Volume 190 — New York Reports

<p>Forgery—Uttering Check with Forged Idorsehent.</p> <p>Where the only question of fact contested upon the trial of a defendant charged with uttering a check payable to a firm, knowing that the indorsement of the firm name was forged, was whether the person, who wrote the name of the firm on the back of the check, had authority from one of the firm to make such indorsement, it is not error for the trial court, referring to the signature on the back of the check, to ask the member of the firm, who, as the defendant claimed, had authorized the indorsement, the question, “ Was it ever authorized to be signed by your firm? ” where no objection whatever was taken to the question until it was answered in the negative and then only upon the ground that the question was asked by the court and not by the district attorney; even if the question and answer had been objected to as calling for hearsay evidence, the defendant would not have been prejudiced by the admission thereof where it conclusively appears that the defendant did not claim that the indorsement was authorized by the firm except through the witness who was asked the question.</p>

The object of this action was to secure a judicial determination that a portion of the river front in the city of Buffalo is a public street and to compel the defendant to remove certain obstructions therefrom. The main issue raised by the answer was whether the locus in quo, called Front street, was a public street when the action was commenced.

<p>Murder—Reasonable Doubt.</p> <p>Upon the trial of aneindictment for murder in the first degree, in which the death of the deceased was established by direct evidence, and in which the issues were whether the wound was inflicted intentionally by the defendant or by accident, and if by his hand, whether it was in self-defense, a refuse to charge, upon the ground that the word “ reasonable ” was omitted, “ that unless the evidence on both sides as a whole excludes every hypothesis except that of guilt, the defendant may be acquitted,” is not erroneous. 1. Because the request called for an absolute certainty, in the exclusion of any hypothesis except that of guilt, while the law requires only a reasonable and moral certainty. 2. Even in a case depending wholly upon circumstantial evidence the request was improper, and in this case was inappropriate to the facts proved.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division was wrong in affirming the judgment upon the ground that the plaintiff was not shown to have been a passenger. (Raphael v. Margolies, 42 Misc. Rep. 204; Wilson v. Rocke, 58 N. Y. 642; Fox v. N. Y. C. & H. R. R. R. Co., 95 App.

<p>1. Constitutional Law — Eminent Domain — Owner of Land Taken for Public Use Entitled to Full Value of Land Without Deduction for Benefits — New York City Water Front. The provisions of section 833 of the charter of the city of New York (L. 1901, ch. 466) relating to the acquisition of lands for the improvement of the water front and authorizing the setting oil of benefits against an award for land to be taken therefor must Le regarded solely as an exercise of the power of eminent domain and are unconstitutional (Const, art. 1, § 6); since the full value of the land taken, in money alone, without any deduction for benefits which may result from such use, is the measure of that just compensation guaranteed the owner by the Constitution and especially where, as in this case, the city acquires the fee and is under no obligation to continue the public use for which the land was taken.</p> <p>3. Power of Legislature to Set Off Benefits Against an Award as a Tax in Local Assessment — U. S. Const. Fourteenth Amf.ndment. Assuming that such provisions may be regarded as an exercise of the taxing power of the legislature and not of the power of eminent domain, the power to tax is not unqualified and unlimited; if they are arbitrary and unreasonable in their operation, they are violative o£ the fourteenth amendment to the Federal Constitution and void; while the legislature under its taxing powers may impose the cost of an improvement in whole or in part upon the owners of property specially benefited thereby, all owners must be treated alike; where, as in this case, it arbitrarily selects one or more and exempts the others, depending upon accidental circumstances which have no just relation to the liability or immunity of the parties, its act is void.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in its repeated charge to the jury that defendant was under the duty to use every precaution that human skill and foresight could provide or suggest to protect plaintiff against coming in contact with this south-bound car.' (McGrell v. B. O. B. Co., 153 N. Y. 265 ; Miller v. O. S. S. Co., 118 N. Y. 199 ; Stierle v. U. By.

The nature of the action and the facts, so far as material, are stated in the opinion. As a matter of law, the plaintiff Zeccardi terminated his contract relation as a passenger when he left the street car. (Platt v. F. S. St., etc., R. Co., 4 T. & C. 406; 2 Hun, 124; McKay v. Hudson River Line, 56 App. Div. 201; Reilly v. N. Y. City Ry. Co., 91 N. Y. Supp. 319 ; 3 Thomp. on Neg. 624, § 3186; Creamer v. W. E. Ry. Co., 156 Mass. 320; Duchemin v. B. El. Ry.

<p>Robbery Aided by an Accomplice—Acquittal of Accomplice Necessarily Acquits Principal.</p> <p>Where under subdivision 2 of section 228 of the Penal Code, defining robbery in the first degree as committed by a person, “ being aided by an accomplice actually present,” an indictment charges the crime as committed, by two persons each alleged to have been the accomplice of the other, and one is acquitted, a judgment entered upon a verdict finding the other “ guilty as charged ” must be reversed, since the evidence if insufficient to convict one must also have been insufficient to convict the other.</p>

Appeal froili an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 19, 1906, which reversed a judgment in favor of plaintiff entered upon a verdict directed by the court and granted a new trial in an action to recover possession of a bank book issued to plaintiff’s intestate.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 20, 1906, which reversed a judgment of Special Term dismissing the counterclaim of the respondent herein and granted a new trial in an action to foreclose a mechanic’s lien.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 5, 1906, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial in an action to recover for personal injuries alleged to have been caused through defendant’s negligence.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 24,1906, which reversed a judgment in favor of-defendants entered upon a dismissal of the complaint by the court at a Trial Term and an order denying a motion for a new trial and granted a new trial in an action to recover for an alleged breach of contract.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 8, 1905, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial in an action to recover for personal injuries alleged to have been caused through defendant’s negligence.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 9, 1907, which modified and affirmed as modified a decree of the Sullivan County Surrogate’s Court settling the accounts of William D. Tyndall, as general guardian of Eston E. Devore, an infant.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 19, 1907, which reversed a judgment of Special Term sustaining defendant’s demurrer to the reply and dismissing the complaint and overruled such demurrer. The following question was certified: “Are the plaintiff's several replies to the affirmative defenses set out in the defendant’s answer sufficient in law upon the face thereof % ”

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 15, 1905, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial, and granted a new trial in an action to recover for the alleged negligence of the defendant’s highway commissioner in allowing a sluiceway to become clogged, whereby surface water flowed on to plaintiff’s land.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered</p> <p>December 28, 1906, reversing a judgment in favor of defendant entered upon the report of a referee in an action to recover rent alleged to be due.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 23, 1907, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term in an action to compel the specific performance of an oral contract alleged to have been made by defendant’s intestate with the plaintiff.</p>