Volume 182 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment- against the. defendant railway company should be reversed, upon the ground that defendant .railway company had authority, as against plaintiff, to change the registry of the bonds in suit from plaintiff s name “to bearer.”.

<p>The facts, so far as material, are stated in the opinion.</p>

■ Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 15, 1903, in favor of defendant upon the submission of a controversy under section 1279 of the Code of Civil Procedure. The nature of the controversy and the facts, so far as material, are stated in the opinion.

This action is brought to recover, of the defendant the expense of paving between the tracks, the rails of the tracks and two feet outside of the tracks of the defendant’s railway, on North St. Paul street and Park avenue in the city of Rochester. The findings of fact were stipulated by the parties. On or about May 31st, 1862, the Rochester City & Brighton Railroad Company was incorporated under the provisions of the (General Railroad Act of 1850 (L. 1850, chap. 140).

<p>1. Murder—Sufficiency of Evidence—Corroboration of Accomplice— Corpus Delicti—Forgery-—New Trial.</p> <p>The evidence reviewed upon the trial of an indictment for murder charging the defendant with having effected the death of the deceased by means of poison administered by an accomplice; consisting of the latter’s testimony, which gave the details of the crime, charged that its commission was induced by the defendant, narrated circumstances tending to show that it was the result of a conspiracy between the defendant and himself to secure possession of the property of the deceased, evidenced by a will in favor of defendant and by various transfers to him of property, all purporting to have been executed by the deceased, but which in fact were forged by the defendant with the aid of his accomplice, such evidence also embracing facts and opinions, expert and lay, tending to corroborate such testimony, and held sufficient to warrant its submission to the jury, and the finding that the testimony of the accomplice was corroborated by proof of independent and material facts connecting the defendant with the crime; and as corroborated, justified the findings that the accomplice with the intent to kill administered chloroform to the deceased; that death resulted from the effects of the chloroform and from no other cause; that the defendant with the intent to procure the death of the deceased, aided, abetted, counseled, advised or procured such accomplice to kill him. The facts particularly considered were those relating: 1. To the corpus delicti; 2, to the corroboration of the testimony of the accomplice; 3, to the various forgeries involved. Also held, that the interests of justice do not demand the exercise in this case of the broad powers conferred by the State upon the Court of Appeals to reverse a judgment of conviction upon the facts and to grant a new trial. In the absence of legal error, therefore, affecting some substantial right of the defendant, a judgment entered upon a verdict convicting him of the crime of murder in the first degree, based upon such findings, must be affirmed.</p> <p>2. Basis fob Hypothetical Question.</p> <p>A hypothetical question to a medical expert assuming a congestion of the lungs “ that was not exactly co-extensive,” when the testimony shows that the congestion was co-extensive, is properly objected to and justifies the trial court in compelling the alteration of its phraseology.</p> <p>3. Hearsay.</p> <p>Where the issue was whether as part of the scheme to obtain possession of the property, a letter from the deceased to defendant requesting the cremation of his body had been forged, statements by the deceased to an intimate acquaintance who was called as a witness, expressing himself in conversation as in favor of cremation, have no relevancy to the question of the genuineness of the letter, and are properly excluded upon cross-examination.</p> <p>4. Competency of Attempt by Accomplice at Suicide Advised by De-</p> <p>FENDA-NT.</p> <p>Evidence of an attempt at suicide by the accomplice by means of a penknife, he having testified that the defendant had advised their jointly committing suicide, and had furnished him with a knife for the purpose, some months after the death of the deceased, while both were confined in prison under the charge of forgery, is competent: it tended at least to show the continuance of the conspiracy: to prove an attempt by the defendant to destroy proof of his guilt: and bore upon the credibility of the accomplice in testifying that the defendant had advised suicide and had furnished him with a knife for the purpose.</p> <p>6. Admissibility of Conversation at Interviews with Counsel.</p> <p>Permitting the accomplice to testify to conversations at interviews when he, the defendant, and counsel were together, do not constitute reversible error, when the relation of counsel was not shown to exist or the conversation was conducted between him and the defendant, so as not to be overheard by the counsel, or the objection to the testimony was too general; especially when the trial court excluded so much of the testimony as was offered to prove admissions on the part of the defendant.</p> <p>6. Waiver of Privilege as to Communications to Counsel.</p> <p>Where, upon the cross-examination of the accomplice, it was shown that he had made false statements to the district attorney concerning the death of tlie deceased, it is not erroneous to allow the prosecution to show that at a date prior to the statements he had told his counsel, who was also counsel for the defendant, that he had chloroformed the deceased, he being allowed to testify only to the fact that he had told the counsel of his own guilt; the fact that both had the same counsel did not prevent him from waiving the privilege accorded by the statute, and permit the extension of the defendant’s privilege so as to exclude his statement.</p> <p>7. Comparison of Handwritings.</p> <p>Where a clerk of the deceased’s bankers, who was familiar with his handwriting for many years, had been examined by the prosecution and had testified to the spuriousness of signatures of the deceased upon disputed instruments, and the defendant submitted to him certain signatures purporting to have been made by the deceased, which were visible only through slits or openings made in envelopes and he pronounced his opinion on them, and one of the signatures, which he pronounced genuine, had been written, inferentially, by an expert in handwriting, who was called as a witness, and was sliown the signature but without the envelope, but was not allowed to testify about it or to the effect that he had written it, the exclusion of the expert’s testimony, even if erroneous, must be regarded as of negligible importance, where a large amount of expert evidence was admitted upon the subject and the jury must have inferred from the questions that their purpose was to prove that the clerk had made a mistake in the comparison of signatures.</p> <p>8. Errors Not Affecting Defendant’s Substantial Eights, No Cause FOR BEVERSAL OF JUDGMENT OF CONVICTION.-CODE CR. PRO. SEO. 542.</p> <p>Conceding that some of the rulings of the trial judge were erroneous, they affect no substantial right of the defendant, and, under section 542 of the Code of Criminal Procedure, they must be regarded as technical and a judgment of conviction affirmed.</p> <p>9. New Trial Upon the Ground of Newly-Discovered Evidence.</p> <p>A motion for a new trial upon the ground of newly-discovered evidence upon allegations that complete immunity had been accorded to defendant’s accomplice; that two coroners’ physicians, who testified as medical experts concerning the autopsy, had stated to others thereafter that death resulted from old age and that no suspicious cause of death had been revealed; that they had been paid by the county for their services to the prosecution in preparing themselves as medical witnesses for the trial and that there was an intimate connection between the proponents of a will, which if the will alleged to have been forged was valid, was supplanted thereby, and the prosecution, is properly denied where the record shows nothing which if true is either entitled to be regarded as newly-discovered evidence, or if it might be so regarded went further than to affect the credibility of the witnesses. The trial judge denied the motion upon the ground that substantially all the matters and conditions claimed to have been newly discovered since the trial were within the knowledge of one or all of the counsel for the defendant from the inception of the criminal charge, and that the cross-examination of the witnesses for the prosecution indicated the possession of knowledge or that it could have been acquired by use of the opportunities afforded. Whether or not a new trial should be granted was a matter within his discretion, which was fairly exercised, and with which the Court of Appeals will not interfere.</p>

<p>1. Constitutional Law— Statute Authorizing Payment of Claims against Town for Damages for Change of Grade — L. 1903, Ch. 610. The fact that section 69 of chapter 686 of the Laws of 1892, authorizing towns to repair, grade and macadamize highways at the expense of the town, made no provision for the damages that property owners might sustain by change of grade or otherwise, does not render chapter 610 of the Laws of 1903, providing for the recovery of such damages from the town, unconstitutional; the latter act is in no sense a gift or gratuity of either the money or property of the town or a loan of its money or credit to an individual; the legislature had the power to provide for the payment of such damages in the original act and its subsequent enactment is simply a recognition of claims founded in equity and justice.</p> <p>. 2., Measure of Damages. The act authorizes no new or improper rule of damages; the recovery is limited to the actual amount of damages, measured by the principles prevailing in condemnation proceedings, deducting all benefits which are properly chargeable to the property by reason of the improvement of the highway.</p>

<p>Appeal from a judgment entered November 23, 1904, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which reversed a judgment of the Onondaga County Court rendered upon a verdict convicting the defendant of the crime of forgery in the second degree, and an order denying a motion, for a new trial and granted a new trial.</p> <p>The facts, so far as material, are stated in the opinion.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 12, 1904, which affirmed a judgment in favor of plaintiff entered upon an assessment of damages and from an order of said Appellate Division which affirmed an order of Special Term denying a motion to set aside such assessment of damages.

The facts, so far as material, are stated in the opinion. The rule that a deed of land fronting on a navigable stream conveys only to high-water mark applies only to a grant from the sovereign, to a private grant, where the grantor cannot prove that the title to the land below high-water mark is not still in the sovereign, and to particular instances where the circumstances raise the presumption that the grantor intended not to grant the land under water.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiffs have a right to maintain this action as the real parties in interest. (Reilly v. Poerschke, 19 Misc.

<p>Appeal from a judgment, entered January 10, 1905, upon an order of the Appellate Division of the Supreme Court in the first judicial department affirming a judgment of the Court of General Sessions of the Peace in the county of Hew York, rendered upon a verdict convicting the defendant of the crime of forgery in the third degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The facts, so far as material, are stated in the opinion. The order of Mr. Justice Howard was made without jurisdiction. (L. 1896, ch. 909, § 56; Matter of Mitchell, 81 Hun, 401; Matter of Emmet, 150 N. Y. 538; Freethy v. Freethy, 42 Barb. 641; Schultz v. Schultz, 89 N. Y. 644; Abbe v. Abbe, 22 App. Div. 483; People v. Butler, 3 Cow. 347; Moore v. Settle, 56 Am. Rep. 889; Dixon v. W. U. Tel. Co., 68 Fed. Rep. 634; Tea v. U. S., 22 Fed. Cas. 253; The City of Salem, 10 Fed.

The facts, so far as material, are stated in the opinion. ■ The legislative intent in the enactment of chapter 550 of the Laws of 1901 was to continue as theretofore the assessment of real estate as such to the bank, and to continue as theretofore to eliminate it from consideration as part of the capital stock, surplus and undivided profits of the bank in ascertaining their amount for the purpose of fixing the taxable value of the shares.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 2,1905, which affirmed a decree of the Sara-toga County Surrogate’s Court admitting to probate the will of Jane Davis, deceased.

the Supreme Court in the first judicial department, entered April 12, 1904, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 2, 1904, modifying and affirming as modified a judgment in favor’ of plaintiff entered upon a decision of the court on trial at Special Term. The motion was made upon the grounds that no proper notice of appeal had been served within the time required bylaw and no undertaking had been filed.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 21, 1904, which confirmed á determination of the defendant refusing to revise an assessment against the relator of a franchise tax for the year ending October 31, 1901.</p>

<p>1. Attempt to Commit Abortion.</p> <p>The evidence showed that the defendant was visited by two women detectives in the employ of the County Medical Society; that he was told, in effect, that one of the women wanted an abortion performed upon her; that he ultimately agreed to perform the abortion; that upon the appointed day he sent a nurse, who made all preparations for the intended operation; that he appeared at the time and place appointed with a satchel containing surgical instruments by which an operation could be accomplished; that the woman was about four or five months pregnant; that the defendant was paid $125 in marked bills; that he arranged his instruments, placed the woman upon an operating table, sterilized his hands and instruments and cleansed the woman’s person by means of a syringe; that he next took a speculum which was used for the purpose of enlarging the vagina and of enabling the operator to obtain a view of the womb. With this speculum in his hand he turned toward the woman, whereupon the signal was given and he was placed under arrest. Held, that the defendant was properly convicted of an attempt to commit abortion.</p> <p>2. Attempt—Penal Code, Section 34.</p> <p>The intent to commit a crime is not alone sufficient under section 34 of the Penal Code to justify a conviction; it must be accompanied by some overt act, or the crime is incomplete. The test is the condition of the actor’s mind and his conduct in the attempted consummation of his design.</p> <p>8. Attempt—Nature of Overt Act.</p> <p>In order to constitute an attempt, the overt act need not be the final one toward the completion of the offense and of such a character that, unless it had been interrupted, the offense itself would have been committed. But where the intent to commit the crime exists, an act done in the process of a consummation of the offense and of such a character that in the ordinary course the crime would have been consummated, had not the interruption intervened, is a sufficient overt act to justify a conviction for an attempt.</p> <p>4. Traps and Decoys.</p> <p>Where defendant claims that he was lured into the commission of overt acts, but the fact is that he was not a passive instrument in the hands of the entrapping parties but did the act with which he was charged voluntarily, with full knowledge of the subject and of the consequences which would flow therefrom, the setting of a trap by which he was caught is not a defense.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial, department, entered November 17, 1903, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 17, 1904, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at Special Term.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 16, 1905, affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

Appeal, by permission, from an. order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 3, 1905, which affirmed an order of Special Term granting a motion to amend a judgment, theretofore entered in the above-entitled action at a Trial Term at which the justice who granted the Special'Term order presided, by striking therefrom a clause making it a judgment on the merits and inserting instead the words “ ordered a nonsuit.” The…

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 14, 1904, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial.</p>