App. Div.]

Third Department, May, 1920.

discloses that after the letters were written a John Doe proceeding was instituted in Tannersville near where defendant resides. The alleged purpose of such proceeding was to investigate the stealing of a slot machine from the Antlers Hotel. The defendant was subpoenaed as a witness in that proceeding, and it clearly appears from what took place there that the sole purpose was to get this defendant where she would write, so that a genuine sample of her handwriting could be procured to be used in proceedings against her upon the charge of blackmail. Samuel J. Killian was a post office inspector. What took place at the John Doe proceedings was testified to upon the trial of this indictment and is best shown in the examination of this witness. "Q. I show you a paper, Mr. Killian, which has been marked' People's Ex. D.' I ask you if you ever have seen that paper before? A. I have. Q. Did you see it written? A. Yes sir. Q. Where? A. At Tannersville. Q. By whom was it written? A. Mrs. Phebe Ryan." He then says he dictated it to her; as matter of fact he read to her the Myers letter. He was then asked, "How did you come to ask her? Just tell us what took place at that time when you asked her to make this handwriting on this paper? A. There was considerable investigation going on at the time, concerning letters in the burning of buildings, and the local authorities were interested on their side and Inspector Smith and I were interested from the post office point of view." Again, "At the conclusion of the proceedings I took advantage of the opportunity of her presence and told her I was a post office inspector, that I was investigating the matter of these letters and seeking evidence to place the responsibility and asked her if she would mind giving me a sample of her handwriting, that she had been mentioned to me as a suspect and I would like it to use for the purpose of placing responsibility. She at first protested and in a minute or so she agreed and gave me the handwriting." This defendant was not represented by counsel at the hearing in the John Doe proceedings; and upon the trial objection to this evidence was not taken: I feel this was a mistake. However, we can consider the effect of the evidence on defendant's rights; the law will not permit her to be prejudiced, even if mistake was so made; under section 542 of the Code of Criminal Procedure we can review this evidence and say whether an invasion of defendant's rights, such as this discloses, even though not presented by objection and exception, shall be allowed to stand. This evidence of handwriting was vital to the successful outcome of the prosecution; it was not voluntary, and it was furnishing the People with the only positive evidence of this defendant's handwriting. It is urged that because defendant was only a witness in the John Doe proceedings, in no way connected with the crime with which she was later to be charged, therefore, it was competent to procure evidence as this was procured; that there was not threat nor duress. We are unaware of the fact, if it exists, that the authority charged with just and orderly administration of the law has any higher regard for fraud than it has for threats or duress. The evidence was procured by fraud and by reason thereof every element of voluntary action on part of defendant was vitiated; in addition Killian shows it was not voluntary and she swears to evidence susceptible of no other inference.

No

Third Department, May, 1920.

[Vol. 192. new trail is being blazed. In People v. Chapleau (121 N. Y. 274) the court lays down the general rule governing the reception of this kind of evidence as follows: "It is thus perfectly clear that both before and since the enactment of the Code provisions, the test of admissibility of the statements of a party accused of the commission of the crime, whether made in the course of judicial proceedings or not, is whether they were voluntary, and that can be determined by their nature and the circumstances under which made." In People v. Ferola (215 N. Y. 285) Judge Miller reviews a line of cases, representative of which is People v. Mondon (103 N. Y. 211), which would seem to be antagonistic to the position taken in the case at bar - and the other class of cases followed in the case under consideration, represented by 121 New York above cited, and holds the admission must be voluntary. The Constitution guarantees the defendant a fair trial. The presumption of innocence is not destroyed by an unfair trial, where the conviction is had upon incompetent evidence. A reading of this record forces an irrepressible conviction upon the mind that the defendant did not have a fair trial. The judgment should be reversed and a new trial granted to the defendant.

Before STATE INDUSTRIAL COMMISSION, Respondent.

In the Matter of the Claim of JOHN J. KAVANAUGH, Respondent, for Compensation under the Workmen's Compensation Law, v. GENERAL ELECTRIC COMPANY, Appellant.

Workmen's Compensation Law sufficiency of notice of injury — telling assistant foreman but with no intention of giving notice on which to predicate claim.

Appeal from an award of the State Industrial Commission in favor of the claimant made on the 29th day of September, 1919.

Award affirmed. All concur, except Kiley, J., dissenting, with an opinion. KILEY, J. (dissenting): On November 15, 1918, the claimant while at work for the appellant claims to have injured his back while lifting a heavy coil of wire says he heard or felt something snap in his back in lumbar region; that he felt dizzy and weak and was unable to do anything for several minutes; he continued to work until about February 25, 1919, when he was unable to work longer. Whether claimant received his injury at that time and in the way he claims to have received it was a question of fact passed upon adversely to the appellant, and under section 20 of the Workmen's Compensation Law* the decision is final and binding upon this court. The difficulty confronting the claimant is under the provisions of section 18 of the Workmen's Compensation Law.† Notice of injury is required to be given to the employer in writing, or if a corporation, as in this case, such notice must come to the employer in such a way that the employer will not be prej

* Amd. by Laws of 1917, chap. 705. Since amd. by Laws of 1919, chap. 629.- [REP.

† Amd. by Laws of 1918, chap. 634.- [REP.

App. Div.]

Third Department, May, 1920.

udiced because of the omission of the written notice. The only notice given the employer of claimant's injury which is claimed to comply with the provisions of the statute is that claimant told the assistant foreman about the snapping in his back and his subsequent dizzy feeling; that he did not know or think of the injury and had no intention of giving a notice upon which he was to predicate a claim for compensation. He continued to work until February 25, 1919, and said nothing about the incident, after the day it occurred, to any one connected with his employer. Under adjudicated cases in this court and the Court of Appeals such notice would seem to be insufficient. (Bloomfield v. November, 180 App. Div. 240; affd., 223 N. Y. 265.) The amendment to the Workmen's Compensation Law took effect May 13, 1918. This injury occurred in November, 1918. The award should be reversed and claim dismissed.

THE ARGUS COMPANY, Respondent, v. HELEN BRESLIN, Appellant.— Order unanimously affirmed, with costs.

WALTER S. ARCHIBALD, as Trustee in Bankruptcy of EXCELSIOR BAG & TENT COMPANY, INC., Appellant, v. JOHN PANAGOULAPOULOS, Respondent, Impleaded with CHARLES A. OTIS and Others, Comprising the Partnership of OTIS & Co., Appellants.- Judgment modified by deducting from the judgment against plaintiff $10,150, the price of 5,000 unaccepted tents, and by striking out the costs against Otis & Co., and as so modified affirmed, without costs. All concur, except Kiley, J., dissenting upon the ground that the judgment should be modified by fixing the claim of the respondent at nineteen cents a tent for 145,000 tents, amounting to $27,350; striking out the costs against Otis & Co.; and further that the respondent has no lien upon the money and it should be paid to the referee in bankruptcy. [See post, p. 940.]

JAMES W. BALLARD, as Receiver of the KEYSTONE GUARD, Appellant, Respondent, v. SARATOGA NATIONAL BANK OF SARATOGA SPRINGS, NEW YORK, Respondent, Appellant.- Order affirmed, with costs. All concur, except Woodward and Kiley, JJ., who dissent and vote to reinstate the verdict of the jury.

COOPER-SNELL COMPANY, Claimant, Appellant, v. THE STATE OF NEW YORK, Respondent. (1549A.)- Under section 275 of the Code of Civil Procedure, as amended by chapter 481 of the Laws of 1919, this court has no jurisdiction to hear this appeal. [See 193 App. Div. 192.]

COOPER-SNELL COMPANY, Claimant, Appellant, v. THE STATE OF NEW YORK, Respondent. (1688A.) Under section 275 of the Code of Civil Procedure, as amended by chapter 481 of the Laws of 1919, this court has no jurisdiction to hear this appeal. [See 193 App. Div. 192.]

FULD & HATCH KNITTING COMPANY, Respondent, v. RUDOLPH SCHREIBER, Appellant. Appeal withdrawn on stipulation.

GEORGE S. HATCHER, Respondent, v. UNITED AMERICAN IRON AND STEEL COMPANY, Appellant.- Judgment and order affirmed, with costs. All concur, except Kiley, J., dissenting on the ground that the verdict is excessive.

Third Department, May, 1920.

[Vol. 192. ITHACA TRACTION CORPORATION, Appellant, v. THE TRAVELERS INDEMNITY COMPANY, Respondent.— Order unanimously affirmed, with costs. JULIUS KAYSER & COMPANY, Respondent, v. RICHARD ELSEMILLER, Individually and as President of the SILK GLOVE CUTTERS' UNION, LOCAL No. 888, AMSTERDAM, N. Y., OF THE UNITED TEXTILE WORKERS OF AMERICA, and Others, Defendants. CHRISTINA WALSH, Appellant. In accordance with the stipulation of the respective attorneys herein, and the recommendation of the district attorney of the county of Montgomery, and the commissioner of public safety of the city of Amsterdam, the proceeding is dismissed.

JULIUS KAYSER & COMPANY,. Respondent, v. RICHARD ELSEMILLER, Individually and as President of the SILK GLOVE CUTTERS' UNION, LOCAL No. 888, AMSTERDAM, N. Y., OF THE UNITED TEXTILE WORKERS OF AMERICA, and Others, Defendants. FRED WELCH, Appellant. In accordance with the stipulation of the respective attorneys herein, and the recommendation of the district attorney of the county of Montgomery, and the commissioner of public safety of the city of Amsterdam, the proceeding is dismissed.

PETER KEELER BUILDING COMPANY, Respondent, v. E. H. TITCHENER & COMPANY, Appellant.- Decision amended so as to read as follows: Judgment and order reversed, with costs, and the complaint dismissed, with costs. Opinion by Henry T. Kellogg, J. All concur, except Cochrane, J., dissenting, with a memorandum in which Woodward, J., concurs. [See 190 App. Div. 135.]

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim for Compensation Made by MARY HANLEY, Respondent, under the Workmen's Compensation Law, for the Death of Thomas Hanley, V. THE NEW YORK CENTRAL RAILROAD COMPANY, Employer and Self-Insurer, Appellant. Award reversed and claim dismissed on the ground that the deceased was engaged in interstate commerce under the authority of Southern Pacific Co. v. Industrial Accident Commission (174 Cal. 8) and Southern Pacific Co. v. Industrial Accident Commission (Id. 16). All concur, except Kiley, J., dissenting.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of WILLIAM R. MINER, Respondent, for Compensation under the Workmen's Compensation Law, v. FRED L. PORTER, Employer, and THE TRAVELERS INSURANCE COMPANY, Insurance Carrier, Appellants.— Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of MARIE WELCH (WALSH), Widow, Respondent, for Compensation under the Workmen's Compensation Law, for the Death of James Walsh, Husband of Claimant, v. JAMES J. DOOLEY & SONS, Employer, and MARYLAND CASUALTY COMPANY, Insurance Carrier, Appellants.- Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of PETER PELLERIN, Respondent, for Compensation under the Workmen's Compensation Law, v. ENTERPRISE GARNETTING COMPANY, Employer, and the AMERICAN MUTUAL LIABILITY INSURANCE COMPANY,

App. Div.]

Third Department, May, 1920.

Insurance Carrier, Appellants.- Award modified by fixing the compensation at twelve dollars and six cents per week, and as modified unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of HAZEL LEON and Others, Respondents, for Compensation under the Workmen's Compensation Law, v. Gilbert Knitting COMPANY, Employer, and UTICA MUTUAL INSURANCE COMPANY, Insurance Carrier, Appellants.-Award reversed and matter remitted to the Commission, on the ground that notice of injury was not given to the employer, and the failure to give such notice has not been excused by the Commission. All

concur.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim for Compensation under the Workmen's Compensation Law, Made by JOSEPH J. VENERONI, Respondent, v. BAUSCH & LOMB OPTICAL COMPANY, Employer, and the UTICA MUTUAL INSURANCE COMPANY, Insurance Carrier, Appellants.-Award affirmed on the ground that the evidence, including the statement of the employer in the report of the injury, establishes the claim. All concur, except Woodward and Kiley, JJ., dissenting.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of Mrs. RUTH A. POST, Respondent, for Compensation under the Workmen's Compensation Law, Claimed to Be Due LANSING POST, Her Husband, v. W. S. WOOD COAL COMPANY, Employer, and ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY, LTD., Insurance Carrier, Appellants.-Award reversed and matter remitted to the Commission, on the ground that compensation should have been based on subdivision 3 of section 14 of the Workmen's Compensation Law. All concur.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of WILLIAM JOB, Respondent, for Compensation under the Workmen's Compensation Law, v. FREDERICK W. J. MCKIBBEN, as Substitute Trustee under the Will of BENJAMIN MARSHALL, Deceased, and the GLOBE INDEMNITY COMPANY, Insurance Carrier, Appellants, and JAMES W. HISLOP, Employer, and the STATE INSURANCE FUND, Insurance Carrier.— Award reversed as to the appellants and the claim against them dismissed upon the ground that there is no evidence tending to show any liability. All

concur.

In the Matter of the Estate of Amanda C. REYNOLDS, Deceased. HAMILTON J. HEWITT, Special Guardian for DUMOND REYNOLDS, an Infant, Appellant; WILLIAM E. REYNOLDS, Executor, etc., Respondent.- Decree unanimously affirmed, without costs.

IDA PIATT, an Infant, by CHARLES PIATT, Her Guardian ad Litem, Appellant, v. ELLEN HALSTEAD and ALICE L. SAWYER, Respondents.- Judgment and order unanimously affirmed, with costs. Kiley, J., not sitting.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE STAR COMPANY, Relator, v. WALTER H. KNAPP and Others, as Tax Commissioners of the State of New York, and Another, Respondents.- Determinations modified by eliminating the tax for the years 1904 and 1905, and, as so modified, unanimously confirmed, without costs.