Volume 187 — New York Reports

<p>Mubder—Trial—Charge—Erroneous Instruction as to Degree—• When Erroneous Instruction as to Degree is Harmless.</p> <p>Where, upon the trial of an indictment for murder, the court has charged that in case the jury has reasonable doubt as to the defendant’s guilt of murder in the first degree its duty is to determine as to whether he was guilty of murder in the second degree and if' in doubt as to that degree, its duty is to acquit, a refusal to charge that it might convict of manslaughter in one of its degrees is erroneous, if there is any evidence bringing the case within' the-definition of manslaughter in the first degree. Such error, however, is harmless where the defendant is convicted of murder in the first degree, thus indicating that the jury had no doubt as to his guilt of the greater offense; therefore, the failure to instruct that it had the right to convict of manslaughter in the first degree,, a lesser degree than that of murder in the second degree, could not have prejudiced the defendant. i</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 20, 1905, reversing a judgment in. favor of plaintiffs entered upon a decision of the court on trial at Special Term and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in charging the jury that the special agents who testified in this case “must not in any sense be treated as detectives ” and that “ their testimony is entitled to the same weight as that of other disinterested witnesses.” (Gullinan v. Trolley Club, 65 App.

The facts, so far as material, are stated in the opinion. The evidence of conversations between the witness Flint and the defendant was incompetent as compelling the latter to he a witness against himself. (People v. Kemmler, 119 N. Y. 580; Const. N. Y. art. 1, § 6; People v. Mondon, 103 N. Y. 221.) The admission of such conversation as bearing upon defendant’s mental condition at the time of the homicide was irrelevant and improper.

<p>1. Corporations — Agreement Between Two Railroad Corporations Compromising Dispute as to Which Was Entitled to Saying in Interest Arising from Refunding Operations. In an action brought by minority stockholders of the New York and Harlem Railroad Company (the company upon request having declined to bring it) to have declared null and void a compromise agreement made' with the New York Central Railroad Company with respect to a division of the amount of interest saved by the refunding of the bonded indebtedness of the Harlem Company at a lower rate of interest, both parties having claimed to be entitled to the whole amount, it appeared that the dispute between the companies arose over the construction of the terms of a lease of the Harlem railroad to the Central Company; eminent counsel differed in their construction; a suit had been instituted by the Central Company and also by a stockholder of the Harlem Company to determine the questions involved; under these circumstances an amicable adjustment of the controversy was deemed advisable, and the directors of each of the contracting parties, a majority of whom were directors of both companies, entered into the agreement in question, substantially dividing the amount saved in interest between the two companies; the agreement was thereafter ratified by the stockholders. of both companies; notwithstanding the ratification the agreement was not executed by the Harlem Company until the Central Company upon demand had indemnified the former for its action; thereafter the Central Company discontinued its suit and secured a discontinuance of the stockholders’ suit by transferring certain stock to the plaintiff therein; it was affirmatively found that the dispute between the two companies was an honest one and was in good faith compromised and “ that there was no combination, conspiracy, and no fraud.” Held, that although by the terms of the original lease the Harlem Company was entitled, if it could procure the necessary funds-, to pay off the bonds and secure to itself any advantage in the reduction of interest arising from a new loan, that nevertheless the compromise agreement was binding on both parties thereto and concluded the rights of the plaintiffs.</p> <p>2. Compromise Agreement Voidable, Not Void. Assuming that the fact that the majority of the directors of the Harlem Company were directors of the Central Company rendered the agreement voidable at the election of the Harlem stockholders, it was not absolutely void, and having been ratified by them, became binding upon the company.</p> <p>3. When ■ Minority Stockholders Not Entitled to Maintain Action. The right to avoid the agreement, however, rested in-the Harlem Company, not in minority stockholders, unless the ratification thereof was dictated by fraud or was procured by concealment and in ignorance of the true state of the facts, which it was affirmatively found was not the case hero.</p> <p>4. Appeal—Stipulation as to Evidentiary Facts Does Not Enable Court op Appeals to Consider Findings Unanimously Affirmed. Whatever may be the force of a contention that the existence of issuable ' or traversable facts having been stipulated by the parties on the trial, the Court of Appeals is bound to accept and consider them, notwithstanding the findings have been unanimously affirmed by the Appellate Division it is not applicable to merely evidentiary facts, not necessary to allege or plead, but constituting only evidence from which the issuable or traversable facts can be determined, especially in a case where all the stipulated facts fail to establish fraud or misconduct on the part either of the directors or of the majority of stockholders.</p> <p>5. Action of Common Dibectobs of the Two Cobfobations. That the common directors of the two corporations asserted the rights of each, as the occasion required, is not a proper ground for criticism, that being the right thing to do.</p> <p>6. When Cibculab Alleged to Have Been Misleading Cannot Affect Result. A contention that a circular issued to stockholders calling the meeting to act on the proposed compromise agreement was misleading and insufficient is without force when not a single stockholder voting for the ratification has complained that he was misled or has sought to repudiate his action, where the controversy was of long duration and some public discussion and the plaintiffs at all times knew the exact situation.</p> <p>7. Settlement of Litigation Does Hot Establish Ebaud. A settlement by the Central Company of the Harlem stockholders’ suit and the exaction of indemnity by the Harlem Company, while showing that both companies were fearful of litigation, does not establish fraud.</p> <p>8. Sufficiency of Vote Ratifying Agbeement. Assuming that the compromise agreement was in effect a new lease to be executed with the same formalities and vote as in the case of the original lease, under chapter 433 of the Laws of 1893, the vote of the'Central Company’s stockholders was sufficient, two-thirds of the stock voted upon at the meeting being cast in favor of the lease.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 21, 1906, which affirmed an order of Special Term appointing a referee in the within proceeding. This is a special proceeding, brought by the state commissioner of excise, under section 28, subdivision 2, of the Liquor Tax Law, to obtain an order revoking and cancelling a liquor tax certificate issued to J. M. Liegeman & Company.

Upon a warrant issued by a city magistrate of the city of New York, charging him with the crime of grand larceny in the first degree, the relator was arrested by, and taken into the custody of, a police officer.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 16, 1906, affirming a judgment in favor of plaintiff entered upon an award of the Court of Claims.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

This action was brought by the executor of Elizabeth Thomas, deceased, to compel the defendant to account for certain moneys and property alleged to have been obtained by her from the testatrix by undue influence and fraud. The answer was in substance a general denial.

<p>(1) . Murder—Circumstantial Evidence.</p> <p>A defendant indicted for a homicide may he found guilty upon evidence which is wholly circumstantial, and where it appears, upon a review of such evidence, that the uncontradicted and unexplained facts and circumstances, proved upon the trial, not only establish the existence of a powerful motive for the commission of the crime by the defendant, but form so complete and strong a chain of evidence as to exclude, beyond a reasonable doubt, every hypothesis save that of defendant’s guilt, a verdict convicting him of murder in the first degree will be sustained.</p> <p>(2) . Trial—Cross Examination by Prosecution of its Own Witness.</p> <p>While it is the general rule that a party may not impeach his own witnesses, it is not erroneous for the trial court, in the exercise of his judicial discretion, to permit the district attorney, in examining hostile and unwilling witnesses for the prosecution— the wife and daughter of a defendant indicted for a homicide— to ply them with leading questions and even cross-examine them, in order that the whole of the truth may be elicited, especially where such witnesses contradicted none of their earlier statements tending to favor the defendant, but simply reiterated them.</p> <p>(3) . Indictment—When Denial of Motion to Dismiss Not Erroneous—Legality and Sufficiency of Evidence Upon Which Indictment Is Found—Code Crim. Pro. § 313.</p> <p>A motion to dismiss an indictment may be made in any case where it is claimed that the legal evidence received by a grand jury is insufficient to support an indictment, or that illegal evidence is the sole basis therefor, for this is a constitutional right notwithstanding the provisions of section 313 of the Code of Criminal Procedure to the contrary; and the right to make such a motion implies the right to have an adverse decision reviewed by the Court of Appeals upon an appeal from a judgment of conviction in a capital case; but where the moving affidavits are vague and unsatisfactory and the court’s attention is directed to no illegal evidence that was presented to the grand jury, and the general charge that the evidence was insufficient is supported by no direct or definite statements, a denial of the motion upon the grounds that the evidence was sufficient to sustain the indictment, and that none of the evidence was illegal, will be sustained.</p> <p>(4). Reception, by Grand Juey, of ti-ie Unsworn Testimony of Infants under Twelve Years of Age—When Examination as to Intelligence of Such Witnesses by Grand Jury Is Sufficient Compliance with Law—Code Grim. Peo. § 392.</p> <p>The fact that two of the witnesses, who were examined before the grand jury, were children under the age of twelve years, although they were neither sworn nor examined as to their intelligence, pursuant to the statute (Code Grim. Pro. § 392), by the justice who presided at the term during which the defendant was indicted, does not affect the validity of the indictment, where the justice, before whom a motion to dismiss was made, and who examined the minutes of the grand jury decided that there was sufficient other evidence to sustain the indictment; but where it appears from the affidavit of the district attorney, upon the motion to dismiss the indictment, that the statute was literally complied with in the examination of the children before and by the grand jury, such examination is a sufficient compliance with the statute, since a grand jury, although a part of the court with which it is convened, is a distinct body clothed with authority to conduct the examination of witnesses in any way that does not conflict with established legal rules; and, as the statute '(Code Grim. Pro. § 392) authorizing the unsworn testimony of children under twelve years of age is-not in derogation of any constitutional right of a citizen, the granl jury has the power to determine for itself the qualifications of such witnesses so long as there is due observance of the statutory safeguards enjoined upon other tribunals in similar circumstances.</p>

<p>Appeal from, an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 15, 1905, reversing a judgment in favor of plaintiff entered upon a decision' of the court on trial at Special Term and granting a new trial in an action to enforce specific performance of an alleged oral contract for services.</p>

<p>Appeal from an order of the Appellate Division of the Supreme -Court in the fourth judicial department, entered January 3, 1906, reversing a judgment in favor of plaintiffs .entéred upon the report of a referee, and granting a new trial in an action to recover for breach of contract.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 17,1906, Avhich affirmed an order of Special Term granting a motion to quash a writ of certiorari to review assess. ments for taxation for the year 1903 upon property of the relators.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 12, 1906, which .affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint in an action to rescind a contract for the sale of land. The following questions were certified : “First. Is there a defect of parties plaintiff? “ Second. Is there a misjoinder of parties plaintiff ? “ Third.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 19, 1906, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to the answer in an action to recover upon a surety bond.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 11, 1905, which reversed a judgment in favor of plaintiff entered upon a verdict directed by the court and an order denying a motion for a new trial, and granted a new trial in an action for conversion.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 30, 1906, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover for personal injuries alleged to have been received through defendánt’s negligence.</p>

<p>Appeal from an order of the Appellate Division-of the Supreme Court in the fourth judicial department, entered December 6, 1905, which reversed a decree of the Erie County Surrogate’s Court admitting to probate a paper propounded as the will of Chester Moore, deceased, and granted a new trial.</p>