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its counterclaim, less the amount claimed by plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ.

Gerard J. Cuoco, of New York City, for appellant."
Francis Mezzatesta, of New York City, for respondent.

GUY, J. [1] Plaintiff brought this action to recover the sum of $7 claimed by him to be due from the defendant as a sick benefit for one week's disability. Defendant set up a counterclaim for $10, awarded it upon the denial of a motion theretofore made by plaintiff for a writ of mandamus. This counterclaim was allowed, and defendant recovered a judgment for $3. By the recovery of this judgment the plaintiff has established his right to be paid by defendant the sum of $7 per week as sick benefits, under a certain by-law of the defendant, and this judgment also established a right to receive sick benefits for a like amount to all other members of the defendant similarly situated. The defendant, claiming that plaintiff is not entitled to recover, has appealed, and asks this court for a reversal of the judgment. The question involved is the validity of the by-law under which plaintiff has now established his right to recover. The case was heard below, and comes up upon appeal upon an agreed statement of facts. In paragraph 5 of such statement, it is set forth that plaintiff became a member of the defendant in "September, 1902." In paragraph 6 it alleges that, "when plaintiff became a member," the dues were 50 cents per month, and that the society was paying "no sick benefits.” In paragraph 7 it alleges that in “January, 1901" (this, it will be observed, is before plaintiff became a member, if the statement in paragraph 5 is true), the defendant employed a physician for the purpose of treating, during illness, the members of the defendant and their families; that the dues were raised to 75 cents per month, the additional 25 cents per month being paid to the physician; that members residing outside of Greater New York, that cannot avail themselves of the services of the society's doctor, should be paid $2 per week during illness; and that this plaintiff then asked that he be refunded $3 per year (25 cents per month) and the further sum of $3.66 each year, in lieu of the $2 weekly if sick; and that this request was granted. It will be seen from these paragraphs that it is impossible to determine the exact situation regarding the payment of dues at the time the plaintiff became a member, as it is evident that, if he joined in 1902, the by-law of January, 1901, as set forth in paragraph 7 was in force, and the dues were 75 cents per month, whereas it is alleged in paragraphs 5 and 6 that he joined in 1902, and that the dues were then but 50 cents per month. This contradiction might not be very material in determining the validity of the disputed by-law, but it creates confusion, and the case ought not be decided unless all the facts are admitted.

[2] Another more serious situation is also presented. The plaintiff attacks the validity of a by-law passed in May, 1913, which amended a by-law passed in 1903. The by-law of 1903 before its amendment provided for the payment of $7 per week sick benefits to all of defend

ant's members. The amendment of 1913 thereto deprived all members residing outside Greater New York from receiving the $7 per week sick benefits. Paragraph 13 of the agreed statement of facts reads as follows:

(13) That plaintiff has at no time during his membership received any services from the doctor of the society and, in case of illness, has been compelled to engage a doctor at his own expense, for which at his request, and whether or not the society has refunded to him the money paid by him for the doctor and three and 66/100 ($3.66) in addition yearly.”

If therefore, as that paragraph may be reasonably construed as meaning, during the time from the passage of the by-law as stated in paragraph 7 in 1901, up to the time the agreed statement of facts was submitted to the court below, the plaintiff has been receiving from the society "yearly the refund of 25 cents per month and in addition the sum of $3.66 per year in lieu of weekly payments when sick, he would have no right to complain of the refusal of the defendant to pay the $7 per week provideci by the by-law of 1903, even if we assume, without herein deciding, that the by-law of 1913 was invalid, and plaintiff would be estopped from recovering in this action. It is substantially admitted by the attorneys for the respective parties herein that such refunding did not continue after the passage in 1913 of the amendment to the by-law of 1903; but we cannot consider statements extrinsic of the record, and, as the decision in this case is likely to affect many others, the statement of facts should be clear and unambiguous. This can be corrected on a new trial.

Judgment reversed, and new trial ordered, without costs of this appeal to either party. All concur.

NICOLETTI v. DIECKMANN.

(Supreme Court, Appellate Term, First Department. February 4, 1915.) 1. BAILMENT (8 31*)—NEGLIGENCE OF BAILEE-EVIDENCE.

Testimony of plaintiff that he kept a horse and harness in defendant's stable for a specified compensation per month, that the horse and harness were placed in the stable on Sunday morning, that plaintiff, on coming back in the evening, fed the horse and went home, that he returned early the next morning and found the horse and harness missing, and also found defendant's watchman asleep in bed, and that the watchman stated that he did not know anything about the horse, established a prima facie case against defendant, requiring an explanation from him, to escape liability.

[Ed. Note.--For other cases, see Bailment, Cent. Dig. $$ 124-131; Dec.

Dig. $ 31.*] 2. WITNESSES (8 243*)—EXAMINATION-LEADING QUESTIONS.

Where a witness, who is an illiterate foreigner, testifying through an interpreter, cannot be made to answer a question unless the question is leading, the court must, in interest of justice, permit leading questions.

[Ed. Note.--For other cases, see Witnesses, Cent. Dig. $$ 795, 847; Dec. Dig. § 243.*] *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Raffaele Nicoletti against Frederich H. Dieckmann. From a judgment of dismissal at the close of plaintiff's case, plaintiff appeals. Reversed, and new trial granted.

Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ.

Palmieri & Wechsler, of New York City (Samuel Wechsler, of New York City, of counsel), for appellant.

Theodore P. Nanz, of New York City (Andrew F. Murray, of New York City, of counsel), for respondent.

GAVEGAN, J. The action was brought to recover $335, the value of plaintiff's horse and harness, alleged to have been lost through the negligence of the defendant.

[1] The plaintiff kept his horse and harness in a stall of the defendant's stable, paying the defendant $5 a month on his assurance that the horse would be safe there. The stable contained 30 stalls. The plaintiff himself fed and cleaned the horse, took him out early in the morning to deliver ice, and brought him back at night. At 9 o'clock a. m. on Sunday, August 30, 1914, the plaintiff returned the horse to the stall. He came back at 7 o'clock in the evening, fed the horse, and' then went home. He returned at 3 o'clock the following morning, to take the horse out, but found that the horse and harness were missing. He found the defendant's watchman asleep in bed, and asked him what had become of his horse. The watchman said that he did not know anything about it, and had not seen it. Upon this testimony the defendant moved to dismiss the complaint on the ground that the plaintiff had not established any negligence, and the court granted the motion.

I think the plaintiff's evidence at least made out a prima facie case of a want of ordinary care, which required an explanation from the defendant. In fact, the plaintiff's proof established affirmatively the negligence of the defendant; it being a fair inference from the evidence that the watchman, who was found asleep by the plaintiff, was in the employ of the defendant. Swann v. Brown, 51 N. C. 150, 72 Am. Dec. 568.

[2] I am also of the opinion that the trial court erred in excluding questions asked by plaintiff's counsel regarding a conversation between the parties when plaintiff brought his horse to defendant's stable. This conversation, if allowed, would have presumably defined the agreement between the parties. The only objection raised to the questions was that they were leading. Plaintiff evidently could command sufficient English to enable him to make an agreement in that language with the defendant with regard to the stabling of his horse, but it was necessary for him to testify through an interpreter at the trial. Such instances frequently come under the observation of the court without arousing suspicion as to the witness' veracity. This court has held that, in the interests of justice, strict rulings should be relaxed when it becomes apparent that a witness who is an illiterate

foreigner, testifying through an interpreter, cannot be made to answer a question without being led. Strnad v. William Messer Co., 142 N. Y. Supp. 314.

The judgment appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur; GUY, J., concurring in the result.

(165 App. Div. 721)

PEOPLE v. JACOBS et al.

(Supreme Court, Appellate Division, Second Department. January 22, 1915.) 1. GAME ($$ 7, 9*)-STATUTORY PROVISIONS/LICENSES—"To Hunt."

Under Conservation Law (Laws 1912, c. 318) $ 185, subd. 1, providing that no person shall, without a license, hunt, pursue, or kill with a gun any wild game or engage in hunting or trapping, except as provided, it is forbidden to hunt or pursue game, though without taking or killing, and an information alleging that accused hunted without a license is sutiicient without specifying the particular game; the phrase "to hunt” being defined as to chase or pursue game or other wild animals.

[Ed. Note.-For other cases, see Game, Cent. Dig. $8 6, 7, 9; Dec. Dig.

88 7, 9.*] 2. CRIMINAL LAW (8 406*)—EVIDENCE-ADMISSIBILITY.

A voluntary plea of guilty on a prior hearing is admissible as an admission on a subsequent trial after reversal of a conviction and the granting of a new trial.

(Ed. Note.—For other cases, see Criminal Law, Cent. Dig. 88 785, 894– 917, 920-927; Dec. Dig. $ 406.*]

Appeal from Suffolk County Court.

John Ernest Jacobs and another were convicted of violating the Conservation Law, $ 185, and they appeal. Affirmed.

Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ.

Le Roy E. Raynor, of Greenport, for appellants.

Le Roy M. Young, Asst. Dist. Atty., of Babylon (Ralph C. Greene, Dist. Atty., of New York City, on the brief), for the People.

PUTNAM, J. The information, after giving the particulars of time and place, charged the defendants with “then and there hunting without a license on Shinnecock Bay, contrary to and in violation of section 185 of the Conservation Law” (Laws of 1912, c. 318). That statute reads as follows:

"Subdivision 1: No person or persons shall at any time hunt, pursue or kill with a gun, any of the wild animals, fowl or birds that are protected during any part of the year, or take with traps or other devices any fur bearing animals, or engage in hunting or trapping except as herein provided, without first having procured a license so to do, and then only during the respective periods of the year when it shall be lawful."

[1] Counsel for defendants seasonably objected that the information did not state facts sufficient to constitute any crime, which the court overruled. Certain game protectors testified to hearing two shots fired on Shinnecock Bay; that they saw defendants rise up and walk along *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the shore, enter a rowboat, and start out towards a wild duck floating on the water. On seeing the game protectors, defendants turned away, but stopped their boat when so hailed. In the rowboat were two shotguns and a red flag such as is used to attract ducks. Asked to show a gunning license, defendant Jacobs produced one of 1912. The defendants were the only persons in the vicinity. No one saw either defendant fire a shot, but, as the reports sounded, defendants were seen where the smoke was rising. There was also testimony that, at the arraignment before the justice, defendants first pleaded guilty. Defendants gave no testimony.

The words “then and there hunting without a license” were sufficient, as they indicated the offense. People v. Wacke, 77 Misc. Rep. 196, 137 N. Y. Supp. 652. If the offense was the killing or wrongful taking of such game, the information should specify the animals so taken. By our Conservation Law for the protection of wild life, the offense is committed merely by the hunting or pursuit, without taking or killing. Hence it is not necessary to allege the particular game being hunted. The verb “to hunt” is defined as “to chase or pursue game or other wild animals"; and this information plainly was so understood. An information for unlicensed hunting or pursuit need not, and could not accurately, specify what particular game the hunters were after. To contend seriously that this information might mean hunting tame domesticated ducks on Shinnecock Bay is too finely drawn. Dieterich v. Fargo, 194 N. Y. 359, 365, 87 N. E. 518, 22 L. R. A. (N. S.) 696.

[2] There was no error in receiving testimony of a prior plea of guilty. Defendants had so pleaded, although thereafter, on their motion, the county judge had reversed this judgment and given them a new trial. The voluntary plea of guilty at the prior hearing was an admission of the failure to take out a license, which, with the other evidence, was properly left to the consideration of the jury.

No error appearing, I advise that the judgment of conviction be affirmed. All concur; CARR, J., not voting.

(165 App. Div. 748)

WALTER FARRINGTON TILING CO. V. HAZEN et al, (Supreme Court, Appellate Division, Second Department. January 29, 1915.). 1. FRAUDULENT CONVEYANCES ($ 95*)--CONSIDERATION-SUFFICIENCY.

Where a transfer of corporate stock by a husband to his wife was in consideration of an indebtedness from him to her for money lent by her to bim, the court, in a suit to set aside the transfer as fraudulent against his creditors, will not consider the sufficiency of the consideration.

(Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. 58

243-288; Dec. Dig. $ 95.*] 2. FRAUDULENT CONVEYANCES ($95*)--CONSIDERATION-SUFFICIENCY.

A father, who had made a will giving his property to his son, informed the son that he desired that the son's wife should have an equal share in the property, and would make a new will accordingly, unless the son would agree to give his wife an equal share. The son agreed, and received the property under the will, and the proceeds thereof were used

in the purchase of real estate subject to a mortgage. The son thereafter *For other cases see same topic & $ NUMBER ID Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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