author: Herrick, J.: Mayham, P. J.

text:
    The People of the State of New York ex rel. William Barnes, Jr., and Others, Relators, v. The Court of Sessions of Albany County, Respondent.

      Criminal contempt of court — false report of judicial proceedings' — trial therefor — right of cross-examination of the party in contempt■ — issues raised by a disclaimer— determination of the court renewable by eertiora/ñ.

    The practice of courts for the punishment of a criminal contempt is not regulated by statute, except as prescribed by section 10 of the Code of Civil Procedure; the provisions of sections 2266 to 2292, inclusive, of the Code of Civil Procedure refer to the practice in cases of civil contempt, and do not apply to cases enumerated in section 8 of the Code of Civil Procedure, except as to the acts enumerated in such section 8, which are also enumerated in section 14 of the Code of Civil Procedure, and have resulted in the rights or remedies of a party to a civil action or special proceeding being defeated, impaired, impeded or prejudiced thereby, where the offending party is sought to be punished, as for a civil or private contempt, upon the motion of the party injured.
    An affidavit is unnecessary to institute a proceeding to punish a person for criminal contempt; the court may proceed to make the accusation upon' its own motion, and where the proceeding is by order to show cause it is unnecessary to file interrogatories before the final adjudication. .
    Dvery court is the judge as to whether a contempt has been committed against it.
    After the parties accused of a criminal contempt have been brought into court and have been notified of the charge against them, and a reasonable time has been given them to make their defense, their trial is necessarily of a somewhat summary character; and while all necessary safeguards to protect the innocent should be preserved, yet the same technical precision of pleading and evidence that is required in the trial of an indictment before a jury is not required.
    The proceeding is one conducted on behalf of the public to maintain the dignity of the court and the public respect therefor, and upon a review of such proceeding the appellate court will not be inclined to reverse the proceedings taken by a court to preserve its self-respect and maintain its dignity, unless it pretty clearly appears that injustice has been done, or the rules of law promulgated for the protection of the liberty of the citizen have been plainly violated. In such a proceeding the court acts both as court and jury, and is judge both of the law and the facts.
    A court has jurisdiction of a proceeding to punish, for a criminal contempt, persons who are charged with publishing false or inaccurate reports of the proceedings of that court, section 8 of the Code of Civil Procedure expressly making such publication a criminal contempt; and where the affidavit upon which such proceedings are instituted alleges the publication of several articles in a newspaper; that such articles were grossly false and inaccurate reports of the proceedings of the court, and that the defendants were the editors, proprietors and managers of the newspaper, and the writers and publishers of said articles, the mere denial by the defendants that they had been guilty of publishing any false or inaccurate report of the proceedings of the court is in effect an admission of the publication of such articles in the newspaper named, and that the defendants were the editors, proprietors and managers of the newspaper, and the writers and publishers of the articles set forth in the affidavit.
    The rule that a defendant making an answer to a complaint against1 him admits those things stated in the complaint which he does not in his answer deny, is not simply a rule of pleading, but is a rule of evidence as well; and where upon the hearing of a motion the party answering the moving affidavit only denies a portion of the allegations of fact alleged in them, he must be held to admit all those allegations which he does not deny.
    The defendant in a proceeding brought to punish him for criminal contempt cannot go upon the stand as a witness and give testimony which is intended to be for his own benefit, and refuse to answer questions that may tend to convict or criminate him. He must be held to the same rules that prevail in relation to any defendant charged with crime, who becomes a witness in his own behalf, and he cannot elect to give testimony as to such parts of his case as he may choose and refuse to do so as to others, and if he does so refuse, the presumption is that he does so because he cannot truthfully answer without confessing his guilt.
    The disclaimer by a person sought to be punished for criminal contempt of court, in that he has published a false or inaccurate report of the proceedings thereof, of any intention of being guilty of contempt or of the publication of any false or inaccurate report of the proceedings of such court, in so far as it raises a question of intention, is no defense or justification of his action, and is merely matter in palliation of the offense.
    The silence of a party, where he has an opportunity to deny a statement in which he is interested, is to be taken as an admission, and must be so regarded on the trial of a person for a criminal contempt of court.
    The determination of a court punishing a person for a criminal contempt, when the contempt was not committed in the presence of the court, may be reviewed by certiorari.
    Certiorari issued out of the Supreme Court of tbe State of New York and allowed on the 12th day of July, 1894, directed to the Court of Sessions of the county of Albany,' commanding it tó return to the office of the clerk of the county of Albany all its proceedings, decisions and actions in relation to the punishment of the petitioners for criminal contempt of court and imposing upon each of them a fine of $100 therefor.
    The facts relating to the procedure in this case are fully stated in the opinion of Mayham, P. J.

      Matthew Hale, for the relators.

      James W. Eaton, for the respondent.
   Herrick, J.:

This case comes before us upon a writ of certiorari to review a proceeding to punish the relators for contempt in having published a false and grossly inaccurate report of the proceedings of the Court of Sessions of Albany county.

The proceeding is one founded upon section 8 of the Code of Civil Procedure. The contempt charged is a criminal contempt.

The practice of courts for the punishment of criminal contempt does not seem to be regulated by statute any further than as prescribed by section 10 of the Code of Civil Procedure, which reads as follows. “ Such a contempt committed in the immediate view and presence of the court may be punished summarily; when not so committed, the party charged must be notified of the accusation and have a reasonable time to make a defense.”

The provisions of title 3 of chapter 11, sections 2266 to 2292, inclusive, of the Code of Civil Procedure refer, I thi^k, to- the practice in cases of civil contempt, and do not apply to the cases enumerated in section 8, unless some of the acts set forth as contempts in section 8 are also included amongst those enumerated in section 14, and have resulted in the rights or remedies of a party to a civil action or special proceeding being defeated, impaired, impeded or prejudiced thereby, and the offending party is sought to be punished as for a civil or private contempt upon the motion of the party injured.

The distinction between criminal and civil or private contempts is very clearly set forth in People ex rel. Munsell v. Court of Oyer & Terminer (101 N. Y. 245).

The provisions of the Code of Civil Procedure in relation to criminal contempts are similar to those of the Revised .Statutes, which they supersede, so that the decisions upon questions of criminal contempt arising under the Revised Statutes are applicable to cases arising under the Code of Civil Procedure.

It will be observed that the only requirements when the contempt is not committed in the presence of the court are that the party charged must be notified of the accusation and have a reasonable time to make a defense.” The form and manner of the notice is not specified ; the practice has been to proceed by an order to show cause. (The People v. Freer, 1 Caines, 518; Conover v. Wood, 5 Abb. Pr. 84.)

An affidavit seems to be unnecessary, and it has been held that the court may proceed .upon its own motion to make the accusation. (People ex rel. Greeley v. Court of Oyer & Terminer, 27 How. Pr. 14-18.)

It has been held that where the proceeding is by an order to show cause, that it is unnecessary to file interrogatories before the final adjudication. (Pitt v. Davison, 37 N. Y. 235-243 ; The Mayor, etc., v. N. Y. & S. I. Ferry Co., 64 id. 622.) Although these cases were cases of civil contempt, the principle applies in criminal cases as well.

The court below proceeded by an order to show cause. The court having directed the district attorney to take measures to bring the publisher and author or the publishers and authors of said newspaper articles before the bar of said court, the ■ district attorney prepared an affidavit, upon which an order to show cause was granted, directing the relators to show cause why they should not be punished for contempt of court in writing and publishing the articles referred to in the affidavit of the district attorney. The proceeding resulted in the court fining the relators for the contempt charged against them.

It is elementary law that every court is the judge as to whether a contempt has been committed against it. (Ex parte Chamberlain, 4 Cow. 49 ; Conover v. Wood, 5 Abb. Pr. 84; Mitchell’s Case, 12 id. 252.)

The contempt in this case was of the most outrageous character, and the only question open for discussion by this court is, as to whether there was sufficient before the court to justify the -court in finding tliat the relators were the persons guilty of the contempt that had been committed against it; this leads us to a review of the pro. ceedings had in the court. .

After the parties accused of contempt have been notified of the charge against them and brought into court, and a reasonable time given them to make their defense, the trial, if it may be so called, is necessarily of a somewhat summary character, and while all necessary safeguards to protect the innocent should be preserved, yet the same technical precision of pleading and evidence that is required in the trial of indictments before a jury is not required. The proceeding is one conducted on behalf of the public to maintain the dignity of the court and the public respect, without which courts are useless ; and upon a review of such proceedings the appellate court will not be ready to reverse the proceedings taken by a court to preserve its self-respect and maintain its dignity, unless it pretty clearly appears that injustice has been done, or the rules of law promulgated for the protection of the liberty of the citizen have been plainly violated.

The affidavit of the district attorney, referred to in the order to show cause, set forth the publication of several articles in a newspaper published in the city and county of Albany, reflecting upon the presiding judge of the Court of Sessions of Albany county, and which articles, it was alleged in said affidavit, were grossly" false and inaccurate reports of the proceedings in said court. The articles in question appear to be set forth in full in said affidavit.

. In his affidavit the district attorney alleged, upon information and belief, that the defendants (the relators here) were the editors, proprietors and managers of the newspaper named in his affidavit, and the writers and publishers of said articles.

The order to show cause was issued on the 25th day of Ajn’il, 1894. The relators appeared in court in person and by counsel on the 4th day of May, following.

As before stated, the hearing in proceedings of this character is necessarily somewhat summary, and in determining whether sufficient appeared before the court to justify It In coming to the conclusion that the defendants were the persons responsible for the writing and publication of the articles in question, we must bear in mind that the court was acting as court and jury both, and was judge both of the law and the facts, and we must try and place ourselves in tlie position of the court at that time in order to judge how the proceeding, demeanor and conduct of the defendants appeared to the court, and how far the same would justly and properly influence the judgment and opinion of the court in arriving at the conclusion that the persons then before it were in truth and fact the parties responsible for the newspaper articles in question.

On coming into court, in response to the order to show cause, the counsel for the defendants moved to dismiss the proceedings on the ground that nothing was stated in the affidavit which gives the court any jurisdiction of the proceedings; that the only statute which gave jurisdiction to any court to punish for criminal contempt was section 8 of the Code of Civil Procedure, and that the affidavit did not show the commission of any act coming within the provisions of that section or any subdivision thereof ; also, that the affidavit did not state or'point out wherein the article alleged to be published by the defendants was false or grossly inaccurate; that the affidavit, like an indictment or a complaint in a civil action, should point out wherein the report is false and wherein it is grossly inaccurate, and that until defendants are apprised of what is charged against them in that respect, they ought not to be put upon their defense in a proceeding of this kind.”

The first objection may be well termed frivolous.

The affidavit sets forth the publication of grossly abusive articles in relation to the proceedings of the Court of Sessions.

The affidavit of the district attorney states that such articles were grossly false and inaccurate reports of the proceedings. It is unnecessary to cite authorities or to demonstrate by argument that a court has jurisdiction of a proceeding to punish for a contempt persons who are charged with publishing false and inaccuate reports of the proceedings of that court. The Code of Civil Procedure, section 8, expressly makes such a publication a criminal contempt.

The second objection, that the affidavit did not show the commission of any act coming within the provisions of section 8, or any subdivision thereof, is equally untenable ; as before stated, the affidavit sets forth in full certain articles in relation to the proceedings of the court alleged to have been published in a newspaper printed in the city of Albany, and which articles, the affidavit states, to be grossly false and inaccurate reports of tbe proceedings of said court, an amply sufficient allegation to bring it within the section of the Code claimed to have been violated.

The next objection is, that the affidavit did not state or point out wherein the articles alleged to have been published were false or grossly inaccurate. It is sufficient answer to that to say that the affidavit characterizes all the articles as grossly false and inaccurate. In addition, the court did of itself then and there announce to the defendants and their counsel the particular things stated in the articles for which it proposed to hold them to answer, and that portion was pointed out to them in the following words: That portion of it in which they charge this court with assigning Henry Pecldiam to defend a repeater or a person charged with repeating, and also Mr. Andrews, stating that they were both counsel to the citizens’ committee, or some committee, Honest Elections’ committee, or something of that sort; that portion I shall require them to reply to.”

As we have seen, it was not necessary that the order to show cause should be founded upon any affidavit; the court could make an order, of its own motion and bring the defendants into court and notify them of the charge against them. Here an affidavit was made, setting forth several newspaper articles; the editors, proprietors and managers of the newspaper are brought into court, and then and there the court orally notifies them what particular portion of those articles it proposed to hold them to answer for. The court gave them what might perhaps be termed a bill of particulars.

It will be observed that up to this point no question is raised as to the affidavit being insufficient as a matter of evidence to charge the defendants with the authorship or publication of the articles in question, or that they were connected therewith by legal evidence; the only objections that are raised are as to the jurisdiction of the court to entertain the proceedings, and as to whether the facts set forth in the affidavit constitute a criminal contempt; and that the affidavit does not specify what portions of the articles published are grossly false and inaccurate ; there is not a hint or suggestion that the defendants were not guilty of the publication of the articles in question, the only question raised being whether they constitute an offense. The objection that some of the allegations were upon information and belief was not raised in any way before the court. It was claimed by the defendants that the affidavit was like an indictment or complaint in a civil action, and their objections being overruled, and the court having pointed out to them the specific portions of the articles which it claimed to be false and inaccurate reports of its proceedings, the defendants then made a verified answer to the accusation made against them. Instead of pleading not guilty, or making a general denial, as to an indictment or complaint, where it is intended to deny all that is alleged in the indictment or complaint, they answer only a part of the moving paper, which they have designated as corresponding to an indictment or complaint, but which may more properly be likened to an information. Their answer is a singular document' and reads as follows: “ The above-named defendants and each of them hereby deny, each for himself, that he has been guilty of the publication of any false or grossly inaccurate report of any of the proceedings of the said court.”

Under all rules of pleading, or of evidence, it seems to me that this must be regarded as an admission of everything charged against them, except that which is specifically denied, and so it must have appeared to the court.

It is a negative pregnant; a negative big with affirmative meaning.

The affidavit alleged the publication of several articles in a newspaper, that such articles were' grossly false and inaccurate reports of the proceedings of the court, and that the defendants were “ the editors, proprietors and managers of said paper and the writers and publishers of said articles.”

Uerely denying that they had been guilty of publishing any false •or grossly inaccurate proceedings of the court was in effect an admission of the publication of such articles in the newspaper named, and that they were the editors, proprietors and managers of the newspaper, and the writers and publishers of the articles set forth in the affidavit they were answering. The court had specified the particular portions of the articles they were to be held accountable for, and in simply using the language of the Code which defines the ■offense, in making their denial, their answer was evasive.

In the case of Yates v. Lansing (9 Johns. 395-414) it was held' •that where there is a refusal to answer to a charge against one for contempt, it is an admission by tbe defendant tliat the complaint is well founded. Upon the same principle I think it must be held that when he does answer he must be held to admit those things which he does not deny.

If we treat the proceeding as a motion, being heard on affidavits, it seems to me the result is the same. Considering it as a motion, it may be that, if the defendants had come into court and challenged the sufficiency of the allegations made against them, that as matter of law the allegations in the moving papers and the statement of the court were not legally sufficient to hold them responsible as writers and publishers of the articles in question, and had thus raised the question of-the sufficiency of the allegation upon information and belief to hold them, that the court might have held, and properly so, that there was not sufficient to hold them responsible; but they did not elect to take any such proceedings; they did not keep silent as to the facts, when called upon to make answer to the charge of being guilty as the authors or publishers of the articles in question; they chose, as.it were, to go upon the stand and be sworn by filing their verified answer, and thereby placing themselves in the same situation that the defendant in either a civil or criminal action is always placed when he becomes a witness in his own behalf, either by being sworn and giving oral testimony, or by giving testimony by affidavit or pleading. ,

The rule that a defendant making answer to a complaint against him admits those things stated in the complaint that he does not in his answer deny, is not simply a rule of pleading; it is a rule of evidence as well.

And where, upon the hearing of a motion, the party answering-the moving affidavit or affidavits only denies a portion of the allegations of fact alleged in them, he must be held to admit all those which he does not deny.

It seems to me, therefore, that the attitude of the defendants before the court, the answer to the accusation filed by them, tested by any rule of pleading or of evidence, or the construction ordinarily given to language, compels us to hold that they -were the publishers of the articles in question, and that the only issue presented to the court was, whether they were in truth and in fact false or grossly inaccurate reports of its proceedings; that was the only issue tendered, and it was tendered to tlie court wliose proceedings were purported to be published. Whether they were false or grossly inaccurate that court knew.

As we have heretofore seen, the court was the judge as to whether in that respect contempt had been committed against it.

The Court of Sessions might well have proceeded to judgment upon the answer so filed, because, as' we have already seen, it was unnecessary to file interrogatories. But, out of abundant caution, it caused interrogatories to be propounded to the defendants, and gave them ample opportunity to purge themselves of the contempt charged against them.

Separate interrogatories were propounded to each of the defendants. It is unnecessary for the purposes of this discussion to set forth the interrogatories propounded to each and their answers thereto; they are in substance alike, and a consideration of those propounded to one of the defendants, together with his answers thereto, will be sufficient to dispose of the questions relating to all of them. The following interrogatories were propounded to the defendant Barnes:

Q. 1. “ Who compose the editorial staff of the Albany Morning Express, and what are the duties of each member of the editorial staff respectively ? ”

Q. 2. Who compose the editorial staff of the Albany Evening Journal, and what are the duties of each member of the staff respectively %

Q. 3. “Is not John Hastings managing editor of the Albany Morning Express f”

Q. 4. Does not George N. Southwick sometimes write editorials for the Albany Morning Express ?

Q. 5. “ Do you know from statements made by the writer, or in any other way, who wrote the editorial in the Albany Morning Express of the issue of April 21st, 1894, and on the fourth page of said issue, entitled ‘ The Disgrace of Olute ’ %

Q. 6. “ Did George N. Southwick write that editorial %

Q. J. “Did John Hastings write that editorial?”

Q. 8. “ If you answer the two preceding interrogatories in the negative, or say that you do not know, please state whether any one besides yourself wrote that editorial, and if so, who ? ”

Q. 9. Do you know from statements made by tbe writer, or in any other way, who wrote the news article in the Albany Morning Empress of the issue of April 21, 1894, and on the eighth page of said issue, entitled, cHis Action Needs Explanation’?”

Q. 10. “ If you answer the preceding interrogatory in the negative, or say that you do not know, please state whether any one besides yourself wrote that article, and if so, who 1 ”

To these interrogatories the defendant Barnes made the following response:

The above-named defendant, "William Barnes, Jr., in response to the interrogatories filed herein, hereby denies that he has been guilty of the publication of any report of its proceedings, which was believed or intended by this defendant to be false or grossly inaccurate, and disclaims any intention on his part to be guilty of such contempt, or of any such false or inaccurate publication.
“ This defendant in response to the fourth interrogatory filed and to be administered to this defendant, answers the same, c I do not know.’
“As to eacli and every of the other interrogatories filed and to be administered to this defendant, this defendant, acting under advice of counsel, hereby declines to answer the said interrogatories, or any or either of them, upon the ground that answers to such interrogatories might tend to expose this defendant to a criminal prosecution, or might furnish evidence which could be used against him on such prosecution, and this defendant is privileged under the Constitution and laws of this State from answering the same.”

If the defendant had chosen to assert what he claims to be his rights under the Constitution, and refused to be sworn as a witness, it may be that he would have been sustained in such contention, but he made no such objection; or if he had confined himself to answering the single interrogatory that he did answer, and then making the objections to the others that he did, he would then perhaps have come within the case of People ex rel. Taylor v. Forbes (143 N. Y. 219-230). But prior to answering or raising his objection he made a voluntary statement which is not, and does not profess to be, in answer or response to any of the interrogatories propounded to him, but is intended as testimony, or a statement, in his own behalf.

He first made himself a witness in his own behalf, then answered the question he thought safe, and then raised his constitutional privilege as to the others.

The question of privilege is raised too late; a defendant cannot go upon the stand as a witness and give testimony that is, or is intended to be, for his own benefit, and refuse to answer questions that may tend to convict or criminate him. (Stover v. People, 56 N. Y. 315.)

It will be observed that the defendant does not deny that he is the publisher, proprietor or manager, or the writer of any of the articles in question, but denies that he has been guilty of the publication of any report of its proceedings which was believed or intended by this defendant to be false or grossly inaccurate, and disclaims any intention on his part to be guilty of such contempt, or of any false or inaccurate publication.”

As I have shown in discussing tlie answer filed by the defendants, this is an admission of the publication, or of responsibility for the publication, of the articles in question, and upon the most favorable construction for the defendants can only be said to raise the question as to their correctness as reports of the proceedings of the Court of Sessions, there being added to it now a disclaimer of any belief by the defendants that they were false, and a disclaimer of any intention of being guilty of contempt, or of publishing any false or inaccurate report.

In so far as this response raises a question of intention, it is no defense or justification of the defendants’ action; it is simply a matter in palliation. (People v. Freer, 1 Caines, 518; Ex parte Chamberlain, 4 Cow. 49.)

The testimony thus offered by the defendant in his own behalf, coupled with his refusal to answer the other questions propounded to him, amply justified the court in holding him guilty of the offense charged. They were put in a position to purge themselves if they were innocent; if innocent, they could deny that they were the publishers of the newspaper in which such articles appeared, or that they were the writers or authors of such articles; but when they elected to deny any intention of publishing any false or inaccurate reports, and to deny the publication of any report of the proceedings of the court which they believed to be false, and remained mute as to the matters of fact set forth in the affidavit, and refused to answer the interrogatories propounded to them, it must be assumed, under the rules of evidence, that they did so because they could not truthfully' deny the facts alleged, and could not truthfully answer the interrogatories propounded to them without avowing their guilt.

The silence of a party where he has an opportunity to deny a statement in which he is interested is taken as an admission, and must be so regarded on the trial. (1 Taylor on Ev. 809.)

Having volunteered to give testimony in his own behalf, there is no reason why he should not be held to the same rules that prevail in relation to any defendant charged with crime who becomes a witness in his own behalf; he cannot elect to give testimony as to such parts of his case as he may choose and refuse as to others, and if he does so refuse the presumption is that he does so because he cannot truthfully answer without confessing his guilt. (Stover v. People, 56 N. Y. 315; Andrews v. Frye, 104 Mass. 234.)

Thus the court below, after a full consideration of the defendants’ case, both upon the answer filed by them and upon the testimony given by them in response to the interrogatories filed, adjudged not only that the contempt had been committed against the court, but that the defendants were the persons guilty thereof. It was a trial upon the merits as much as any such proceedings well can be ; an adjudication both\ipon the law and the facts;' and there being some evidence to sustain the finding of fact, this court will not disturb it.

The only defense offered upon the part of the defendants was that they had no intention of committing any contempt, or of publishing any false or inaccurate report of the proceedings of the court, and that they did not believe that they had done so; this, as before stated, was simply a palliation of the offense, and seems to have been taken into consideration by thé court in imposing sentence in the case, a very moderate one for the gross.nature of the offense committed.

I can see nothing in these proceedings which would warrant me in saying that the court was not justified in holding that the relators were responsible for the publication or writing of the articles in question. I do not see that in so holding the court violated any rule of law that is necessary for the protection of the liberty of the citizen. The defendants have been granted ample opportunity to purge themselves of the contempt charged, and they have failed to do so.

The certiorari should, therefore be quashed, and the decision of the Court of Sessions affirmed.

Putnam, J., concurred.

Mayham, P. J.

(concurring):

Proceedings having been heretofore instituted in the Court of Sessions to determine whether the relators had been guilty of contempt of that court in publishing certain alleged libelous articles reflecting -upon that court, on the 12th of May, 1894, the court made the following order or determination:

“ On all of the papers in the proceeding, the parties appearing in person and by counsel, and after hearing Matthew Hale, Esq., of counsel for the defendants, and James W. Eaton, Esq., district attorney of the county of Albany, we did determine and adjudge that the said William Barnes, Jr., George N. Soutliwick and Arthur Lucas to be guilty of criminal contempt of court, and did sentence said William Barnes, Jr., George N. Soutliwick and Arthur Lucas, as a punishment for said offense, to each pay a fine of 'one hundred dollars, or in lieu thereof to each stand committed to the Albany County Jail for the period of thirty days.”

This order of conviction was duly signed by the county judge presiding at such Court of Sessions, and by the associate justices of Sessions, and was attested by the signature and seal of the clerk of that court.

For the purpose of reviewing that conviction and determination the relators, on the 12th day of July, 1894, applied to the Special Term of this court for, and obtained, an order that a writ of certiorari issue out of this court, directed to the Court of Sessions of Albany county, and staying all proceedings in execution of the conviction pending such certiorari, and on the same day a writ of certiorari was issued and allowed by the justice holding such term, directed to the Court of Sessions of Albany county, among other things commanding that court to certify and return to the Supreme Court, at the office of the clerk of Albany county, all and singular, the proceedings, decisions and actions of the Court of Sessions in the premises, and all the evidence, documents, records or papers before it, or which were submitted to it concerning the same, and all the affidavits offered to, and filed with such Court of Sessions in relation thereto, with the rulings and decisions of the court thereon, to the end that the decision and action of such Court of Sessions might be reviewed.

To this writ the Court of Sessions made and filed a return, setting forth that on the 25th of April, 1894, James W. Eaton, district attorney of the county of Albany, presented his affidavit, duly verified, also a newspaper, the Albany Morning Express, dated April 21,1894, extracts from which were made a part of the affidavit, upon which affidavit and extract the court made an order requiring the relators to show cause before it on the 27th day of April, 1894, why they and each of them should not be punished for a contempt of court. The affidavit of James W. Eaton, district attorney of Albany county, set out the fact that on the 20th day of April, 1894, the grand jury reported several indictments to the Court of Sessions, at which Hon. Jacob H. Olute, county judge of Albany county, presided, among which were indictments against John Hughes and William Hoyle for assault in the second degree, and John Bonally for violating the election laws, who, on being arraigned in such Court of Sessions, Judge Chute assigned Henry W. Peckham, a member of the bar, to defend Hughes and Hoyle, and Albert L. Andrews, also a member of the bar, to defend Bonally upon the indictments against them respectively.

The affidavit also showed that on the morning of the twenty-first day of April, and while the Court of Sessions was still in session, the Albany Morning Express, a daily newspaper printed in the city of Albany, where such court held its sessions, containsd an article reflecting upon the presiding judge and upon his integrity, and tending to influence popular passion concerning the cases and concerning the assignment of counsel in the same, and thereby tending to impede and obstruct the administration of justice and to impair the respect and authority of the court, such publication being a grossly false and inaccurate report of the proceeding of the court, and which affidavit set out the article so published, a portion of which is as follows:

“The Biscrace oe Chute.
“County Judge Jacob H. Olute added to his unsavory notoriety yesterday by assigning Arthur L. Andrews and Henry A. Peckham to defend men who were arrested on election day, charged with attempting to vote illegally. Messrs. Andrews and Peckbam have been prominent among the lawyers whose services have been given freely and without charge to prosecuting violators of the election laws.
“ Of this fact Jacob II. Clute, of course, was fully aware, not only because their activity in the interest of honest elections has been a matter of current news, but also because they have appeared before Judge Clute’s own tribunal in the performance of their duty. In the light of these facts, the low-down character of the judicial trick to which Jacob IT. Clute descended, may be realized.”

The affidavit also referred to the following article published in such paper:

“ Ills Action Needs Explanation.
“Judge Clute Assigns Committee oe 50’s Counsel to Defend Alleged Repeaters.
“He 'Names Messrs. Arthur L. Andrews & Harry A. Peckbam. “Both Men Have Been Indefatigably Active In Securing Evidence Against Violators Of The Election Law. • — • Nobody Has Yet Suggested That Perhaps Judge Clute Is Laboring Under The Delusion That He Is The Chief Comedian In A Earce Company. * •» *
“Yesterday, when the grand jury returned with indictments against several of the men charged with infraction of the election laws, this same Judge Clute gave proof that he still has a peculiar-conception of the duty of a public official. He designated to defend two of the men so accused, Messrs. Arthur L. Andrews and Harry A. Peckbam, lawyers, who, as counsel for the Committee of Fifty, have been indefatigable for many weeks in their efforts to secure the conviction of any who might be guilty of crooked work in connection with the election.”

The affidavit further states :

“ That, as deponent is informed and believes, the above-named defendants are the editors, proprietors and managers of said paper, and the writers and publishers of said articles.
That a complete copy of said paper containing said articles is herewith filed, marked Exhibit ‘A,’ and made a part of the papers to be used upon this application.
“ That no previous application has been made for the order hereby asked. Wherefore, deponent prays that an order to show cause ' issue from this court requiring said defendants,"William Barnes, Jr., George N. Southwick, John Hastings and Arthur Lucas, to show cause before this court at some time therein stated, why they, or each or any of them, should not be punished for contempt of this court in the writing and publication of the articles hereinbefore set forth.”

The return also contained the order to show cause, the proceedings had thereon before the Court of Sessions, the answers of the several defendants on oath, each denying that he had been guilty of the publication of any false or grossly inaccurate report of any proceedings of said court. Interrogatories were then propounded to each of the relators separately, to which answers were severally made, none of which directly denied the allegations in the affidavit of Mr. Eaton, charging, on information and belief, that the defendants were the editors, publishers and managers of the said paper, and the writers and publishers of the articles charged as contumacious.' Thp effect of the determination of the court was that the relators were in contempt of court, and that they had not purged themselves of such contempt by their answer to the order to show cause or on their answers to the interrogatories.

It is now urged by the learned district attorney that conviction for criminal contempt cannot be reviewed on certiorari, and that the exception contained in section 2148 of the Code of Civil Procedure, passed in 1889, of criminal contempts of court, has been repealed by chapter 372 of the Laws of 1884. Section 515 of the Code of Criminal Procedure provides as follows :

Writs of error and of certiorari in criminal actions and proceedings, and special proeedings of a criminal nature, as they have heretofore existed, are abolished, and hereafter the only mode of reviewing a judgment or order in a criminal action or proceeding, or special proceeding of a criminal nature, is by appeal.”

The language of this section is so broad and comprehensive that but for the recent decision of the Court of Appeals in the case of The People ex rel. Taylor v. Gerrit A. Forbes (143 N. Y. 219; 71 Official Series, Oct. 20, 1894) I should have little doubt in holding that the remedy in a case like this is by appeal and not by certiorari. But the authority of that decision cannot be ignored by this court, and I see no way of distinguishing it in principle from the case at bar. Both are certiorari from conviction for a criminal contempt, neither of which are enumerated in the Code of Criminal -Procedure, and the Court of Appeals hold that the “ special proceedings of a criminal nature ” referred to in section 515 of the Code of Criminal Procedure are only those designated as such in that Code.

We must, therefore, consider and determine whether or not this conviction can be sustained upon the merits.

On the return of the order to show cause the defendants in that proceeding appeared in person and by counsel and moved that the order be vacated and set aside, which motion was denied, and the presiding judge in denying the motion called the attention of the defendants to the charge in the publication, that he, as presiding judge, has assigned Henry A. Peckham and Arthur L. Andrews to defend men who were arrested on election day charged with attempting to vote illegally, and that Peckham and Andrews, whose services had been given to prosecuting violators of the election laws, had been assigned by the court to defend violators of the election laws, whereas the persons whom Mr. Peckham wras assigned to defend were indicted for an assault, and Arthur L. Andrews was not counsel for the committee of fifty to prosecute election frauds as charged in such publication, and that the report published in the Express was not a true publication of the proceedings in court, and was, therefore, a contempt.

It seems that the portion of the articles on which the court rested the charge of contempt is mainly found in the compieneement of the published articles which seem to form the basis of the assault upon the court, of which the balance of the article is full; it commences as follows:

“The Disgrace of Clute.
“ County Judge Jacob H. Clute added to his unsavory notoriety yesterday by assigning Arthur L. Andrews and Henry A. Peckham to defend men who were arrested on election day charged with attempting to vote illegally.”

The article then proceeds to allege that those lawyers had been engaged in prosecuting violators of the election laws, and that the judge was cognizant of that fact. It then proceeds as follows: “ In the light of these facts the low-down character of the judicial trick to which Jacob IT. Clute descended may be realized.

“ ITe availed himself of his power as county judge to place these two worthy lawyers, who have fought to prevent suffrage stealing in Albany, in the dilemma of defending election criminals, or else subjecting themselves to a fine of $500 and imprisonment for thirty days for contempt of court.” The affidavit of the district attorney, used before the court in obtaining the order to show cause, shows that the indictment against John Hughes and William Doyle, whom. Pecldiam was assigned to defend, was not for violation of ,tlie Election Law, and that they were not charged with attempting to vote illegally, but that such indictment was for an assault not connected with election or committed on election day. It would seem to follow, therefore, that the article complained of was not a substantially correct account of a judicial proceeding in court, which would be a privileged and lawful publication, but was, upon its face, false and used as the pretext for making a most offensive and disgraceful attack upon the Court of Sessions, while such court was in session, tending to hold it up in a most unfavorable and ridiculous light before the public, and in a manner well calculated to impair the1 public confidence and respect for that important tribunal, charged, as it is under the law, with the trial of most of the criminal offenses in the administration of the criminal law in that county.

Can the court, under such circranstances, vindicate its good name and punish as for contempt for the publication of a false report of its proceedings and a false, scurrilous and censorious attack made upon its integrity through a public newspaper ?

If it has such authority, the charge made against it in this case would seem to justify this exercise.

Section 143 of the Penal Code defines criminal contempt of courts, and while it makes them misdemeanors, it does not take from the court the power of inflicting summary punishment. Subdivision 7 of that section makes the publication of any false or grossly inaccurate report of its proceedings a contempt of court.

'Assuming, therefore, that the relators by this publication are brought within the definition of criminal contempt, as defined in the subdivision above referred to, did the court in this proceeding acquire jurisdiction of the subject-matter and of the persons of the relators so as properly to enable it to impose the penalty ?

Section 10 of the Code of Civil Procedure, after specifying the causes of criminal contempt, among which is the one charged in this case, provides : “ Such a contempt committed in the immediate view and presence of the court may be punished summarily; when not so committed the party charged must be notified of the accusation and have a reasonable time to malee a defense.”

The alleged offense in this case was not committed in the presence of the court, and the accused parties were entitled to, and were given, reasonable time to make their defense. The affidavits aiid order to show cause were duly served upon the relators, and no question seems to be made of the sufficiency of the notice, and all of the defendants, as we have seen, appeared before the court in person and by counsel.

There is, therefore, no serious question as to the jurisdiction of the court, nor do we think the determination of the Court of Sessions as to the relators’ participation in the publication of this contumacious libel can be questioned here. The production of the printed article in the paper in which it was printed proved the publication, and the affidavit of the district attorney established prima facie the participation of the relators in its -publication. That prima facie case was in no way affected by the evasive answers of the defendants or by any proof offered by them.

That question was fairly raised and might have been controverted by the relators, either by their answer or by answers to the interrogatories filed, or by independent proof before the court.

It is true that they were not bound by these answers to criminate themselves, and that no legitimate conclusions or inference of guilt can be drawn from the assertion of their privilege, but the facts of the existence and assertion of such privilege does not relieve them from the prima facie case made against them by the affidavit of the district attorney.

On the whole case I think the order and conviction for contempt of court must be affirmed and the writ of certiorari quashed, with fifty dollars costs and printing disbursements.

Let an order be entered accordingly!

Proceedings of the Court of Sessions affirmed, writ of certiorari quashed, with fifty dollars costs and disbursements.


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

text:
    Julia A. Klock, Respondent, v. Fanny Brennan and Another, as Executors, etc., of George B. Bixby, Deceased, Appellants.

      Witness incompetent under section 829 of the Code of Oivil Procedure — exception where the testimony is in favor of the executors — evidence as to part of a conversation entitles the opposite party to prove the rest of it.

    The exclusion of tlie testimony of a witness upon the trial of an action brought against the executors of an estate, upon the ground, that the witness was not competent to testify under the provisions of section 829 of the Code of Civil Procedure, is erroneous, although the witness was an executrix of and a legatee under the will of the testator, where she was called as a witness to testify not against but in favor of such executors.
    Where a witness, in behalf of one of the parties to an action, gives evidence as to a conversation, the adverse party has the right to give in evidence by a different witness any further part of such conversation which would in any way explain or qualify that portion thereof already introduced in evidence by the adverse party.
    Appeal by the defendants, Fanny Brennan and another, as executors, etc., of George B. Bixby, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of tlie county of Saratoga on the 21st day of September, 1893, rendered upon the report of a referee, with notice of an intention to bring up for review upon such appeal all rulings, facts, findings, refusals to find, exceptions, orders and tlie said judgment.

      J. W. Ilouglvton, for tlie appellants.

      Jesse Stiles, J. 8. HAmoreaux and L. Varney, for the respondent.
   Herrick, J.:

This is an action by the plaintiff against tlie defendants as executors of the estate of George B. Bixby, deceased, for the board, care and attendance by the plaintiff of a sister of George B. Bixby, for which the plaintiff alleges tlie defendants’ testator, George B. Bixby, agreed to pay.

The case was tried before a referee, who rendered judgment in favor of the plaintiff and against the defendants, from wlrick judgment the defendants appeal to this court.

Upon the trial it appeared that the sister of said Bixby, named Electa, for whose care and attendance this action was brought, had lived for a number of years with her brother, until about April, 1882, when, being upwards of eighty years of age, sick and infirm, she left or was taken from the house of the said George B. Bixby to that of the plaintiff, and was there maintained and cared for, as plaintiff claims, under an agreement on the'part of said Bixby to pay the plaintiff therefor. This agreement was sought to be established by alleged admissions made by Bixby, and by the direct testimony of at least one witness.

The defendant Fanny Brennan was placed upon the stand as a witness in behalf of the defendants, to testify as to a conversation that took place between one Benjamin Cady, a witness sworn upon the trial in behalf of the plaintiff, and George B. Bixby, at the time when it was proposed to take Bixby’s sister to the house of the plaintiff. The testimony proposed to be given by such witness was objected to on the ground that the witness was not competent to give evidence in this action under section 829 of the Code, as she was the executrix of, and also a residuary legatee under, the. will of the said George B. Bixby, which will was introduced in evidence upon the trial, and that the evidence proposed to be given was improper, immaterial and irrelevant.

This exclusion of the testimony of the witness Fanny Brennan, although she was an executrix of, and a legatee under, the will of the said George B. Bixby, upon the ground that she was not a competent witness, was error. She was not a witness against, but in favor of the executors, and as such, was competent. (McLaughlin v. Webster, 141 N. Y. 76.)

The testimony offered to be given by the witness Fanny Brennan I think was material. The witness Benjamin Cady, sworn for the plaintiff, had testified that he had visited the house of the testator Bixby, had spoken to his sister in reference to going with Mrs. Klock, the plaintiff, and then asked the testator “ if he had any .objection to her going, and he said he had not.” He subsequently testified that Bixby called that same evening to see his sister, and that he heard him say to the plaintiff, “ Take good care of Electa, and you shall have your pay for it.” That he saw Bixby the next day, and Bixby told him to tell the plaintiff “to take good care of Electa, and she should be well paid for it.”

Upon the cross-examination, after again repeating that Bixby said that he had no objection to his sister going with the plaintiff, he was asked the following questions: Q. Didn’t he say to you then that there were enough people in the house to take care of her, and if not, he would get more ? A. Not to my recollection, not to my knowledge, he didn’t make that remark. Q. And didn’t lie say further that if you or Firs. BLloek took her away, never to expect anything more from him? A. No, sir; I will swear positively I did not understand him to say that; he did not say so, not that I heard.”

After proving that the witness Fanny Brennan was present at the interview between the witness Benjamin Cady and the testator Bixby the witness was asked what was said by Benjamin Cady and the testator Bixby at such interview; and it was offered to show by her at such interview, that Bixby said to Cady, that his sister Electa “ could stay at his house if she wanted to; that it had always been her home; that he didn’t want her to go away; that if there wasn’t help enough about the house 'to take care of her that he would get more; that if she needed a doctor he would send for one, but that if she went away he washed his hands of the whole transaction, and they need never look for him for anything for her support or care; and they must never run any bills against him; that he was willing to take care of her as his sister, but that if she left he would do nothing for her, nor pay any bills in her behalf.”

The witness being competent, as we have seen, and the plaintiff having by the witness Cady given in evidence part of the conversation, the defendants had a right to give in evidence any other or further part of the conversation which would in any way explain or qualify that portion introduced by the plaintiff. (Rouse v. Whited, 25 N. Y. 170; Platner v. Platner, 78 id. 90 ; People v. Beach, 87 id. 508-512; Grattan v. M. L. Ins. Co., 92 id. 274-284.)

Again, it wras competent and material for the purpose of contradicting the witness Cady, not only as a direct contradiction, but also as showing the improbability of the story he told ; according to his testimony, Bixby, upon the occasion of his sister being taken away, expressed his willingness that she should go, and on the evening of the same day made an express promise to pay for her care and maintenance. The testimony offered upon the part of the defendants of the conversation had in reference to her leaving Bixby’s bouse, not only contradicted that given by the witness Oady, but, if believed, might well be taken in consideration by the jury in determining whether, after making such strong expressions of his willingness to care for his sister at his own house, and refusing to pay for her care elsewhere, it was probable that, on the evening of the same day, he should so utterly and entirely change his mind as to make an express promise to pay for her care and maintenance at the plaintiff’s.

The views herein expressed as to the competency of the witness Fanny Brennan, and the materiality of the evidence offered through her, applies as well to the witnesses James Brennan and Eliza Streeter, sworn upon the part of the defendants, and whose testimony in relation to the conversation hereinbefore referred to between the witness Benjamin Cady and the testator Bixby 'was excluded by the referee because of the supposed incompetency of the witness under section 829 of the Code.

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

Mayham, P. J., concurred in result; PutNAm, J., not acting.

Judgment reversed, referee discharged, new trial granted, costs to abide the event.


author: JIeRRICK, J. :

text:
    Ethan Akin, Respondent, v. The Water Commissioners of Amsterdam, Appellants.

      JSminent domain — commissioners appointed under chapter 101 of 1881, as amended by chapter 197 o/1882 and the acts amendatory thereof — waiver by a corpos'ation of its constitutional and statutory rights — award, when not disturbed by the General Term.

      A. corporation by going into court and consenting to the appointment of commissioners under chapter 101 of the Laws of 1881, as amended by chapter 197 of the Laws of 1882 and the acts amendatory thereof, to determine the damages alleged to have been sustained by a landowner by reason of the taking by such corporation of certain real estate, tenements, property rights and interest, thereby estops itself from thereafter raising any question as to the power and authority of the court to make such appointment; and by thereafter going before the commission and participating in its proceedings without objection, and taking the chances of a favorable result, it waives the right (if disappointed in its expectations) to raise the question of lack of authority or of irregularity in the proceedings.
    A corporation has the right and the power to waive its constitutional and statutory rights, and having once done so it cannot subsequently claim them.
    While the General Term of the Supreme Court is not necessarily governed by the fact that the commissioners appointed under chapter 101 of the Laws of 1881, as amended by chapter 197 of the Laws of 1882 and the acts amendatory thereof, have made a personal inspection of the premises alleged to have been injured, yet that fact, if the damages awarded by them are not grossly excessive, calls for an affirmance of their decision and that of the Special Term which confirmed their award.
    Appeal by tbe defendants, Tbe Water Commissioners of Amsterdam, from an order of tbe Supreme Court, made at the Schenectady •Special Term and entered in the office of the clerk of the county of Montgomery on the 2d'day of July, 1894, denying the defendants’ motion to vacate and set aside the award of the commissioners of appraisal, and also from an order entered in said clerk’s office on the same day confirming their report and award, with notice of an intention to bring up for review upon such appeal the order appointing commissioners of appraisal, the' order denying the defendants’ motion to vacate the award and the exceptions filed to the award.
    This proceeding was taken by the petitioner, Ethan Akin, under the provisions of chapter 101 of the Laws of 1881 and chapter 191 of the Laws of 1882, and the acts amendatory thereof, with a view of obtaining compensation and an award for the title to and right to use certain real estate, tenements, property rights and interest, alleged to have been taken by the board of water commissioners of the city of Amsterdam, and to obtain the appointment of commissioners of assessment to determine the damages sustained by the petitioner and by all persons interested in the lands named in the petition by reason of the taking thereof.

      O. 8. JZisbet, for the appellants.

      Z. 8. Wesibroobe, for'the respondent.
   JIeRRICK, J. :

The commissioners to appraise the claimant’s damages were appointed without objection; the defendants appearing by counsel consented to an adjournment of the said motion for the purpose of agreeing upon the commissioners, and upon such adjourned day counsel for defendants again appeared, and the commissioners were appointed without objection on the part of the defendants, the personnel of the commissioners haying been apparently agreed upon.

The defendants by their counsel appeared before the commissioners upon the assessment of damages, participated in the hearing, cross-examined the claimant’s witnesses, produced witnesses of their own, and at no time raised any objection to the authority of the commission to make the assessment of damages.

After the commission made- its award the defendants for the first time, so far as the record shows, raised objections to the authority of the court to appoint such commissioners, and the authority of the commissioners to appraise claimant’s damages, by making a motion before the court for an order to set aside and vacate the order theretofore made appointing such commissioners to appraise and assess the claimant’s damages.

I think the objection comes too late; the question of jurisdiction should have been raised in the first instance.

By going into court and consenting to the appointment of commissioners, it seems to me that the defendants thereby foreclosed themselves from thereafter raising any question as to the power and authority of the court to make such appointment, and by thereafter going before the commission and participating in its proceedings without objection, and taking the chances of a favorable result, they should not be permitted, upon being disappointed in their expectations, to raise the question of lack of authority or of any irregularity in the proceedings. (Cowenhoven v. Ball, 118 N. Y. 231; Russell v. Randall, 123 id. 436.)

If the defendants had any right to have the question of the claimant’s damages determined by a common-law .jury in an action at law, they waived that right by their participation in the proceedings in the manner I have stated.

They had the right and the power to waive their constitutional and statutory rights, if any, and, having once done so, they cannot subsequently claim them. (Matter of Cooper, 93 N. Y. 507; Russell v. Randall, 123 id. 436; Sentenis et al. v. Ladew et al., 140 id. 463; Mayor v. M. R. Co., 143 id. 1.)

The order appealed from denying the motion to set aside and vacate the order appointing commissioners should, therefore, be affirmed.

Upon the question of damages there was a conflict of testimony before the commissioners, and while the preponderance of evidence appearing upon the record is rather in favor of the defendants, yet the commissioners viewed the premises alleged to have been injured, and are, therefore, much better able to determine what estimate of the damages was the nearest to being fair and just than the court can possibly be, and while this court is not necessarily governed. by the fact that the commissioners have made a personal inspection of the premises alleged to have been injured, yet that fact, together with the other one, that the damages awarded do not appear to be grossly excessive, it seems to me calls for an affirmance of their decision and of that of the Special Term which confirmed their award.

The appeals from both orders have been conducted and argued as one appeal, and only one set of papers having been printed for both appeals, but one bill of costs is allowed. Let both the orders appealed from be affirmed, with costs and disbursements as of one appeal.

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

Orders affirmed, with costs and disbursements as of one appeal.


author: PUTNAM, J.: Herrick, J. Matham, P. J.:

text:
    Frances E. Williams, Respondent, v. The United States Mutual Accident Association of the City of New York, Appellant.

      Accident insurance — defense of voluntary exposure to danger- — -negligence as a matter of law — exposure to save life — amendment to an answer on the second trial of an action.

    Upon tlie trial of an action brought against an insurance company to recover on a policy of accident insurance, which contained the provision that the insurance “ shall not extend to or cover * * * suicide, felonious or otherwise, sane or insane, * * * voluntary exposure to unnecessary danger, i:' * * or walking on the roadbed or bridge of any railway,” it is for the defendant to establish the defense that the assured, at the time he was killed by being run down by a train on a steam railroad; went upon the tracks in front of the approaching train with a suicidal intent, or that he voluntarily exposed himself to unnecessary danger, and that his death resulted therefrom. The plaintiff is not compelled to show as part of her affirmative case that the deceased did not commit suicide or did not voluntarily expose himself to unnecessary danger.
    Voluntary is defined to mean “ done by design or intention; purposely; intentional; not accidental,” and to show a voluntary exposure on the part of the deceased the evidence must disclose a design or intention on his part to expose his life, or a high degree of negligence; something more than ordinary negligence is necessary.
    Where a person had time, or had reason to believe ho had time, to cross a railroad track in front of an approaching train, and in crossing fell and was run over by such train, negligence will not be imputed to him as a matter of law.
    The law hesitates to impute negligence to a person who has exposed himself to danger for the purpose of saving life.
    It is within the discretion of a trial court to allow ail amendment to an answer on the second trial of an action.
    Herrick, J., dissenting.
    Appeal by the defendant, The United States Mutual Accident Association' of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 19th day of April, 1894, upon the verdict of a jury, rendered after a trial at the Saratoga Circuit, and also from an order made at the Saratoga Circuit on the 19th day of. April, 1894, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such appeal said judgment and order and the exceptions taken upon the trial of the action.

      Winsor B. French and Biehcurd L. Fcmd, for the appellant.

      Theodore F. Hmnilton and Edgw T. Brachett, for the respondent.
   PUTNAM, J.:

This action was brought on a contract of accident insurance by which defendant insured the life of Alonzo C. Williams for the sum . of $5,000 against death through external, violent and accidental means.

On the evening of November 22, 1889, said Alonzo was struck by a locomotive on the crossing of the Adirondack railway track, at Church street, Saratoga Springs, N. Y., and killed. Due proofs of death having been furnished defendant, it became liable to the plaintiff under the insurance contract, unless tlie defenses set up in the answer were established by tlie evidence on tlie trial.

Tlie contract, among other tilings, provided that the insurance “ shall not extend to or cover * * * suicide, felonious or otherwise, sane or insane, * * voluntary exposure to unnecessary danger * * * or walking on the roadbed or bridge of any railway.”

Defendant claims that "Williams, at the time he was injured, in going on the railroad track in front of an approaching engine in plain view, and which he saw, acted with a suicidal intent, or, at least, voluntarily exposed himself to unnecessary danger ; that ^ his death resulted from gross negligence, and hence plaintiff was not entitled to recover.

On the first trial plaintiff obtained a judgment, which was reversed by the Court of Appeals (133 N. Y. 366). It is important, therefore, to determine to what'extent, if at all, the facts established on the last trial differ from those appearing on the first.

At the place where Williams was killed the street runs east and west, and the railroad track north and south. Immediately before the accident deceased was coming easterly from some point west of the railroad track. From the opinion of Judge Guay (133 N. Y. 369) it appears that on the first trial the following facts appeared : Williams met two Germans 100 feet east of the railroad track, walking in an opposite direction, and said to them : “ Boys, look out for the engine ; maybe he will catch you.” One of them replied, “ I’m not afraid, my life is insured.” The deceased must have turned and retraced his steps, as the engineer on the locomotive, immediately afterwards, saw him standing ten or fifteen feet from the track; 'the train was then going at the rate of four miles an hour ; when the locomotive was about twenty-five feet from the crossing deceased walked- on to the track in front of the approaching cars, and, in the language of the witness, “ squatted down ” and received the injuries which caused his death; there was no evidence showing that the two Germans were intoxicated; they had gotten off the track when the engine came by, and deceased was not called upon to incur danger in their behalf.

' In his gpinion Judge Geay remarks: “ When seen just before the train struck him, he was, at first, standing away from the track •crossing, witli tbe train about twenty-five feet off, and tlien deliberately going upon tbe track, stopping and lowering bis body in front of tbe engine. Tbe men whom be bad met and addressed bad crossed and were away from tbe track. There was no evidence of tbeir coming back upon it, nor of any circumstance requiring tbe assured to change tbe position of safety in which be was, as tbe train was approaching tbe crossing.” It being urged by counsel for plaintiff that, as tbe evidence in tlie case was such as to negative tbe idea of any motive on tbe part of Williams to destroy bis life, and as, from tbe facts appearing, another motive might be inferred to account for bis actions at tbe time, the case was not one where tbe court could presume a suicidal intent, or impute negligence on tbe part of deceased, Judge Geay further says: Tbe argument would be unanswerable in a case where tbe facts were disputed and any at all existed from which an inference was possible that there was a reasonable or excusable cause for tbe occurrence. In tbe present case there is no dispute as to liow tbe accident occurred, nor as to tbe conduct of tbe deceased which permitted it.”

On tbe last trial a different state of facts was established — a state of facts which plaintiff claims justly entitled her to the judgment she obtained, under tbe opinion of Judge Geay above referred to.

Tbe witness Powers testified that be was eighty or ninety feet from tbe crossing at tbe time of tbe accident and saw deceased when be met tlie Germans. Instead of such meeting beiyg at a point 100 feet east of tbe track, it was at or a few feet from it. Tbe men were intoxicated, noisy and staggering from side to side of tbe street. As deceased met them at tbe track they all stopped a moment while Williams made some remark which tbe witness did not understand. Williams turned around, apparently motioned to the men to leave tbe track, and then seemingly endeavored to. escape himself, but slipped, and falling was struck by tbe engine. In tbe language of tbe witness, “ He saw tbe locomotive and started to get out of tbe way and fell. He slipped; be started to take a step, slipped down and fell.” Tbe witness’ account of tbe meeting of Williams and tbe two men, on bis cross-examination, which I quote from appellant’s points, was as follows: Mr. Williams, when they were within a foot of tbe railroad, was just across on tbe west side. He came across tbe railroad and met them as they were on tbe east side of tbe railroad track; be met them wben they were about a, foot from the railroad t/radc or on the trade. Tbe cars were tlien probably 30 or 40 feet below. * * * Electric lights were burning and tbe headlight shining and tbe bell ringing, but tbe Dutchmen and Mr. Williams stopped and talked with each other, and tbe cars kept coming. Williams didn’t go any further. The Dutchmen went on tbe track. They went on, but they didn’t go across. • Williams looked back and motioned them to get off. After the Dutchmen stepped off the track he turned to go off the track, turned southward and he saw the cars, and he whirled and started to run and get out of the way northwestward. He was on the track and turned to get out of the way, turned kind of southward, and it looked to me that he saw that the cars were so close to him that he could not get out of the way and turned northwest to go across. He was about half way across when he turned to go southward.”

As the evidence disclosed the fact that Williams was killed in consequence of being struck by a locomotive engine, under the contract of insurance plaintiff was entitled to recover unless defendant made it appear, or the evidence showed, that it was a case of suicide or voluntary exposure to unnecessary danger. It was for the defendant to establish this defense. Plaintiff was not compelled to show, as part of her affirmative case, that Williams did not commit suicide or did not voluntarily expose himself to unnecessary danger. (Van Valkenburgh v. Amer. Popular Life Ins. Co., 70 N. Y. 605; Jones v. The Brooklyn Life Ins. Co., 61 id. 79.)

I am of the opinion that the testimony of Powers and the other evidence in the case presented a question of fact on the issues raised by the pleadings for the jury to pass upon. The jury could have properly found from Powers’ testimony that deceased, meeting two drunken men on the railroad track, and in their condition exposed to the danger of being killed by the approaching locomotive, in the attempt to hasten them over the track, unconsciously stepped or remained on it, slipped down and was himself killed. It may be gathered from the evidence that had he not fallen he would not have been run over. He was trying to escape, as Powers testified, and the witness Myers said if he had continued to walk and had not sunk down on the track he could probably have escaped. The jury could well bave found that the death of Williams was the result of a mere accr dent, being occasioned by his slipping down in front of the approach' ing engine. Powers, in one part of his testimony, said deceased met the Germans from one to three feet east of the track; if so, while speaking to the two men and endeavoring to hasten them on their way, he might naturally and unconsciously take a step or two towards them. But the witness is not clear as to the exact location where they met. He said “ he met them when they were about a foot from the railroad track, or on the track” In any view of the case I cannot believe that it should be held as matter of law that deceased moved in front of the cars with a suicidal intent or in consequence of a voluntary exposure to unnecessary danger. Yoluntary is defined to mean “ done by design or intention; purposely; intentional; not accidental.” To show a voluntary exposure on the part of deceased, the evidence must have disclosed a design or intention on his part to expose his life, or a high degree of negligence; something more than mere ordinary negligence. As we have seen, the evidence of Powers allowed the jury to find that seeing two drunken men exposed to danger of being killed by the approaching engine, in the humane desire to save them he unconsciously remained or stepped on the track, slipped, fell and was run over.

It has been held in an action for damages against a railroad corporation, that where one had time, or had reason to believe he had, to cross a railroad track in front of an approaching train, and in crossing fell and was.injured, negligence would not be imputed to him as matter of law. (See Baxter v. Second Ave. R. R. Co., 30 How. 219; Belton v. Baxter et al., 58 N. Y. 411; Bernhard v. Rens. & Saratoga R. R. Co., 1 Abb. Ct. App. Dec. 131.)

So, Williams, as the jury could have found, had he not fallen,, would have had time to leave the track before the engine struck him, and hence, could not, as matter of law, be deemed to have been even negligent. Certainly, under the circumstances, the jury could properly determine that he should not be held to have been guilty of that degree of negligence which was equivalent to a voluntary exposure of his life to danger.

The law hesitates to impute negligence'to one who has exposed himself to danger for the purpose of saving life. (Tucker v. Mut. Ben. Life Co., 50 Hun, 50; 121 N. Y. 718; Eckert v. R. R. Co., 43 id. 502.) Deceased, if the witness Powers is to be credited, at tbe time of tlie accident, was engaged in a humane effort to save two drunken men from injury oir death. There is no reason to doubt that the men were in peril, or that Williams thought so. When the latter met them, the locomotive, going four miles an hour, or five feet per second (according to appellant’s computation), was thirty feet distant (as Powers testified), and required only six seconds to reach them. Men under the influence of liquor, staggering from side to side of the street, and on or quite near the track, with an engine only six seconds distant, could properly be deemed in a dangerous position. It should also be remembered that from the time Williams met the Germans until he was struck -was also only six seconds. He was compelled to act hastily and without time for reflection. These facts have an important bearing on the questions involved in the case. I think under the testimony the jury were justified in determining that the death of Williams was caused by accidental means; that. there was no evidence sufficient to establish the fact that he died in. consequence of a voluntary exposure to unnecessary danger. The evidence rather shows that his death was the result of the accident of his slipping down on the track when he was endeavoring to escape from the engine; that he had inadvertently stepped or remained on the track while endeavoring to save the two men from injury.

The jury was authorized to credit the evidence given by the witness Powers. lie was not impeached. Nothing in his testimony rendered his statement incredible; nor was the preponderance of contradictory evidence so great as to authorize the trial judge to withdraw his testimony from the consideration of the jury. His statement of the transaction was the more probable one, and the jury was justified in believing it. First. As to the two Germans being intoxicated. They admitted having come from a liquor saloon where they each drank three glasses of beer and had passed a jDortion of the afternoon before meeting Williams. The remark of Williams — Boys, look out for the engine; maybe he will catch you ” — to them, is not one that lie would probably have made to two sober men, strangers to him, but a natural' remark to men under the influence of liquor and exposed to danger from an approaching engine. Again, it was shown by two witnesses that when struck Williams gave a long, loud and shrill scream. Yolger, who was much nearer than these witnesses, did not hear the scream, and the other German testified to hearing a noise, but does not mention the cry of Williams when struck by the locomotive. If these men were sober, and within twenty or twenty-five feet of deceased when he was struck, it was strange that one or both should not have noticed a sound that attracted the attention of Galusha and Yan Doren, who were much further away. On the whole, it is extremely probable that Powers told the truth when he testified that the two men were intoxicated.

Again, the whole account of the transaction given by Powérs, in connection with other evidence in the case, was the more probable and reasonable one. Prom such account, and the other testimony, the following state of facts appeared: Williams was a man over sixty years of age, religious, of exemplary habits, of good character and cheerful disposition, and not in seriously embarrassed circumstances. ITe had left his home a short time before to make a business call west of the railroad track, and was returning when the accident occurred. In coming east he crossed the track, a locomotive was approaching, and he met two intoxicated Germans, staggering and noisy, and he made the remark to them above cpioted. The cars were almost upon them. Tie turned and motioned to them to cross and in so doing, doubtless, stepped on to the track. Turning to escape he slipped, and falling, was run over.

On the other hand, the theory of defendant, founded on the testimony of the two Germans and Myers, is that Williams, a man, as above described — religious, cheerful, of good character and exemplary habits — coming across the railroad track and meeting the two men, who were sober and presumably acting like sober men, 100 feet east of the track, said: “Boys,- look out for the engine; maybe he will catch you.” After he passed the two sober men he turned, followed them back to the railroad track, and then, in the language of Myers, squatted down ” on the track in front of the approaching locomotive. It seems to me that the jury was fully justified in believing the probable story of the transaction as related by Powers and in not believing the improbable and almost incredible statement of the two Germans.

I have not overlooked tbe testimony of the witness Myers, that the first he saw of Williams the latter was ten or fifteen feet from the track, and from that point walked directly in front of the locomotive. It was for the jury to determine whicli of the two witnesses, Powers or Myei-s, gave a correct statement of the transaction. If, however, Williams did, in his desire to hasten the two intoxicated men from a position which he thought dangerous, went back a few steps on to the track, that fact would not compel a reversal of the judgment. It did not show a voluntary exposure to unnecessary danger. As above suggested, the evidence indicates that when he went, or was on the track, he probably would have had time to move out of the way of the engine had he not slipped and fallen, and that his death was Caused by the accident of his fall.

It will not be doubted that in fact deceased accidentally fell, as Powers testified, instead of squatting down ” on the track, according to Myers’ statement.

The learned counsel for the appellant is not correct in his statement that four witnesses swore positively that Powers was not present at the time of the accident. The witnesses referred to simply testified that they did not see him there. It was shown that there was quite a crowd ” of people who gathered immediately after the accident, and the attention of the witnesses was not called to who were present.

It was clearly within the discretion of the court below whether or not to allow an amendment to the answer on the second trial of the case. Other questions were raised which I do not think necessary to discuss.

I conclude that the learned trial judge was justified in submitting the questions of fact involved in the case to the jury, and that the verdict was sustained by the evidence.

The judgment should be affirmed, with costs.

MayhaM, P. J., concurred.

Herrick, J.

(dissenting):

This case has already been before this court upon appeal, and will be found in 133 N. Y. 366.

The facts are so fully set forth there that a recital of them now I think is unnecessary, as, with the exception hereinafter stated, they appear to be substantially the -same as they appeared upon the former trial and hearing. .

Upon the second tidal a witness named Powers was sworn who was not called upon the former trial; his testimony, if true, relieves the deceased from any charge of suicide.

Upon the former trial the engineer testified that he saw Williams start to go upon the track; he says that if the man had kept on walking he could, in all probability, have crossed in safety, but that he “ squatted down,” as in the position of kneeling. Powers’ testimony is to the effect that, instead of deliberately squatting down or kneeling, Williams slipped down and fell.

It seems to me that constitutes the only substantial difference in the facts as they appeared upon the first trial and as they appear now.

Assuming Powers’ version to be the correct one, the question arises as to whether there was a sufficient conflict of evidence in the case to warrant its submission to a jury.

The theory of the plaintiff appears to be that Williams lost his life in an endeavor to warn or save two intoxicated persons from danger. The only one of the two persons declared by Powers to have been intoxicated, who was sworn upon the trial, swears that neither he nor his associate was intoxicated, and Powers only saw them at a distance of ninety feet or more on a misty evening. While none of the witnesses sworn knew anything about Powers’ presence, and while his testimony as to what took place is in conflict with that of all the other witnesses sworn upon the trial, yet it must be assumed that the jury found his version of the transaction to be the true one.

Por the purposes of disposing of this case as it now appears, it will be assumed that the deceased, instead of deliberately or voluntarily losing his life, lost it in an endeavor to save others from death or danger; although, as a matter of fact, the witness Powers says that the two persons Williams stopped to warn were not in danger, and the testimony of one of the persons who was so warned negatives any idea that they were in danger, and indicates that they wei’e fully as able to take care of themselves as was the deceased, and were equally aware of the perils of the place.

I do not think that exposure of oneself to danger for the purpose of saving the life of another is such a “ voluntary exposure to unnecessary danger,” etc., as to release the defendant from liability upon its policy. The law has so high a regard for human life that it will not impute negligence to any effort to preserve it, unless made under circumstances constituting rashness in the judgment of prudent persons. (Eckert v. L. I R. R. Co., 43 N. Y. 502.)

Efforts to save the lives of others are to be commended and encouraged, and not prohibited either by statute or contract, and dangers necessarily incurred in such efforts may be properly and rightly incurred, even under the terms of a policy like that issued by the defendant in this case; but the assured is not justified in doing unnecessary things or taking unnecessary risks to save the life or limbs of others.

And while the court will not attempt in cold blood to scrutinize too carefully acts done upon the spur of the moment in an endeavor to protect others, or measure acts of heroism by rule of thumb, still, when it appears that the assured has been injured, or lost his life by doing unnecessary or reckless things, it cannot justify him under the plea that they were done to save human life.

What was done by the deceased in this case does not appear to have been done in a hurry, or under any excitement, or under conditions where it might be inferred that he had become confused, and that, therefore, allowance should be made for his acts, as would be done in the case of one who suddenly finds himself in' danger, where the court will not scrutinize too carefully the measures that he takes to extricate himself therefrom, and will not hold him responsible, because, under such conditions he did not choose the best; here he saw the coming danger and attempted to warn others óf it; he did not hurry to do it, but did it quietly and deliberately.

The train did not come upon him suddenly and without his knowledge; it came with the ringing of bells, with the glare of the headlight upon the engine, and was seen by him ajiproacking; there was no occasion for him to get in the way, and there was ample time for him to get out of the way.

The account of the witness Dowers is not entirely clear, but any view that we may take of his testimony shows that the deceased was guilty of negligence, not to be justified by the plea of an endeavor to save others from danger. Assuming that they were in danger. what was done by the deceased which resulted in the sacrifice of his life was wholly unnecessary.

The witness Yolger, the only one of the persons warned by him who was sworn upon the trial, says that when lie first saw the deceased he was about 200 feet away. “We looked away ahead and saw him; then he was on the other side of the railroad; then he crossed the track and was coming towards us and we met him by Smith’s gate.” He says, “ Boys, look out for the cars; maybe the engine will catch you.” He says, “ Look out, boys, the engine will catch you.” August said, “ I am not afraid; my life is insured.” “ He stopped -when he said that, and we did too ; * * * nothing else was said there; he started east and we west.”

The witness, at another point, testifies that they went on across the railroad tracks; the cars were going slower and slower; the bell ringing and then they stopped; that they thought that something must be the matter; that they went to the place where the train had stopped and found the deceased injured upon the rails.

Powers’ version of what took place is, that he was going up the street which the railroad crosses when he saw two other men going up the street; that they were going westward; “ they got up near the Church street crossing and stopped; there was another man coming down, coming east, and they stepped on the railroad; as he stepped off, they stopped again, and he turned and said something to them, I don’t know what it was; then they stepped off and he followed them; he didn’t follow them, but just turned around, and as he turned around he stood there probably half a minute and all at once he looked down and motioned as though he was going to turn -around and he saw the locomotive and started to get out of the way and fell; he slipped; he started to take a step, slipped down and fell.”

Again, he says : “ The gentleman met these two men on the east side of the railroad track; I could not say how far from the east rail; it might have been three or four feet; it might not have been so far; that is as near as I can fix it; I should say I was distant from there in the neighborhood of eighty or ninety feet.” And, again, “ Mr. Williams, when they were within a foot of the railroad, was just across on the west side * * * of the track coming east; he came across the railroad and met them as they were on the east side of the railroad track; he met them when they were about a foot from the railroad track, or on the track.”

He further stated that at the time the deceased met the Dutchmen the cars were probably thirty qv forty feet south on the track going north; that the Dutchmen and the deceased stopped and talked with each other while the cars were coming up, or, as he explained it, they just turned around and spoke. He states that when Williams met these two men they were on the east side of the railrou. track, within a foot or two of the rail, the cars being forty feet fro, them; that the Dutchmen were going westward; that “after L.o Dutchmen stepped off the track he turned to go off the track, turned southward, and he saw the cars and he whirled and started to run and get out of the way.”

Taking this testimony, it would appear that the deceased, for the purpose of warning the two Dutchmen, so called, when he saw them near the railroad track, but not on it, himself stepped right on the track between the rails, when a train of cars was approaching, distant only thirty or forty feet from him, to warn them of their danger. It is true that the train was going at a slow rate of speed, estimated from four to six miles an hour, but if it was dangerous to them it. was dangerous to him.

For the purpose of warning them of their danger there was no occasion for him to step in front of an approaching engine and talk with them; it was not necessary for him to stop; it was not necessary for him even to cross the track for the purpose of warning, and if he had crossed the track, there was no occasion for his pausing to talk with men who were not upon it.

It does not present the case of a person prostrate upon the railroad track and the rescuer going thereon for the purpose of lifting or dragging him off. Here is a mere verbal warning being given, which could just as well have been given across the track as upon it, or in passing by across the railroad track without stopping.

While, as stated before, it is not well to hold too closely as to what is, or what is not, necessary to be done in an effort to save the life of another, still, what is alleged to have been done in this case was so wholly unnecessary and so grossly negligent that, even under a liberal construction as to the allowance to be made for efforts made by an assured in endeavoring- to save another from death or injury, I cannot bold that in tbis case be did not necessarily and negligently expose bimself to unnecessary danger witbin tbe meaning of tbe defendant’s policy issued to bim.

For these reasons I think tbe judgment should be reversed and a new trial granted, costs to abide tbe event.

Matham, P. J.:

I am inclined to bold that whether or not the assured “ unnecessarily and negligently exposed himself to unnecessary danger witbin tbe meaning of tbe policy ” was, under the circumstances of tbis case, a question of fact for the jury, with whose findings tbe appellate court should not interfere. Tbe deceased bad time to cross tbe track before tbe train reached bim, and there was evidence that be slipped and fell; tbis the jury might have found.

Judgment affirmed, with costs.