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arates into two channels, which are separated by an island. Between
the two towns a bridge has for many years existed from the town of
Easton to this island, and extending therefrom to the town of Sara-
toga. Under the Barge Canal Act the eastern channel of the Hudson
at this place was appropriated for the Barge Canal. The facts ma-
terial to the questions here raised are recited in the findings of fact
27 to 37, inclusive.

"(27) That said alterations consisted of removing four piers and five spans
of said bridge, leaving four spans remaining, of which three were on the
Easton side and one on the island side of said bridge; two new piers, one
on each side of said Barge Canal channel, and which were about four feet
higher than the picrs that were removed, were built; a steel span was built
from one new pier to the other, which covered the length of three of the re-
moved trusses and a part of the length of each of two other trusses; the
spans on both ends of and next to the steel span were removed, and in place
thereof spans on an incline and made of used timbers were inserted; the re-
maining spans were raised, so that on both sides of said steel span the bridge
was on a grade from the abutments on the shores to said steel span.

"(28) That the raising of said portions of said bridge was done by jacking up the ends of the trusses one at a time and putting blocking under them.

"(29) That the raising of said portions of said bridge in said manner caused the said portions of said bridge to be badly warped out of shape, and strained and weakened said bridge, and caused the same to be badly out of alignment.

"(30) That the grade of said portions of said bridge was about 5 per cent.

“(31) That when the wooden trusses were raised to obtain the slope to the steel span, some of the piers were built up with wooden blocking, and not with masonry, and such construction was insecure and unsafe.

"(32) That said grade or slope created an unequal stress and weakened said bridge.

"(33) That after the completion of said alterations the said bridge over said east channel was by reason of said alterations never suitable or safe for public use.

"(34) That after the completion of said alterations neither said bridge, nor
the wooden parts thereof wholly built by the contractors to replace portions
of the bridge removed by them, were capable of carrying with safety over
212 tons.

“(35) That after the completion of said alterations, and on the 10th day of
March, 1913, said bridge was inspected by Resident Engineer Holmes, who re-
ported to the state commission of highways that said bridge was in a very
unsafe condition, whereupon, and on the 2d day of May, 1913, said bridge was
condemned by the said commission,

"(36) That after the completion of said alterations, and before the con-
demnation of said bridge by the state commission of highways, a needle beam
of the sloping span, which was wholly constructed by said contractors to re-
place portions of the bridge removed just east of the steel span, broke while
a load of gravel weighing about 3,000 pounds was being drawn over it.

"(37) That after the completion of said alterations one of the beams in the sloping part of the said bridge between said steel span and said island, which had been wholly constructed by the contractors to replace portions of the bridge removed by them, broke when a load of irons was being drawn over it."

The judgment appealed from directs the defendants constituting the canal board “to complete the building of such new bridge.” From this judgment the canal board and its constituent members appeal.

[1] It is first urged that the court is without jurisdiction to sustain this action because of lack of consent of the state to be thus sued. But the state is not being sued. These officers of the state are required by the court simply to execute the direction of the statute to build new bridges wherever the same may be required. Of such actions the court

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frequently takes cognizance, and these officers might have been manda. mused to perform their duty. We have no doubt of the jurisdiction of the court to entertain either a writ of mandamus or an action for a mandatory injunction—the action here under consideration. Rolston v. Missouri Fund Commissioners, 120 U. S. 390, 7 Sup. Ct. 599, 30 L. Ed. 721.

The sole remaining question is one of fact, whether the bridge has been substantially restored to its former condition of safety and endurance. The court has found that it has not.

We are of opinion that the evidence sustains the conclusion reached by the trial judge and that the judgment should be affirmed.

[2] There is one finding of fact, however, which probably is to an extent interpretative of this judgment, to which we cannot fully agree. The forty-third finding of fact is as follows:

"(43) That a safe, suitable, and proper bridge between said town of Easton and said island would be one that conformed for its entire length, in elevation, style, material, and construction, with said steel spans."

This requirement, in my judgment, exceeds that of the statute. The canal board is not directed as to the material to be used in the construction of a bridge, or to the effect that uniformity must exist therein throughout the whole length of the bridge. The general principle, however, of reasonable adaptation to the use required, would require approaches to the bridge to be made reasonably safe and secure, and probably not less secure than were the approaches to the bridge before interference therewith by the state. I have no doubt that these approaches could be built of wood or other material which would make them substantially safe, and that with such construction the statutory obligations would be fulfilled.

The judgment should therefore be affirmed, with costs. All concur; HOWARD, J., in result, in memorandum.

HOWARD, J. I concur in the result, but not in the rejection of the forty-third finding of fact. I believe that a reasonable interpretation of the law requires uniformity throughout the whole length of new bridges constructed by the state when old ones are razed. The state has no right to generate monstrosities or to breed architectural cripples. It has no right to erect unsymmetrical, unsightly, misshapen structures in the municipalities of the commonwealth, to become blemishes on the landscape, eyesores to the inhabitants.

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(166 App. Div. 358)

FARLEY, State Excise Com'r, v. PATTERSON et al. (No. 31/49.)
(Supreme Court, Appellate Division, Third Department. March 3, 1915.)
1. JUDGMENT Om 648-LIQUOR TAX BOND-ACTION ON BOND-EFFECT OF CON.

VICTION.

In suit on a liquor tax bond for breach of condition that the principal
would not violate the Liquor Tax Law, a judgment of conviction of the
principal for a violation of such law was conclusive between the people
and the principal as to breach of condition.

(Ed. Note.-For other cases, see Judgment, Cent. Dig. $S 1309, 1310;
Dec. Dig. Om 648.)
2. JUDGMENT OM 648 — EFFECT OF JUDGMENT OF ACQUITTAL IN CRIMINAL
PROSECUTION.

An acquittal in a criminal action is not admissible in evidence against
the people in a civil suit against the defendant, as on a liquor tax bond,
because of the different degrees of proof required; an acquittal serving
merely to show that guilt was not established beyond a reasonable doubt,
the question in a civil action being only of a preponderance of evidence.

[Ed. Note. For other cases, see Judgment, Cent. Dig. 88 1309, 1310;
Dec. Dig. 648.]
3. INTOXICATING LIQUORS Omw88/LICENSES/ACTION ON DEALER'S BOND

REPRESENTATIVE CAPACITY OF COMMISSIONER OF EXCISE.

In suing for the penalty of a liquor tax bond, the state commissioner
of excise acts in a representative capacity for the people, and evidence
admissible for or against them is admissible for or against him.

[Ed. Note.--For other cases, see Intoxicating Liquors, Cent. Dig. $$ 91

95; Dec, Dig. Om 88.]
4. I'RINCIPAL AND SURETY Ow145--ACTION ON LIQUOR DEALER'S BOND-CON-
VICTION OF PRINCIPAL-EVIDENCE AGAINST SURETY.

In a suit on a liquor tax bond for breach of condition that the princi-
pal would not violate the Liquor Tax Law, a conviction of the principal
for violating the law was not admissible in evidence against the surety
on the bond, since the surety was not a party to such judgment.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. 88
397-401; Dec. Dig. Om145.]
Appeal from Trial Term, Schenectady County.

Action to recover the penalty of a liquor tax bond by William W.
Farley, State Commissioner of Excise, against James F. Patterson
and the National Surety Company. Judgment for plaintiff, and de-
fendants appeal. Affirmed as to Patterson; reversed and remanded
as to the National Surety Company.

Argued before SMITH, P. J., and KELLOGG, LYON, HOW-
ARD, and WOODWARD, JJ.

James A. Quinn, of Albany, for appellant Patterson.
Lucius A. Waldo, of New York City, for appellant Surety Company.

A. M. Sperry, of Albany (Louis M. King, of Albany, of counsel), for
respondent.

JOHN M. KELLOGG, J. This action is brought against the prin-
cipal and his surety to recover the penalty of a liquor tax bond for
breach of the condition that the principal will not violate any of the
provisions of that law. The bond provided that an action for its
breach might be brought without any previous conviction or prosecu-
am For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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tion of the principal. The only evidence tending to show a breach of the bond was a judgment convicting the defendant Patterson of a violation of the Liquor Tax Law. The defendants severally objected that said conviction was not evidence against them, and severally moved for a dismissal of the complaint upon the ground that there was no legal evidence of a breach of the bond.

At the close of the case the court asked if the defendant rested. The surety company replied that it did not know; it desired to discuss whether the judgment might not be some evidence, and that it might want to put in evidence. The court replied that it was evidence against the principal, and if the surety company's motion to dismiss was not granted it could put in proof if it so desired. The court, however, directed judgment against both defendants, and we infer must have held that the judgment of conviction was conclusive evidence of the breach of the bond; the surety company having been accorded no privilege of introducing evidence upon that subject.

[1,2] A judgment of conviction is not evidence against the defendant in an action between him and a third person, as such person is a stranger to it. But it conclusively establishes between the people and the person convicted that he committed the offense. The nature of the action is immaterial. The question is whether the same matter has been litigated and decided between the same parties. If so, it is unnecessary that it again be litigated and decided. It is true that a judgment of acquittal is not evidence against the people in a civil action, for the reason that in a civil action a preponderance of evidence may sustain a judgment, while in a criminal action guilt must be proved beyond a reasonable doubt. The acquittal shows only that the guilt of the defendant was not established beyond a reasonable doubt.

[3] The bond in question runs to the people of the state of New York, while the commissioner of excise is permitted to bring an action upon it for the benefit of the people and certain tax districts of the state. He brings the action and seeks a recovery as a representative of the people, deriving whatever cause of action he has from the people. It is unnecessary therefore, to try the question again as between the people and the defendant Patterson, or between a representative of the people seeking to recover upon an obligation issued to the people.

As to the surety company another question arises. It was not a party to the criminal action, and under the law was not permitted to intervene or defend. It was therefore a stranger to it, not bound by the result. It is urged, however, that as surety upon Patterson's bond it was bound by the judgment of conviction entered against him. The question has been much discussed in the cases and text-books as to how far a surety is bound by a judgment against his principal.

In Berry v. Schaad, 50 App. Div. 132, 63 N. Y. Supp. 349, the Fourth Department unanimously determined that, in a case where it was unnecessary to sue the principal before suing the surety, a judgment against the surety, in the absence of notice requiring him to defend, was not prima facie or conclusive evidence against him. In Mulry v. Eckerson, 149 App. Div. 29, 133 N. Y. Supp. 533, the First Department unanimously held that, in the absence of notice and an opportunity to defend, such judgment was not evidence against the

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surety. In Riche v. Greenwich Bank, 153 App. Div. 425, 138 N. Y.
Supp. 432, the Second Department unanimously determined that, al-
though the surety had notice but did not defend, such judgment was
not evidence against him in cases where the bond was not given to
indemnify the principal, but was given to indemnify others against
the default of the principal. This bond was not given to indemnify
Patterson, but to indemnify the people against his wrongful act.

In many cases, by the terms of the bond, the surety becomes liable
to indemnify against or pay a judgment, in which case the rule may be
different. The defendants' bond has such a provision with reference
to the payment of judgments recovered for fines and penalties. But
concededly there has been no breach of the bond in that respect. This
action is brought upon contract for the recovery of money agreed
to be paid in the event that Patterson violated the provisions of the
Liquor Tax Law. The surety guaranteed that he would not violate
that law, and to establish a breach of the bond against it proof must
be made otherwise than by a judgment of conviction against him.

It follows that the judgment against Patterson should be affirmed, with costs, and judgment against the surety company reversed, and a new trial granted, with costs to it to abide the event.

All concur, except LYON, J., who votes for affirmance, and WOODWARD, J., who votes for reversal.

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(166 App. Div. 599)

DONOHUE v. CITY WATER POWER CO. et al. (No. 6847.)
(Supreme Court, Appellate Division, First Department. March 12, 1915.)
Trusts @mo110CREATION-EVIDENCE-SUFFICIENCY.

In a suit by the receiver of a corporation on behalf of its creditors, evi.
dence held insufficient to show that a franchise, taken individually by
one who was president and treasurer of the corporatior which had for.
merly held and had let expire a similar franchise, was held by him in
trust for the corporation.
[Ed. Note.--For other cases, see Trusts, Cent. Dig. $ 160; Dec. Dig.

110.]
Appeal from Special Term, New York County.

Action by James M. Donohue, as receiver of the Hydraulic Prop-
erties Company, against the City Water Power Company and others.
From a judgment for certain defendants, plaintiff appeals. Affirmed.

See, also, 159 App. Div. 776, 144 N. Y. Supp. 923.
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGH-
LIN, CLARKE, and SCOTT, IJ.

Lemuel E. Quigg, of New York City, for appellant,
Morgan M. Mann, of New York City, for respondents.

McLAUGHLIN, J. This action was brought to procure a judg-
ment impressing a trust upon a franchise granted by the city of Austin,
Tex., to construct a dam across the Colorado river and take water
therefrom, and upon certain patent rights in which the respondents
claim no interest. The Hydraulic Properties Company, of which the
Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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