Volume 161 — New York Reports

This action was brought by the plaintiff, in her representative capacity, to recover the statutory damages in cases of death caused by the wrongful act or neglect of another. It is alleged in the complaint, and the proof tended to show that some years prior to the year 1881 the defendant caused to be built across a private lot a dry stone sewer for the purpose of disposing of surface water.

<p>1. Motions for Rearguhent. It is not the usual practice of the Court of Appeals to permit rearguments for the purpose of correcting some error in the reasoning of the court as expressed in the opinion, when it is admitted that the decision itself is correct.</p> <p>2. Forfeiture of Liquor Tax Certificate. The question whether a forfeiture of a liquor tax certificate can only follow a criminal conviction, discussed in opinion reported 160 N. Y. 96, is open for further discussion whenever it shall he necessary to the disposition of an actual controversy; and, in such case, the court will not regard itself concluded by what is stated in that opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinions. The doctrine which seems to be invoked, that in franchises of this character the grantee gets nothing whatever by implicatian, is not sustained by authority and is contrary to the fact.

This action was brought for the purpose of restraining the defendants.from interfering with the plaintiff and preventing its supplying water to the trustees of the village of Warsaw for fire protection, and to its patrons for domestic or power purposes, and from soliciting any of its patrons to take water from a system of water works constructed by the defendants, and from imposing or threatening to impose any discriminating taxes upon the owners of property abutting on the…

The facts, so far as material, are stated in the opinions. The society is not a “ charitable ” institution within the meaning of the Constitution and laws. The true character of a corporation must necessarily be determined by its charter. (N. Y. F. Ins. Co. v. Ely, 2 Cow. 678; Jemison v. C. S. Bank, 122 N. Y. 135; People ex rel. v. U. Ins. Co., 15 Johns., 357; Brisay v. Star Co., 13 Misc. Rep. 349; 7 Am. & Eng.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 15, 1898, unanimously affirming a judgment entered upon a verdict in favor of the plaintiff.

<p>1. Homicide—Deliberation.</p> <p>If there be sufficient deliberation to form a design to take life, and to-put that design into execution by destroying life, there is sufficient deliberation to constitute murder, no matter whether the design be formed at the instant of striking the fatal blow, or whether it be contemplated for months.</p> <p>2. Same—Motive.</p> <p>It is not necessary to - look for a motive where the crime is plainly-proved.</p> <p>3. Same.</p> <p>Where the evidence is circumstantial only, the subject of motive is more important, but, when it clearly shows that the fatal act was committed willfully by the defendant, the nature of his motive is unimportant.</p> <p>4. Criminal law—Insanity.</p> <p>A person is not excused from criminal liability on account of insanity, except upon proof that at the time of doing the alleged criminal act he was laboring under such a defect of reason as either not to know the nature and quality of the act he was doing, or not.to know that the act was wrong.</p> <p>5. Same.</p> <p>If capable of distinguishing between right and wrong in the particular act done by him, he is justly liable to be punished as a criminal.</p> <p>6. Same.</p> <p>If the defendant was laboring under a delusion, there must be a connection between the alleged delusion and the homicide.</p> <p>7. Same—Question of fact.</p> <p>Whether the evidence of the physicians was entitled to greater weight than any other evidence was not a question of law, but a question of fact.</p>

<p>Appeal from an order of the appellate division, affirming a judgment dismissing the indictment on demurrer.</p>

This action was brought to recover damages for a breach of contract. On the third day of March, 1893, the engineering company entered into a written contract with the Interstate Steamboat Company, by which the former agreed to build and complete for the latter a steamboat of the character, dimensions and speed therein provided, and to deliver the same at a time and place provided in the contract.

<p>1. Homicide—Deliberation.</p> <p>Conflicting evidence as to deliberation and premeditation on a trial for murder, held sufficient to warrant the submission of the case to the jury and to sustain their verdict, objected to as against the weight of evidence.</p> <p>2. Evidence—Conclusion.</p> <p>An expert for the prosecution, on a trial for murder, who, in reply to a competent question, stated an incompetent conclusion, may be cross-examined with reference thereto. The defendant should not be obliged to resort to a motion to strike out, or to a request for an instruction to disregard.</p> <p>3. Criminal law—Charge.</p> <p>In commenting upon the testimony of a witness as to an alleged confession by defendant, it is reversible error for the trial court on a trial for murder, to state that some one must have told the witness how the killing occurred, as he could not have divined it, where it is not impos sible that the witness invented the story, adapting it to the facts generally known to himself.</p> <p>4. Same—Technical errors.</p> <p>The court of appeals is required to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.</p>

<p>Application by counsel assigned to defend an appeal in a capital case for compensation.</p>

August 20th, 1894, a petition bearing date August 15th, praying for the paving of Liberty street, in the city of Syracuse, “ with vitrified paving brick, maufactured by The New York Brick & Paving Company of Syracuse, N. Y.,” and signed by the requisite number of owners of property abutting on said street, was presented to the common council of the city of Syracuse and by it was referred to the highway committee ; the highway committee reported favorably about September…

The nature of the action and the facts, so far as material, are stated in the opinion. To sustain the judgment of reversal it must be shown that upon the decision made hy the referee upon the facts the legal conclusion did not follow that the defendant was entitled to a dismissal of the complaint. (Amherst College v. Ritch, 151 N. Y. 282; Bomeisler v. Forster, 154 N. Y. 229; Code Civ.

entered upon a verdict, and also affirming an order denying a motion to set aside the verdict and for a new trial. This action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendants. The facts, so far as material, are stated in the opinion.

<p>1. Negligence. Assuming, without deciding, that a railroad corporation, although negligent in using a building for a railroad station which was unsafe, owes no duty to one who is there as a mere licensee except to refrain from doing any affirmative act which would injure him, the principle is not violated by a recovery in an action against the corporation to recover damages for the death of a boy who"was killed by a sudden collapse of the building where the complaint alleges that the deceased was lawfully in the station, and the unc.ontradicted evidence shows that he went there to meet a passenger, and the defendant fails to make any request to charge as to the purpose for which he was there, and the whole case was submitted to the jury with the instruction that if the deceased was guilty of any negligence there could be no recovery.</p> <p>2. Exception to Portion of Charge. Where, upon such a state of facts, the trial court has charged properly as to contributory negligence, and the defendant has made no request for any charge whatever, it will not be permitted to select a portion of the charge in which the trial justice, after describing the general duty imposed on one who constructs a public building of making it safe against storms likely to occur, added, “ That was the duty in this case with reference to this defendant,” and claim thereunder that the court thereby instructed the jury that the defendant owed such duty to the deceised, whether he was lawfully in the station at the time of its collapse or not.</p>

The facts, so far as material, are stated in the opinion. The respondent has no right to exclude relator’s .children from the common schools on account of their color. (L. 1897, ch. 378, §§ 1056, 1094; L. 1884, ch. 248; People v. King, 110 N. Y. 418; Penal Code, § 383; L. 1894, ch. 671; Const. N. Y. art. 9, § 1.) The school board had the power to organize a separate school for the instruction of children of African descent and to assign thereto the children of the relator.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, dated October 3, 1899, overruling defendants’ exceptions to a decision of the Special Term and fo an interlocutory judgment entered thereon, and denying a motion for a new trial, in an action for the partition of real and personal property belonging to the estate of Isaac I. Blauvelt, deceased. The questions certified were as follows : ■First.

Appeals from judgments of the Appellate Division of the Supreme Court in the first judicial department, entered May 24-, 1897, affirming judgments in favor of the respectiv e plaintiffs, entered upon decisions of the court on trial at Special Term.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 6, 1899, which reversed an order of the Special Term, directing the issuance of a peremptory writ of mandamus, and denied the motion for such writ.</p>

Division of the Supreme Court in the fourth judicial department, entered March 23, 1899, reversing a judgment in favor of defendant entered upon a dismissal of the complaint at a Trial Term, and an order denying a motion for a new trial, and granting a new trial.