its pole or only an easement. We think that all the plaintiff needs or can require for its purposes is an easement for its poles in the street and a right of way for its wires, and that it should not be permitted to take the fee of any land in the street; but that is a matter which can be regulated by the judgment, and the petition should not be dismissed because it asks for more relief than can properly be granted. It does not appear here that the board of trustees, in the exercise of its right to regulate and control the erection of telephone and telegraph poles and wires in the streets, has ever approved the location of the pole and wires at the place in question. Ordinarily, it would seem that it would be better if the exercise of that right should precede the institution of proceedings to condemn, yet, as the consent of such board to the erection of a pole at a particular place or to the erection of wires in a specified way is but a revocable license, and subject at all times to such reasonable changes and regulations as may be made by the municipality, through its properly constituted authorities, we do not think that the failure to show that such consent has been given, is of sufficient moment to stand in the way of proceeding by condemnation to procure the right or easement from the defendant to erect the pole and lines in question in front of her premises. The judgment in the action which this plaintiff brought against West does not, in our opinion, stand in the way of the plaintiff's right to condemn an easement in the street for its purposes. All that case decided was that the plaintiff had no right to maintain its pole and lines in the street in front of this property without the consent of the then owner of the fee, and without acquiring the right so to do in a lawful way, which is altogether a different question from that presented here.

The judgment should be reversed, the referee discharged, and a new trial granted, with costs to the appellant to abide the event. All concur, except HOUGHTON, J., who dissents.

(96 App. Div. 56.)

PEOPLE v. MOORE.

(Supreme Court, Appellate Division, Third Department. June 30, 1904.) 1. WITNESSES-ACCOMPLICE-CROSS-EXAMINATION-STATEMENTS TO ATTORNEY. Where defendant was convicted on the evidence of an accomplice, it was error for the court to refuse to permit such accomplice to be asked on cross-examination whether his attorney told him, if he admitted the offense and told what he knew about defendant, that he would be allowed to plead guilty to a lesser crime, though there was no showing that the witness' attorney had acquired permission from the district attorney to make the promise.

Appeal from Trial Term, Saratoga County.

Loring Moore was convicted of grand larceny in the first degree, and he appeals. Reversed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

John H. Gleason (Edward Hassett, of counsel), for appellant. Horace E. McKnight, Dist. Atty., for respondent.

and 123 New York State Reporter

PARKER, P. J. The defendant was indicted for the crime of grand larceny, and brought to trial at a term of the Saratoga county court. He was convicted upon the evidence of an accomplice, and we are satisfied that such evidence was sufficiently corroborated to warrant a conviction under the provisions of section 399 of the Code of Criminal Procedure. The serious question presented, however, arises upon an exception taken by the defendant's attorney to the exclusion of certain evidence offered by him upon the trial, and which arose in the following manner: The accomplice, Panneton, being upon the stand as a witness, was asked the following questions by the defendant's attorney, to which the following answers and rulings were had, to wit:

"Q. Did you ever say to anybody that Moore was a party to this crime after the commission of the crime, or that Moore had anything to do with it, or that Moore planned this crime or had anything to do with it before its commission? Did you ever, at any time after the commission of this crime, tell anybody that Moore was a party to it or had anything to do with it? A. No. Q. And when is the first time you did say that? A. I don't know just when it is, but it is when I explained to my attorney the whole case. Q. Ever tell the district attorney that? A. Never had no conversation with the district attorney. Q. Did your attorney tell you if you did admit this, and told what you knew about Moore, if anything, that you would be allowed to plead guilty to a lesser crime? (Objected to as calling for a confidential communication between attorney and client.) The Court: Do you propose to connect any statements from Mr. Meigher with the district attorney? Mr. Andrus: We want to show it. The Court: Do you intend to do it in good faith? Mr. Andrus: That is my intention. The Court: Have you any witnesses to testify to that? Mr. Andrus: None whatever. The Court: I will exclude it then. (Exception.)"

The inquiry as to whether the witness was told by his attorney that if he admitted his guilt, and told what he knew about Moore, he would be allowed to plead guilty to a lesser crime, was not obnoxious to the objection that it was a confidential communication between attorney and client, nor does the court seem to have excluded it upon that ground. It was evidently excluded upon the theory that, because his attorney had not acquired permission from the district attorney to make such a promise, it was not a statement which should be allowed to affect the witness' credibility. In this we think the learned court erred. Even though the attorney had no instructions from the public authorities to make such a promise, it is clear that, if made, it may have induced the witness to testify against the defendant, Moore. It cannot be presumed that he gave no credit to his attorney's promise; on the contrary, the presumption is that he would believe what his attorney promised and assumed to know about, and hence that he was testifying under the expectation of gain to himself. And such an expectation very clearly would affect his credibility. Evidence tending to show a personal interest in the witness to testify against the prisoner is clearly competent evidence, and should not be excluded. People v. Christy, 65 Hun, 349, 352, 20 N. Y. Supp. 278; Allen v. State, 10 Ohio St. 287. How far this personal interest in the witness would have affected his credibility with the jury we cannot say. The evidence was competent and material, and affected a substantial right. It

was error, therefore, which we cannot disregard. People v. Strait, 154 N. Y. 165, 171, 47 N. E. 1090.

The judgment must be reversed, and a new trial ordered.

Conviction, order, and judgment of the County Court of Saratoga county reversed and a new trial ordered, and the clerk directed to enter judgment and remit certified copy thereof with the return and decision of this court to such County Court, pursuant to sections 547, 548, of the Code of Criminal Procedure. All concur.

(96 App. Div. 160.)

BLUMENFIELD v. STINE..

(Supreme Court, Appellate Division, Third Department. June 30, 1904.) 1 ACTION FOR FRAUD-ANSWER-SUFFICIENCY.

In an action for damages for alleged fraudulent representations concerning the amount of street assessments, subject to the payment of which plaintiff purchased certain real estate from defendant, defendant, in addition to general denials, served a "separate answer and defense," containing no denial of the fraud alleged in the complaint, but alleging that a contract was entered into between the plaintiff and defendant whereby the defendant agreed to sell to the plaintiff the property in question for a certain sum, subject to street assessments, without limitation as to the amount thereof; that a deed was delivered to plaintiff for the property, subject to all liens and incumbrances thereon for street improvements, without covenant as to the amount; and that the assessments were a matter of public record, and constituted notice to plaintiff. Held, that the answer was insufficient, standing alone, as a separate answer and defense, which it purported to be.

2. SAME-ELEMENTS.

Where a contract was entered into, one of the parties to which made false representations, knowing them to be false, and they were made for the purpose of inducing the other party to enter into the contract, and the latter, believing the representations and relying on them, was induced to enter into the contract, and parted with his money therefor, and was damaged thereby, all the elements are shown to constitute a cause of action for fraud.

Appeal from Special Term, Schenectady County.

Action by Herman Blumenfield against William W. Stine. From an interlocutory judgment for plaintiff, defendant appeals. Affirmed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Horatio G. Glen, for appellant.

Marvin H. Strong, for respondent.

'CHESTER, J. The action is one brought for damages for alleged fraudulent representations concerning the amount of certain street assessments, subject to the payment of which the plaintiff purchased certain premises of the defendant. It is alleged that the assessments were represented by the defendant to be not to exceed $160, when they in fact amounted to $320. The answer, in its first and second paragraphs, contained a general denial of the allegations of the complaint, and in its third paragraph the matters are alleged "as a further and separate answer and defense," which are

and 123 New York State Reporter

demurred to as insufficient in law upon the face thereof. The matters so alleged in this paragraph are but a recital of the evidence, or some of it, which the defendant relies upon in support of his general denial, and, standing alone and admitted to be true, they in no sense amount to a defense. It is alleged that a contract was entered into in writing between the plaintiff and the defendant whereby the latter agreed to sell to the former the premises in question for $375, subject to the street assessments thereon, and that no limitation as to the amount of such assessments was set forth in the contract; also that a deed was subsequently executed and delivered by the defendant to the plaintiff of the premises in question, subject to all liens and incumbrances thereon for street improvements, and without any covenant as to the amount of such liens and incumbrances, which the plaintiff therein assumed and agreed to pay. It is also alleged that the assessments were a matter of public record, open to the inspection of the plaintiff, and constituted notice of the amount of the assessments on the premises at the time such contract and deed were accepted by him. The paragraph demurred to contains no denial of the fraud alleged in the complaint, which is the gist of the cause of action. It was apparently inserted in the answer because of the doubt which the pleader entertained as to whether the matters alleged would be admissible in evidence under the general denial contained in the first and second paragraphs of the answer, but it is quite as apparent that the plaintiff could not prove the bargain and deed alleged in the complaint without himself putting in evidence both the contract to sell and the deed alleged in this paragraph, and that he would have to resort to the official records of the assessments to show that they are larger than he claimed the defendant represented them to be. So the question as to whether these matters can be proven under the general issue is of little moment. If, however, the plaintiff can discover a way of proving the allegations of his complaint without himself offering these documents and records. in evidence, I entertain no doubt that they would be competent to be received in evidence upon the offer of the defendant under his general denial, as supporting or tending to support his theory that the plaintiff knew or ought to have known of the exact truth concerning the amount of the assessments before the delivery of the deed to him. But standing alone, the matters alleged in the paragraph demurred to are insufficient in law as a separate answer and defense, for the reason that they may all be true, and still the fraud alleged in the complaint, which is the main issue to be determined, is in no way controverted or defended against by reason of them. In order to save his pleading, the defendant urges that the complaint is insufficient; but an examination of that shows that it contains all the elements required, and states a good cause of action for fraud. It alleges the contract to purchase between the parties; that the defendant made certain false representations to the plaintiff, which were known to the defendant to be false, and that they were made for the purpose of inducing plaintiff to enter into the bargain, and that the plaintiff believed such representations, and,

relying upon them, was induced to enter into the bargain to purchase the real estate in question, and parted with his money therefor; and that he was damaged by reason thereof.

The judgment should be affirmed, with costs, with leave to plead

anew.

(44 Misc. Rep. 122.)

PEOPLE ex rel. STEIN v. CRANE, City Magistrate, et al.

(Supreme Court, Special Term, Kings County. June 25, 1904.)

1. MAGISTRATES-JURISDICTION-COMMON PROSTITUTE-SENTENCE TO REFORMA

TORY.

New York City Charter, Consol. Act, Laws 1882, p. 366, c. 410, § 1458, gives a magistrate jurisdiction to require a common prostitute to give bond for good behavior, or to impose a small fine; and Laws 1896, p. 511, c. 546, as amended by Laws 1904, c. 453, provides that a woman convicted of being a common prostitute may be sentenced to the reformatory for women. Cr. Code, § 887, provides that a common prostitute, who has no lawful employment whereby to maintain herself, is a vagrant. Held, that when no charge of vagrancy is made a magistrate has no authority to sentence a woman to the reformatory on a charge of being a common prostitute.

Habeas corpus and certiorari in aid thereof on the relation of Annie Stein to secure her release from the State Reformatory. Relator discharged.

Leonard A. Snitkin, for relator.

William Travers Jerome, for respondents.

KELLY, J. The relator is brought before the court on writs of habeas corpus and certiorari to inquire into the cause of her imprisonment in the State Reformatory at Bedford. The superintendent of the reformatory makes return that she is held under a commitment signed by a city magistrate in the borough of Manhattan, in the city of New York, and from a copy of the commitment attached. to the return it appears that the magistrate certifies that on June 10, 1904, the relator was brought before him charged with having been. on that day a common prostitute; that she was arraigned before him; that she pleaded not guilty to the charge; that he, the magistrate, thereupon proceeded to try her; that on the conclusion of the trial he convicted her, and adjudged her guilty of the charge made against her; and, it appearing that she was not insane, nor mentally or physically incapable of being benefited by the discipline of the State Reformatory, he thereupon sentenced her to the State Reformatory for a term not to exceed three years, with a provision that she might be sooner paroled or discharged, pursuant to the provisions of chapter 546, p. 511, Laws 1896, as amended by chapter 453, Laws 1904. No testimony or record of the proceedings which resulted in the summary conviction and sentence of the relator to imprisonment for three years is returned in obedience to the writ of certiorari directed to the magistrate. He submits a return consisting of a partially filled blank certifying that the relator was brought before him. on the day stated, charged by a police officer in Manhattan with be