whether the plaintiff showed affirmatively a lack of contributory negligence on his part. He was traveling over a street with which he was familiar. A narrow street, the buildings upon its corners within a few feet of the railway tracks where his horses would come upon the tracks almost as soon as the wagon would reach the corner. He knew he was approaching a place of peril, how perilous, from his own testimony, he could not determine by his eyesight until he was almost upon the tracks. Those who approach a place of peril must be on the alert and vigilant in the use of their eyes and ears and display that prudence of conduct which the situation dictates. (Heaney v. Long Island R. R. Co., 112 N. Y., 122.)

The accident took place in broad daylight, and the circumstances detailed by the plaintiff and his witnesses do not, it seems to me, show that alertness and prudence of conduct on his part which, when we consider the locality, establish affirmatively the lack of contributory negligence.

For these reasons the judgment should be reversed and a new trial ordered, costs to abide the event.

MayhaM, P. J., and PutNAm, J., concurred.

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


author: Heeeice, J.:

text:
    ALMIRA M. DANA, as Administratrix, etc., of HERBERT G. DANA, Deceased, Appellant, v. THE CROWN POINT IRON COMPANY, Respondent.

      Master and servant — negligence — injury to a servant through the unexplained movement of machinery — suitable appliance — intervention of human agency.

    A workman, employed at a blast furnace, was killed while cleaning the hot-blast ' oven, in the course of his duties, through the unexplained moving of a lever which regulated the passage of the blast, and no positive act of negligence on the part of the employer was shown:

      Held, that, as it appeared that the machine was suitable for the purpose for which it was constructed, and was reasonably safe to operate, and the manner of operating it, including the handling of the lever, were matters of detail necessarily resting upon the care, intelligence and fidelity of the employees, and it was not claimed that the fellow-workmen of the deceased were not fit and competent men, a nonsuit was properly granted, in an action by the representative of the deceased against the employer, for negligence.
    It was claimed by the plaintiff in such action that all danger of the lever’s moving could have been avoided by some additional appliance.

      Held, that the employer was not negligent in that regard, since he was not bound to provide the best known or conceivable appliances; and even the appliance suggested would not insure the safety of the workmen, as human agency would still be required for its operation.
    Appeal by tbe plaintiff, Almira M. Dana, as administratrix, etc., of Herbert Gr. Dana, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of Essex county on the 28th day of December, 1891, in favor of the defendant for costs, on a nonsuit ordered at the Essex Circuit; and from an order denying a motion for a new trial, made on the minutes of the court, in an action to recover damages for the death of the plaintiff’s intestate, through the alleged negligence of the defendant, his employer, in failing to make safe the place in which the deceased was employed.

      Wallace T. Foote, Jr., and Charles 8. Foote, for the appellant.

      Richard L. Hand, for the respondent.
   Heeeice, J.:

The defendant is a corporation owning and operating a blast furnace ; as a part of this furnance, used for the purpose of heating the draft of air forced into it, called the blast, is a stove, or oven so called. This stove or oven is a large stack or chimney of iron, some seventy feet high and sixteen feet in diameter, divided into four apartments; the largest apartment is occupied from top to bottom with a large number of small fire brick flues or chimneys without lateral connections. It is operated by conducting gas into the oven, the gas is ignited, passes up through the apartments not occupied by the fire brick flues, to the top of the flues, passes over and is drawn down through the fire brick chimneys or flues, and is drawn out or escapes by a chimney valve; by this process the fire bricks are heated to 900 or 1,000 degrees Fahrenheit; when they have been so heated the gas is shut off, what is called a blast valve opened, and air, forced by powerful engines through these heated passages in the oven, is heated by the fire brick to a temperature of from 900 to 1,000 degrees; then it is conducted through an opened blast valve into the furnace, furnishing what is called a hot blast. This blast valve is located at the bottom of the stove or oven, on its front; it works vertically across a horizontal pipe, and is raised by means of compressed air admitted into a cylinder underneath.a piston directly above the blast valve, and connected with it by the piston rod and a valve stem which are joined together by a toggle joint.

The admission of air to the piston is controlled by what is called a four-way cock, that is, a cock with openings ninety degrees apart. The four-way cock is operated by a lever some fourteen inches long. When the lever is horizontal no pressure can enter above or below the piston. When the lever is depressed about forty-five degrees air is admitted under the piston and the blast valve is raised; when the lever is raised forty-five degrees air is admitted above the piston and a downward pressure is obtained, which tends to keep the blast valve closed.

There is a nut on the four-way cock which may be tightened or loosened; tightening the nut increases the friction or difficulty in moving the lever, and it is intended to be used for that purpose. The men in charge of the furnace control the ease or difficulty of moving the lever by the use of this nut. This nut would naturally tend to work loose. The evidence shows that a month or six weeks before the accident this nut was tightened up, complaint was made that it was too tight, but no change was made. I cannot find anything in the evidence as to its condition at the time of the accident.

At the time of the accident there was a small copper wire fastened by one end above the lever to what is called a pressure pipe, it was then conducted around the lever by a single turn and left hanging free, it had a tendency to hold the lever up in its horizontal position.

This wire seems to have been placed there by some of the men in charge of the furnace; it was not a part of the original construction of the machine. The nut when properly tightened would keep the lever in a horizontal position, unless some force was applied to it to move it either up or down.

There is a pathway in front of the oven, and three or four feet distant from it; there is nothing to prevent a person using the path from using or meddling with the lever. The pathway is used by the workmen to go around the ovens and to go to and from the different buildings of the defendant. Dust settles in the oven and it has to be cleaned at periods of from two to three months, and for that purpose there is a man-hole opening into the oven by means of which a person may enter and clean it.

The furnace in question, with its appliances, was put up in 1881; it is similar in construction to those used in some seventeen other places, and, so far as appears, is reasonably safe in construction and suitable for the purpose for which it is constructed. No accident of the kind in question appears ever to have happened before with any of the furnaces. The oven of defendant’s furnace had not been cleaned out for about three months, when, on the 12th day of October, 1889, the plaintiff’s intestate, Herbert Dana, entered the oven through the man-hole to clean it out; he had been in there but a very short time when the attention of other workmen was called to the sound of wind, and dirt blowing out of the oven, and the cries of Dana to help him out; he was dragged out of the oven, his clothes burned off of him, and his body a charred and blackened mass. It was noticed, half or three-quarters of an hour afterwards, that the lever instead of being horizontal was down, so that the hot blast had been turned on; the wire was still around the lever, but had apparently slipped along it. There is nothing in the case to indicate what caused the moving of the lever and the consequent turning on of the hot-air blast; whether fellow-workmen or strangers tampered with it, or how it occurred.

There are only the naked facts that the naan went into the oven, the hot-air blast was turned on, and shortly afterward it was discovered that the lever was down. Everything else is guess-work and surmise.

No positive act of negligence on the part of the defendant is shown. Neither do I see that there is anything that it omitted to do that the law required it to do. It furnished a good machine, reasonably safe to operate.

The manner of operating it, the turning on and off of the blast, the cleaning of the oven, the handling of the lever, were all matters of detail, which must necessarily be looked after by its employees, and rested upon their care, intelligence and fidelity. (Cullen v. Norton, 126 N. Y., 1; Filbert v. D, and H. C. Co., 121 id., 207.)

There is no claim here, as I understand it, that the fellow workmen of the deceased were not fit and competent men.

It is said, however, that all danger of the lever going down could have been avoided by taking it off, by providing a lock for it, or a catch, or hasp. True, but the defendant is not bound to provide the best known or conceivable appliances. (Burke v. Witherbee, 98 N. Y., 562.) But even the appliances suggested would not insure the safety of the men employed; human agency would still have to be used to remove the lever, to lock or unlock the lock, to arrange the catch or hasp; carelessness or negligence of fellow workmen or the interference of strangers would render useless such appliances. In this case it appears that the proper tightening of the nut provided for that purpose would prevent the movement of the lever, unless it was tampered or interfered with; the same causes that would render the suggested precautions ineffectual would, possibly, have rendered the one provided by the defendant useless.

I can see no error committed upon the trial sufficient to call for a new trial.

The judgment should be affirmed, with costs.

Math am, P. J., and PutNAm, J., concurred.

Judgment affirmed, with costs.


author: HeeeioK, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. P. J. MARSH v. FRANK CAMPBELL, as Comptroller of the State of New York.

      Service of notice of a tax sale — “ actual occupancy ” — Laws <?/1855, chap. 427, sec. 68.
    The establishment of a hunting camp or lodge in the North Woods by the building of a log house or hut, to be used from time to time upon hunting and fishing trips, with no other improvement or use of the land, by a person living elsewhere with his family, and with no claim of title to or interest in the land upon which the camp or hunting lodge is established or built, does not constitute an “actual occupancy” within the meaning of the statute (Laws of 1855, chap. 427, § 68) requiring service of notice of a tax sale.
    The use of an island an acre in extent, in a lake in the North Woods, as a hunting camp, without any use of the main land, except to roam over it in pursuit of game, does not constitute an actual occupancy of a whole tract on the mainland of many thousand acres.
    CeRtioRAei to review a determination of the Comptroller of the State of New York, made on the 28th day of December, 1891, denying an application for the redemption of certain lands from a sale for unpaid taxes.
    Section 68 of chapter 427 of Laws of 1855 provides that “ whenever any lot or separate tract of land sold for taxes by the Comptroller, and conveyed as hereinbefore provided, shall, at the time of the expiration of the two years given for the redemption thereof, or any part thereof, be in the actual occupancy of any person, the grantee to whom the same shall have been conveyed, or the person claiming under him, shall serve a written notice on the person occupying such land, within two years from the expiration of said time to redeem, stating, in substance, the sale and conveyance, the person to whom made and the amount of the consideration money mentioned in the- conveyance, with the addition of thirty-seven and a half per cent on such amount, and further addition of the sum paid for the deed; and stating, also, that unless such consideration money, and the said thirty-seven and a half per cent, together with the sum paid for the deed, shall be paid into the treasury for the benefit of such grantee within six months after the time of filing in the Comptroller’s office of the evidence of the service of the said notice; that the said conveyance will become absolute, and the occupant, and all others interested in the land, be forever barred from all right or title thereto.”

      J. W. Houghton and A. D. Wait, for the appellant.

      John W. Hogan and 8. W. Bosendale, ■ attorney-general, for the respondent.
   HeeeioK, J.:

This is a writ of oertiora/ri to review the determination of the comptroller of the State of New York, denying the application of the relator for the redemption of certain lands, about 14,000 acres, sold by the State for the non-payment of taxes at the tax sale of 1881, on the ground that the said lands were occupied from the year 1875 up to the time of the application to redeem, and that the People of the State of New York never served notice upon such occupant as required by law.

The alleged occupant is one Alvah S. Dunning. Upon an island about one acre in extent, situated in a lake bordering upon or included in the tract of land so sold for taxes, the island being a part of such tract, the said Dunning erected a log building thirteen feet wide and twenty-six feet in depth, the sides five to six feet in heighth, the middle of the building being about ten feet in heighth, the roof covered with bark. Inside, the building was divided into two rooms by a log partition; the front was thirteen by fourteen feet, no floor to it, and used as a woodshed; the second room thirteen by twelve, with a board floor and a window in the rear. It contained a hunter’s bed, three or four camp stools, a stove, with pipe going through the roof; a frying pan, two or three kettles, water pail, tea-pot, knives and forks, cups and saucers. The island was uncultivated, the land uninclosed, and with no improvements upon it, except the log building I have described. About six miles distant from this island in another township Dunning resided with his family; having there a dwelling-house and outbuildings, and about an acre of cultivated ground. Dunning is a hunter and guide and visited the log-house on the island from time to time, using it as a hunting and fishing station, and taking parties there on hunting and fishing excursions.

It is a custom among the guides and hunters in that vicinity to have camps in different localities for their use in hunting and fishing, having a permanent residence elsewhere. Dunning does not claim to own the land in question or any part of it. No notice of sale or to redeem was ever served upon Dunning or any of his family. I do not think it was necessary to serve notice upon him.

The object of the statute, as was said by NelsoN, J., in Comstock v. Beardsley (15 Wend., 348), in speaking of a similar statute, is to afford to any person who might happen to be an occupant * * * an opportunity to redeem, presuming that he was either owner or in some way legally interested in the land.”

Here there is no pretense of ownership or legal interest, and the case it does not seem to me comes within the spirit of the law.

I have been. referred to no case defining what is meant by the words “ actual occupancy ” in the statutes.

But it does not seem to me that the erection of a hunting lodge, hut or house, to be occasionally used for hunting or fishing purposes, where there is no claim of ownership of the land, constitutes an “ actual occupancy.”

It appears that it is the custom of the guides and huntei's of the North Woods to erect or establish so-called camps in various localities to be used by them in their hunting and fishing excursions; a single hunter might have several, located far apart in different patents or townships, and it is hardly conceivable that the occasional and temporary use of these lodges or camps constitutes an actual occupancy within the meaning of the statute, in the absence of any claim of title to the land upon which the lodge or camp is located. The statute seems to have contemplated an actual residence or dwelling-house, it might be without claim of title, merely the possession of a squatter, but still the establishment of a household; it reads: “ Such notice may be served personally, or by leaving the same at the dwelling-house of the occupant with any person of suitable age and discretion belonging to his family.” (Laws of 1855,. chap. 427, § 69.)

This evidently contemplates a dwelling-house upon the land to be sold, upon the place claimed to be occupied; it does not contemplate a service at the dwelling-house of a person in New York city who has built a hunting camp in the North Woods which he uses-from time to time for hunting and fishing. Dunning had his dwelling, his family and place of actual residence six miles away. Undoubtedly a person may have a residence in one place, and also occupy land in another, as in Stewart v. Crysler (100 N. Y., 378), where the land was used for the storage of lumber by a person who lived elsewhere ; or, as in Leland v. Bennett (5 Hill, 287), wrhere a portion of the land was cultivated, some of it used for pasture, and wood chopped and removed from it by a person who lived at a distance therefrom; but I do not think that the establishing of a hunting camp, the building of a log-house to be used from time to time upon hunting and fishing trips, with no other improvement or use of the land, by a person living elsewhere with his family, with no claim of title to, or interest in, the land upon which the camp or hunting lodge is established or built, constitutes an actual occupancy within the meaning of the statute. But conceding that the facts recited constitutes an actual occupancy by Dunning, it would only be an occupancy of the island; it is separable from the main land, and was not used by him in conjunction with it in such a manner as to make him an occupant of the whole tract. The use of an island, an acre in extent, as a hunting camp, without any use of the main land, except to roam over it in pursuit of game, does not, to my mind, constitute an actual occupancy of the whole tract of 14,000 acres. (Thompson v. Burhans, 61 N. Y., 52; Same v. Same, 79 id., 93.)

The determination of the Comptroller should be affirmed, with costs and printing disbursements.

Mayham, P. J., and PutNAm, J., concurred.

■ Determination of Comptroller affirmed, with costs and printing disbursements.


author: HeReioK, J.:

text:
    In the Matter of the Proceedings to Extend SOUTH MARKET STREET, in the Village of Johnstown, through Lands of MORTIMER WADE and Others.

      Charter of the milage of Johnstown — st/reet opening — compensation for private property taken for a public use — local special assesement not a compliance with the requirements of the Constitution.

    The provisions of the charter of the village of Johnstown (chapter 303 of the Laws of 1881, amended by chapter 136 of the Laws of 1891), in reference to the tailing of priváte land for street purposes, are to the effect that compensation shall he paid to land owners out of moneys raised by a special tax or assessment which may be placed wholly upon a limited area and number of people, or may be raised in part Fy' a general tax, and they do not provide for the village buying property on which an assessment is laid, in case there are no bidders willing to pay the assessment, nor do they make such compensation a debt against the village or impose the duty of payment upon the village:

      Held, that these provisions do not comply with the requirements of the Constitution, in that they do not provide a certain, ample and reasonably prompt method of providing compensation for land taken.
    A local special assessment, imposed on lands adjoining those taken for a public use, for the purpose of raising the money required to make payment therefor, is not a sufficient provision for compensation to comply with the requirements of the Constitution.
    Unless the statute imposes a duty upon the village to pay for land taken, it cannot be implied from the mere fact of the taking of the land for a village street.
    Appeal by James Younglove from an order of tbe Supreme Court, made at tbe Clinton County Special Term, and entered in tbe office of tbe clerk of Fulton county on tbe 14th day of October, 1892, appointing commissioners, in a proceeding instituted by tbe Board of Trustees of tbe Tillage of Johnstown, to extend a street in that village.
    Tbe proceeding was instituted under chapter 136 of the Laws of 1891, amending section 48 of tbe village charter (Laws of 1881, chap. 303), erroneously referred to, in tbe resolution of tbe board of trustees, as chapter 303 of 1890.
    Tbe appellant is tbe owner of part of tbe lands sought to be taken for the street, and also of lands adjacent thereto.
    The provisions of tbe State Constitution which apply to the question involved are as follows:

      Article 1, section 6. * * * “ Nor shall private property be taken for public use without just compensation.”
    Article 1, section 7. “ When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.”

      John M. Carroll, for appellant Younglove.

      Andrew J. Nellis, for Tillage of Johnstown.

      Philip Keek, for Wade and others.

      Harwood Dudley, for Thorne.
   HeReioK, J.:

This is an appeal from an order of the Special Term of this court appointing commissioners to ascertain and assess the damages claimed by land owners for their lands taken for the extension of South Market street in the village of Johnstown.

Among other objections made to the proceedings, is that the law under which they are taken does not provide a certain, ample and reasonably prompt method of providing compensation for the land taken. If this objection is well founded then the law does not comply with the requirements of the Constitution and the proceedings taken under it must fail.

It is contended in this case that the compensation for the land taken or to be taken is abundantly provided for, if, in no other way, that it is or will be a charge upon or claim against the village which can be met by taxation. I cannot assent to that view. I do not think the general power to raise money to pay the ordinary expenses of government or to carry into effect the powers granted by the charter is a sufficient authority or direction to pay land owners for property taken from them by such proceedings as here contemplated.

Unless the statute imposes a duty to pay, it cannot be implied from the mere fact of the taking of land for a city street. The authority to take, and the duty of the corporation to pay for the land taken, depend upon positive law. The authority to take will be ineffectual unless accompanied with proper provision for payment, but the duty of the corporation to pay the land owners must be found in the affirmative prescription or reasonable intendments of the statute.. (Sage v. Gity of Brooklyn, 89 N. Y., 189-199.)

Here, the sums awarded for damages are not declared to be debts against the city, nor is it made the duty of the corporation to pay them. The only way in which the village would be responsible,, would be for neglect to set the necessary machinery in motion to-make and collect the assessments. (McCullough v. Mayor, 23 Wend., 459; approved in Sage v. Brooklyn, 89 N. Y., 204, 205.)

In the Sage case there was an express provision of the charter,, which was held to apply to that case, requiring the comptroller of the city to pay the persons adjudged to have been injured. An-unqualified direction to pay, not out of assessments collected or from any particular fund.

So, in the Matter of Mayor v. City of New York (99 N. Y., 578),. the city was directed to pay within four months after confirmation,, and if not done the parties might maintain an action. As the court, said: “ There is no ambiguity or uncertainty about this provision,, and the citizen is not turned over to the blind remedy of uncertain and complicated assessments and a devious and doubtful litigation.”'

In the charter of the village of Johnstown there is a way provided' for compensating persons whose lands are taken in such proceedings, as these, the question is whether it provides a certain definite and, adequate source and manner of payment.” (99 N. Y., 577.)

Section 47 of chapter 303 of the Laws of 1881 (charter of the-village) grants the trustees of the village power to open and extend streets and highways in the village. Section 48, as amended by chapter 136 of the Laws of 1891, prescribes the manner in which they shall exercise such powers; it provides that “whenever the trustees shall have determined to lay out, alter, widen, straighten or extend any street, alley, lane, sewer, highway or public ground, and to take and appropriate the land necessary for the same, and shall have determined to assess the expense of such improvement, or any-part thereof, as hereinafter provided, they shall give notice,” etc. It. then proceeds to provide for the appointment of commissioners, and defines their duties, among others, that “ they shall determine and award to the owner or owners so claiming damages, as aforesaid, such damages as in their judgment such owner or owners will sus" tain by sncli improvement, after making due allowance for any benefit which such owner or owners may derive therefrom. They shall at the same time determine what real estate, if any, is benefited by such improvement, and shall assess and apportion the said damages, if any, upon such real estate, the owners of which shall have had an opportunity to be heard as aforesaid, as nearly as may be in proportion to the benefit resulting therefrom; but if the whole of such damages cannot justly and equitably be assessed on the real estate, as above provided, then the said commissioners shall only assess such proportion thereon as, in their opinion, will be equitable and just; and the balance thereof they shall assess or order to be paid by a general tax upon the village, provided said balance does not exceed the sum of $50,000; and such balance shall thereupon become a charge upon said village, and shall be added to and raised with the next general assessment or tax levy for village purposes, and the same shall be payable to the persons entitled thereto, as soon as the same shall be collected as above provided.” Section 56 (chap. 303, Laws of 1881), provides for the collection of assessments for public improvements, if the assessment is not paid that the land be sold, or that the trustees may, at their option, sue for the same in a civil action.

No provision, however, is made, as in the charters of some municipal corporation, for the village buying the property in case there are no bidders willing to pay the assessment upon it, thus insuring a sale and the collection of the assessment.

It will be seen that the law provides that the compensation shall be paid to land owners out of moneys raised by a special tax or assessment which may, in the discretion of the commissioners, be placed wholly upon a limited area and number of people, or may in part be raised by a general tax or assessment.

The constitutional validity of a law is to be tested not by what has been done under it but by what' may by its authority be done. (Stuart v. Palmer, 74 N. Y., 183-188.)

As we have seen under this law, the assessments to raise money to pay for the land to be taken in these proceedings may be levied upon a limited area, and we must test the sufficiency of the law upon the assumption that the assessment is to be levied and apportioned upon a limited area. Indeed, the resolution passed by the trustees to initiate these proceedings provides for an assessment upon a limited area of property and number of people; after providing for the extension of the street in question and announcing that the lands necessary are appropriated therefor, and setting forth the names of the persons whose lands said street will cross, it also sets forth the names of the persons whose lands and property will be benefited by such extension. They then further proceed as follows: “ Resolved, further, that the damages and expense for the extension, laying out and opening of said South Market street as aforesaid, as the commissioners hereafter appointed by the court may determine, shall be assessed and apportioned on the real property in said village, owned by the persons lastly hereinbefore named, and hereby deemed likely to be benefited thereby.”

It is contended that the commissioners are the ones to determine who are to be assessed, and whether a portion of the expense shall be assessed upon the village generally, and that any determination by the trustees is of no consequence. There is an apparent conflict in section 48, as to who shall determine how the expense shall be assessed. I shall not attempt to reconcile the different portions of the section with each other, or determine whether the trustees or the commissioners are to determine the area over which the assessment shall be spread. I have quoted the resolution to show the intention of the village authorities to confine the assessment to a limited area and to. a limited number of people, and as we have already seen, the statute is so worded that assessments can be so limited and the collection of the assessments so imposed, is the means provided to make compensation for property taken.

I do not think that such a law provides “ a certain and definite and adequate source and manner of payment.” (99 N.T., 577, supra.)

A remedy for compensation contingent upon the realization of a fund from taxation for benefits within a limited assessment district does not meet the constitutional requirements. (Sage v. Brooklny 89 N. Y., 189-196.)

A local special assessment imposed on lands adjoining those taken for raising the money required to make payment therefor is not a sufficient provision for compensation to comply with the requirements of the Constitution.

It is not certain, definite or adequate, and does not provide payment without any unreasonable delay, and anyone at all familiar with the making and collection of assessments for municipal improvements must be aware that payments dependent thereon are uncertain and very apt to be unreasonably deferred. (Chapman v. Gates, 5é N. Y., 132.)

I do not think it necessary to consider the other questions raised by this appeal, but that, for the reasons already given, the order of the Special Term appealed from should be reversed, the motion for the appointment of commissioners denied, with ten dollars costs, and with ten dollars costs of this appeal and printing and other disbursements.

Let an order be entered accordingly.

Mayham, P. J., and PutNAm, J., concurred.

Order reversed, with ten dollars costs of appeal, and ten dollars costs of motion and printing disbursements.