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See, also, Adair v. Brimmer, 74 N. Y. 539.

It does not appear, from the findings made at the request of defendant, whether the petitioner and her daughter were informed that in case the funds and securities of the estate were placed in the custody of John Bull, Jr., and misappropriated and lost by him, that defendant, and the sureties upon his official bond, would be relieved from liability to them to make good the loss.

[2] As to the son, Charles, it is clear that he is not estopped by any consent he may have given while an infant, and there is no finding of any ratification by him of the arrangement since he became of age, with knowledge of the facts.

[3] We are of opinion, however, that we ought not upon this record to make final disposition of this case. None of the exhibits are furnished to the court or printed in the record. The testimony of the son, Charles, seems to have been taken in the form of an affidavit; but it is not in the record. So far as we can judge from the testimony, the railroad bonds, of which the estate consisted at the time defendant was appointed committee, were soon thereafter sold, and the funds invested and reinvested from time to time in bonds and mortgages, all in the name of defendant, as committee. While defendant disclaims having had the custody of these mortgages, they were for many years kept in a safe in the offices occupied jointly by defendant and John Bull, Jr., who were both lawyers and for several years copartners, and at some time Bull succeeded in making away with these mortgages or their proceeds. To accomplish this it would seem that he required in every instance the signature of the defendant to either an assignment or discharge of each separate mortgage. None of these documents were produced in evidence. Indeed, it is quite impossible to determine from the evidence when Bull began appropriating this estate to his own use, and over what period of time he was so engaged.

In view of the office and business association of the defendant and Bull, there is, we think, a further question, not fully gone into at the trial, as to whether Bull's dealings with the securities of the estate were of such a character as to amount to notice to defendant, and to have called for affirmative action on his part.

We think the order appealed from should be reversed, with costs to the appellant to abide the final award of costs, and that a new trial or hearing should be ordered at Special Term.

(165 App. Div. 59)

PEOPLE v. DUNBAR CONTRACTING CO. et al. (Supreme Court, Appellate Division, Second Department. December 18, 1914.) 1 CORPORATIONS ($ 529*)-CRIMINAL RESPONSIBILITY—"PERSON."

In view of l'enal Law (Consol. Laws, c. 40) $ 580, defining conspiracy by two or more persons to commit a crime, to cheat or defraud, etc., and section 1932, declaring that a corporation convicted of an offense, for the commission of which a natural person would be punished by imprisonment, shall be punished by a fine of not more than $5,000, and General

*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Construction Law (Consol. Laws, c. 22) $$ 1-37, declaring the term “person" to •include corporations, a corporation may be convicted for conspiracy, in which a specific intent is a necessary and controlling element.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 2140–2144 ; Dec. Dig. 8 529.*

For other definitions, see Words and Phrases, First and Second Series,

Person.) 2. CONSPIRACY ($ 47*)— NATURE AND ELEMENTS OF OFFENSE-EVIDENCE.

It is not necessary that there be independent proof of a conspiracy before acts can be proven in furtherance of it, but the same evidence may establish both a conspiracy and the overt acts charged.

[Ed. Note.-- For other cases, see Conspiracy, Cent. Dig. 88 105–107; Dec.

Dig. § 47.*] 3. CONSPIRACY (8 47*)-CIRCUMSTANTIAL EVIDENCE.

Evidence establishing a conspiracy and the overt acts charged may be wholly circumstantial.

[Ed. Note.-For other cases, see Conspiracy, Cent. Dig. $$ 105–107; Dec.

Dig. $ 47.*) 4. CONSPIRACY (8 47*)—V10LATION OF PUBLIC CONTRACT-SUFFICIENCY OF

EVIDENCE.

In a prosecution for conspiracy to cheat and defraud the state, by failing to perform labor and furnish material required by a state contract for the repair of a highway, and by falsely representing that the work had been done and the materials furnished according to the contract, and obtaining payments therefor, evidence held to sustain a conviction.

[Ed. Note.-For other cases, see Conspiracy, Cent. Dig. $$ 105-107; Dec.

Dig. $ 47.*] 5. CRIMINAL LAW (8 423*)--EVIDENCE-ACTS AND DECLARATIONS OF CO-CON

SPIRATOR.

In such prosecution, where the state contended that, as part of the conspiracy and for the purpose of making it effectual, defendant D. procured a state official to put defendant F. in charge of the work as superintendent for the state, evidence as to a telephone conversation in which D. asked for the appointment of F., and as to a letter, signed by defendant D., referring to the conversation and requesting that F. be assigned as the state's superintendent of work under the contract, was admissible as acts and declarations of a co-conspirator.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 989–1001;

Dec. Dig. $ 423.*] 6. CRIMINAL LAW ($ 854*)—TRIAL-SEPARATION OF JURY.

In the trial of a criminal case, the court directed the division of the jury into two parts, one officer taking six to one hotel and another taking the other six to another hotel, and after the conclusion of the charge at 11:30 directed the two officers to take the jurors to dinner at 12 o'clock, which was done, the officers keeping with the jurors while outside the jury room, and not allowing them to talk among themselves about the case, and returning them to the jury room immediately after their dinner. Held, that any separation of the jury was not prejudicial to defendants.

(Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 2039-2047; Dec. Dig. $ 854.*]

Appeal from Trial Term, Rockland County.

The Dunbar Contracting Company, Bart Dunn, and Joseph J. Fogarty were convicted of conspiracy. From the conviction, and from orders denying their motions in arrest of judgment and for a new trial, they appeal. Judgment and orders affirmed. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

See, also, 143 N. Y. Supp. 337.

Argued before BURR, THOMAS, CARR, RICH, and STAPLETON, JJ.

William Travers Jerome, of New York City (Mortimer B. Patterson, of Nyack, on the brief), for appellants.

Thomas Gagan, Dist. Atty., of Haverstraw, for respondent.

RICH, J. The defendants were indicted for the crime of conspiracy under the provisions of subdivision 4, § 580, of the Penal Law; the charge being that they conspired to cheat and defraud the state of New York, by omitting to perform labor and furnish material required by a contract between the state and the defendant the Dunbar Contracting Company for the repair of a highway in the county of Rockland, and by furnishing material inferior in quality and less in quantity than called for by said contract, and in falsely and fraudulently representing to the state that the work and materials, in quantity and quality, had been done and furnished as provided for and required by said contract, and thus obtaining payments thereunder that they were not entitled to, but would have been if the requirements of the contract had in fact been complied with. The defendant Dunn is the president and treasurer of the defendant company, and the defendant Fogarty was the representative of the state, supervising and in charge of the work on said highway. The jury found all of the defendants guilty, and from the judgment of conviction, and from two orders, one denying their motion for the arrest of judgment, and the other denying their motion to set aside the verdict and for a new trial, the defendants appeal.

[1] Before pleading, the defendants demurred to the indictment upon various grounds, the defendant company basing its demurrer in part upon the contention that the crime of conspiracy requires a specific criminal intent and that a corporation is incapable of committing any crime requiring criminal intention, because of which the indictment against it would not lie. The demurrers were severally overruled at Special Term, and it is now contended that this was error. This contention is without merit. Upon both principle and authority a corporation may be indicted and convicted for conspiracy and similar crimes of which specific intent is the necessary and controlling element. Penal Law, $$ 580, 1932; General Construction Law, $$ 1-37; Bishop's New Criminal Law, vol. 1, § 417, subd. 2-4; People v. Woodbury Dermatological Inst., 124 App. Div. 879, 882, 883, 109 N. Y. Supp. 578, approved and affirmed 192 N. Y. 454, 85 N. E. 697; People v. Rochester Railway & Light Co., 195 N. Y. 102, 103, 88 N. E. 22, 21 L. R. A. (N. S.) 998, 133 Am. St. Rep. 770, 16 Ann. Cas. 837; N. Y. C. & H. R. R. R. Co. v. United States, 212 U. S. 481, 29 Sup. Ct. 304, 53 L. Ed. 613; Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. Y. 669, 12 N. E. 826; State v. Eastern Coal Co., 29 R. I. 254, 70 Atl. 1, 132 Am. St. Rep. 817, 17 Ann. Cas. 96, 102; United States v. MacAndrews & Forbes Co. (C. C.) 149 Fed. 823; Cohen v. United States, 157 Fed. 651, 85 C. C. A. 113; United States v. Young & Holland Co. (C. C.) 170 Fed. 110; State v. Passaic County Agricultural Society, 54 N. J. Law, 260, 23 Atl. 680.

[2, 3] It is contended that there is no direct evidence of a conspiracy between the parties, and that there must be independent proof of the conspiracy before acts can be proven in furtherance of it. This contention is also without merit. The same evidence may establish both the conspiracy and overt acts charged, and the evidence may be wholly circumstantial. People v. Miles, 123 App. Div. 862, 108 N. Y. Supp. 510; People v. Micelli, 156 App. Div. 756, 761, 142 N. Y. Supp. 102.

[4] In the case at bar the violations of the contract were so flagrant as to compel the conclusion that they were the result of a conspiracy on the part of the defendants to cheat and defraud the state. Dunn, as I have said, was the president and treasurer of the Dunbar Contracting Company. He was also its principal stockholder, owning 18 of the 20 shares of authorized stock. He executed the contract in behalf of the company and had general supervision of its performance. He knew what the contract required, and is shown to have known the manner in which the work was actually performed and that its provisions were flagrantly ignored. It seems that Fogarty had been in the employ of both Dunn and the Dunbar Contracting Company before the work was commenced, and was subsequently appointed by the state authorities as a foreman of laborers on state roads upon the recommendation of the Dunbar Contracting Company. He was assigned to road 91, which the company had contracted to repair, at the request of Dunn, and it was his duty to see that the contract was executed strictly in accordance with its requirements and to make actual measurements and monthly estimates based thereon, showing the amount of work and amount, kind and character of material furnished, and forward the same to the state department of highways. Upon such estimates the state paid the contractor, the Dunbar Contracting Company. He was the only representative of the state on road 91, and was present during the progress of the work. He knew what the contract required, and knew, as it was his duty to know, the work that was actually done, and materials actually furnished and used, both in quality and quantity, and it was likewise his duty as the representative of the state to compel strict performance of the contract requirements.

The contract required, among other things, that 2.9 miles in length and 16 feet in width of the road, amounting to 27,220 square feet surface measurement, should be scarified, and defined such scarification as being the breaking up and loosening of its macadam surface by hand or mechanical scarifier, forking the stone clear of dirt and other foreign matter, and replacing them in their cleaned condition, raking them to a uniform grade and crown, and rolling the same, the dirt being placed on shoulders and the roadway shaped to receive the grout preparatory to placing the concrete top course provided for. The evidence shows that, instead of doing this, the Contracting Company merely tore up a part of the macadam surface, leaving a base for the grout and concrete other than that required by the contract, threw all the stone so loosened out of the roadway, and, without cleaning them from the adhering dirt and other matter, crushed and used them as an ingredient of the concrete in place of the screened gravel required to be used therefor. This was a radicai departure from the requirements of the contract. The roadbed was never prepared as required to receive the Portland cement grout, of which the contract required 757 cubic yards to be used on the 2.9 miles referred to, which would cover that entire length the width of 16 feet, to a uniform depth of one inch. Instead of placing the grout upon the cleaned returned stone of the old roadbed, after it had been brought to the grade required, the company first placed concrete upon the base it had created, contrary to the contract requirements, and over the concrete spread a poor quality of very thin grout, with brooms, to the depth of from one-eighth to one-quarter of an inch—nowhere exceeding that depth. There was used but 18914 cubic yards of grout, 56734 yards less than the contract required. It appears that the grout as so applied was of no value in the repair of the roadbed. It was intended to cement together and solidify the clean stone forming the base, and by so doing make a solid and substantial bed for the concrete surface. This effect was entirely lost by placing it on top of the concrete, where it served only to cover it, and to superficially indicate that the concrete being used was good and substantial.

The contractor was required to furnish and place upon the surface of the roadbed, for 2.9 miles in length and 16 feet in width, 2,270 cubic yards of second-class gravel concrete, the gravel to be screened and washed, uniformly spread to a depth of 3 inches when compacted. For a distance aggregating 4,600 feet of this road no concrete was used. The total quantity of concrete furnished and used was 1,135 cubic yards-one-half of the quantity required by the contract and actually paid for by the state. It covered the roadbed only 112 inches, instead of 3, and in its composition the stone taken from the old roadbed, owned by the state and which was required to be used for a solid foundation for the concrete surface, was used, instead of gravel. It appears that the stone were not cleaned before being crushed, and the concrete made from it was poor and of no value as a road surface, and that it was so soft that it would not hold together. In quality as well as quantity it was below the requirements of the contract, and the road, when pronounced completed, was really in no better condition than before repairs were commenced.

Without further consideration of the evidence in detail, it is sufficient to say that these radical departures from the contract, known to all of the defendants, could not have been honest and innocent mistakes, and they could not have been successfully accomplished by the contractor, with the knowledge and consent of Fogarty, except in the furtherance of a conspiracy to cheat and defraud the state. The contention of the learned district attorney that the failure to comply with the contract in the particulars noted was willful and corrupt is sustained by the evidence. The object and intent of the defendants is shown to have been to profit unlawfully at the expense of the state, and to accomplish that purpose their efforts seem to have been directed to every condition that held out a promise of success.

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