Volume 92 — New York Supreme Court Reports

<p>Appeal — when dismissed.</p> <p>No appeal lies from an order sustaining a demurrer. Tlie appeal should he taken from the interlocutory judgment.</p>

Appeal by the defendant, The Wallis Iron Works, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 15th day of October, 1894, upon the decision of the court rendered after a trial at the New York Special Term adjudging the amount due on the plaintiffs’ mechanic’s lien and directing the payment thereof.

<p>Review of a conviction by the police commissioners of New York —judicial notice of aaute memory — corroboration of immoral witnesses’ evidence — cross-examination as to their reformation — -conviction of an infamous crime —not sustained by evidence of neglect of duty.</p> <p>In determining the question as to whether a conviction by the police commissioners of the city of New York should be sustained or not, entirely correct and accurate rulings in regard to questions of evidence will not be required; the appellate court should determine from the record whether it discloses reasonable grounds for the conclusion arrived at, and one which has not been the result of the erroneous rulings in respect to the admission or exclusion of evidence.</p> <p>Courts will take judicial notice of the fact that persons engaged in business, who cannot read and write, have their faculty of memory more acutely educated, for the reason that they are compelled to depend upon their memory and cannot rely upon written memoranda.</p> <p>Much of the evidence upon which reliance must be placed, if crime is to be punished, comes from polluted sources. Crime is not ordinarily committed with respectable and reputable witnesses looking on who can testify to facts, but it has its birth largely in secret and amongst the disreputable, and the fact of its commission must be established, if at all, by proof taken from this class of the community. Such fact, while it necessitates a closer examination of the evidence and some corroboration of the witnesses, either from the nature of their testimony given or by the testimony of other witnesses, presents no reason for allowing crime to go unpunished.</p> <p>If the story of a witness who is a disreputable person is of such a character and so consistent in its details and harmonizes so well with the surrounding circumstances as to carry conviction, even where there is no corroborating testimony, it may afford satisfactory proof of guilt, but where such evidence is not consistent, abounds in contradictions and shows a disregard of the truth, it cannot form the basis of a judgment establishing crime.</p> <p>Where, upon the trial of a member of the police force, before the police commissioners of the city of New York, witnesses on the part of the prosecution testified voluntarily to their disgrace, the accused member of such police force has the right to test the truth of their claim of reformation, and if he is not permitted such right, in order that it may be said that he has suffered no harm because of the refusal to allow him such right, the evidence of his guilt must be of a very satisfactory character.</p> <p>If, 'upon the review of the determination of the police commissioners of the city of New York, dismissing a member of the police force of such city, it seems to be probable that the charges for which the member of such force was dismissed related to the receiving of certain alleged bribes, and were not sustained by the evidence, the mere fact that a finding of neglect of duty on the part of such officer might be sustained upon the evidence will not prevent a reversal of the judgment of the police commissioners convicting the officer of an infamous crime. •</p>

Certiorari issued out of the Supreme Court and attested on tbe 6th day of September, 1894, directed to James J. Martin, John C. Sheehan, Charles H. Murray and Michael Kerwin, as police commissioners of the city of New York, constituting the board, of police of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their acts, proceedings, and documents in relation to the…

<p>Will- — life interest in bonds — “premium,,’’ not covered, by “profits."</p> <p>The will of J ohn Biden gave to his wife during the period she should remain his widow “ the interest, income and profits of the sum of six thousand dollars, which interest or income shall be payable to her at the times the same accrues on the investment of said six thousand dollars.” In a subsequent provision of his will the testator directed as follows: “My executors shall keep invested safely and securely the said six thousand dollars in good approved securities as long as my wife shall be entitled to the interest thereof.”</p> <p>The executors invested the sum. in bonds which, upon the death of the wife, were sold at a considerable advance over the sum paid therefor, and this premium was claimed by her executors as assets of her estate.</p> <p>Held, that the words “interest, income and profits” were tautological, and that it was not the intention of the testator that an accretion to the fund resulting from natural causes should become a part of his wife’s estate;</p> <p>That under a proper construction of the clauses given above, the use of the word “profits” did not carry with it a premium, the amount of which was uncertain and materially dependent upon the length of time the widow lived.</p>