THIRD DEPARTMENT, NOVEMBER TERM, 1884.

Code says that appeals in such cases may be taken in like manner as from a judgment, etc., and with like effect. It is reasonable to apply the words "with like effect" to the matter of costs on appeal.

Section 3066, subdivision 4, gives costs as of course on appeal from a judgment where the judgment is reversed. Section 3240, as amended in 1881, puts costs on appeal in special proceedings in the discretion of the court, where they are not specially regulated

in the act.

It seems to us that the effect of sections 2260 and 3066 is to specially regulate costs in these summary proceedings, appealed from a justice's court. The plaintiff in the present case argues that section 3240 applies on the ground that costs on this appeal are not specially regulated. And therefore insists that as the costs in this case were not given by the court they cannot be had. It should be noticed, however, that the judge who reversed the order of dispossession also refused to strike out these costs. At any rate we think the plaintiff overlooks the effect of section 2260, above cited. She urges that section 2263 is the only section authorizing costs, and that is in case of restitution ordered.

Like many other questions upon the construction of several sections of the Code, the question may not be free from doubt. But analogy favors the construction taken by the county judge and we are of the opinion that he was correct.

Order affirmed, with ten dollars costs and printing disbursements.

Present — LEARNED, P. J., BOCKES and LANDON, JJ.

So ordered.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CHARLES OSTERHOUT, APPELLant.

Failure to arraign a prisoner and to require him to plead when it does not afford a ground for the reversal of his conviction.

Upon an appeal from a judgment of a Court of Sessions, convicting the defendant of an assault in the first degree, it was sought to have the judgment reversed upon the ground that the defendant had not been formally arraigned and that he did not formally plead. It appeared that he was present in court with his counsel at the trial and did not ask to plead, or object because he had not been

THIRD DEPARTMENT, NOVEMBER TERM, 1884.

arraigned. After the verdict had been rendered and the jury discharged he moved, upon this ground, to have the judgment arrested.

Held, that the objection could not be raised by a motion to arrest the judgment. That the case was not one in which justice required the court to exercise the power to grant a new trial, although no exception was taken upon the trial, conferred upon it by section 527 of the Code of Criminal Procedure.

APPEAL from a judgment, rendered against the defendant in the Court of Sessions of Rensselaer county, convicting the defendant of an assault in the first degree.

Orin Gambell, for the appellant.

La Mott W. Rhodes, for the respondent

LEARNED, P. J.:

The prisoner was duly indicted for assault in the first degree. He was tried at the Court of Sessions and convicted. No question is made as to any improper evidence, or error in the charge, or defect in the jury. The only point made is that the prisoner was not formally arraigned, and did not formally plead. He was present with his counsel throughout the trial; did not object that he had not been arraigned, and did not ask to plead. After the close of the trial, and after the verdict had been rendered and the jury had been discharged, and on the following day this point was first made, and made by a motion in arrest of judgment.

It is manifest that no injury has been done the defendant. No plea has been rejected; no evidence offered by him has been excluded. The defect is merely technical, affecting no rights whatever. If he had refused to plead, the trial would have proceeded just as it has. The trial would not be affected because of an imperfection in the indictment which did not tend to the prejudice of the substantial rights of the defendant upon the merits. (Code Crim. Pro., § 285.) Nor may this court on appeal regard technical errors or defects or exceptions which do not affect substantial rights. (Sec. 542.) If this section is to have any meaning at all it applies exactly to a case like the present.

No suggestion is made by the able counsel who has presented the defendant's case, that any substantial rights upon the merits have been affected. Every one who knows anything of a criminal trial must see that the omission did the defendant no harm.

The

THIRD DEPARTMENT, NOVEMBER TERM, 1884.

arraignment was certainly a matter which a prisoner could waive. (Pierson v. People, 79 N. Y., 424.) And he need not plead unless he desires to do so. (Sec. 342.) Especially in a case where the prisoner appears with his own counsel, the omission formally to arraign and to ask for a plea is immaterial to his rights and may be deemed to be waived.

Again, the grounds of a motion in arrest of judgment are defects in the indictment. (Sec. 467.) These are stated in sections 331, 333. The omission to arraign or to ask the defendant to plead is not, and could not be, one of the defects in the indictment.

Cause against the judgment may be shown before sentence: First, insanity; second, good cause in arrest of judgment. (Sec. 481.) The prisoner does not show insanity, and for the causes in arrest of judgment we must refer to section 467, as above. The court below could have granted a new trial for the reasons stated in section 465. None of those exist here.

Under section 517 this court on appeal can review any intermediate order forming part of the judgment-roll. By section 485 the roll may contain the bill of exceptions. When, then, we examine the bill of exceptions to see if any error was committed, we find that the only alleged error was a refusal to arrest the judgment after trial. No other exception presents the point which the defendant urges. And we have already seen by examination of section 467 that such a motion must be for defects in the indictment. But the defendant urges that the appeal brings up the roll and that this should contain the minutes of the plea (sec. 485); that the judgment-roll does not show that the defendant was arraigned or pleaded. That is true. No arraignment or plea appears in the roll. Section 527 (as amended, chap. 360, Laws 1882) permits the ordering of a new trial, whether or not an exception has been taken. But that is where justice requires it, which it does not in this case. (People v. D'Argencour, 95 N. Y., 624.) We come then to this question: must the court reverse a judgment of conviction on a verdict when the judgment-roll fails to show an arraignment or a plea, while the bill of exceptions shows that the prisoner was present with his counsel and had a fair trial? We think not. We think that the spirit of the Code does not favor and we are sure that courts ought not to favor, technicality.

THIRD DEPARTMENT, NOVEMBER TERM, 1884.

The learned counsel for the defendant has cited many cases in other States holding that the omission of arraignment and plea is sufficient ground for reversal of the judgment. We do not think it necessary to discuss these cases. Decisions of other States are not precedents for us. They are useful to show to what conclusion the minds of able judges have come, and of course they deserve respect. But we are not bound by them. In the absence of any decisions in our own State, directly applicable, we must be governed by our own judgment of the law as stated in the Code, and as illustrated by the broad views given in the opinion in Pierson v. The People. A prisoner should have everything needed to a fair trial. But when he has had such a trial, he should not escape punishment by reason of some omission of some technical proceeding, which, if not omitted, would have done him no good.

The judgment and conviction should be affirmed.

Present-LEARNED, P. J., BOCKES and LANDON, JJ.
Judgment and conviction affirmed.

Reformation of a written contract-the evidence of a mistake must be clear and

unquestionable.

In order to justify the reformation of a policy of insurance issued by a company,
upon the ground that by mistake it does not conform to the agreement made
by the parties to it, the evidence establishing the mistake must be unquestion-
able. It must be so clear and convincing as to leave no room for doubt.
This rule was applied in this case, and a judgment, entered upon the verdict of a
jury, reforming a policy of insurance issued by the defendant to the plaintiff,
and allowing him to recover upon the policy as so reformed, was set aside
upon the ground that the evidence was insufficient to entitle him to the relief
sought.

APPEAL from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

THIRD DEPARTMENT, NOVEMBER TERM, 1884.

This action was brought to reform a policy of insurance issued by defendant and when reformed to recover damages for a loss sustained to the property insured. The plaintiff was the owner of the property. On the 8th day of April, 1881, the defendant issued and delivered to him a policy of insurance by which it insured "John H. Miller against loss or damage by fire" on the stock in trade, etc., "loss, if any, payable to John H. Miller as his interest in equity may appear." The plaintiff claims that he made a bargain with one Stowell, agent of the defendant, for insurance, and that by mutual mistake the name of John H. Miller was written, or rather that this was done by Stowell's mistake and that he did not notice the error. The issue was submitted to the jury and they found that the agreement was that the policy should be in plaintiff's

name.

The only witnesses, as to the verbal agreement, were the plaintiff on his behalf, and Stowell for the defendant. Stowell testified positively that the plaintiff said Miller had an interest in the property and that he wanted the policy in the name of the real owners, not in his own name; that he made out the policy and delivered it to him and they read it together and he took it; that in the afternoon the plaintiff came in and said the policy was wrong in saying his goods and his store; that it should be the goods and the store. And also that he wanted the clause "loss if any," etc., as above mentioned inserted, and that these corrections were made. He testified that after the fire the plaintiff said Miller never owned any of the goods, but that he, the plaintiff, had some debts hanging over him and if he had had the policy in his name the creditors would have levied.

On the contrary, the plaintiff testified to facts tending to show that the verbal contract was that the policy should be issued to him, loss payable to Miller, to secure him for borrowed money. The plaintiff admits that he was insolvent; that he did business under his own name as agent, meaning agent for himself; that some ten days before this policy was issued he took out another policy in his name as agent. The fire occurred February 6, 1882. In March, Miller forwarded proofs of loss to the company, and they were returned; and in June the plaintiff sent proofs of loss, and upon non-payment commenced this action.