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Defendant was indicted for mur- manslaughter in the first degree. der in the first degree, in having Defendant's counsel then requested stabbed one McG. with a knife, the court to charge the jury as to

from the effects of which he died. the different grades of manslaugh· The evidence showed that defend- ter-what constitutes manslaugh

ant, deceased and others were ter in the different degrees and dancing and drinking in a grog- the penalty connected therewith. gery. A fight occurred in the The court replied, “I think perhaps street and they all rushed out to I better, rather than to deny that witness or join in it. In the course request, although I don't see the of the fight the blow was given. applicability,” and proceeded to It appeared that, so far as known, read or state the substance of ss defendant and deceased had never 189-193 of the Penal Code. had any previous difficulty or ac- Oscar J. Brown, for applt. quaintance.

Ceylon H. Lewis, Dist. · Atty., In the charge the court fully explained to the jury the crime of Held, Error. It was the duty of murder in the first and second de- the court to decide all questions of grees.

Defeudant's counsel re- law which arose on the trial, and quested him to charge that “When instruct the jury within what crime death is caused in a cruel and un- the evidence and inferences which usual manner and in a heat of pas- the jury were authorized to draw sion, the character of the crime might bring the case. Code Crim. depends upon the intent; and where Pro., S 417; 50 N. Y., 598. The secit is done without intent to cause tions of the statute defining manthe death it is but manslaughter, slaughter were either applicable or and the intent must appear beyond inapplicable to the case. If there a reasonable doubt.” The court was no evidence, or inferences responded that it was a good legal arising from the evidence, which proposition, but he did not see its might bring the case within the applicability in this case. Defend- crime of manslaughter, it was the ant's counsel then requested a right and the duty of the court to charge that if the jury found that so charge. 50 N. Y., 598; 13 Abb., defendant "was not guilty of mur- N. S., 370; 18 Hun, 487; 78 N. Y., der in the first or second degree, 492. But if there was evidence, or but was guilty of a slight and lesser inferences arising from the evigrade of crime, they can find that dence, which might bring the case under the indictment.” The court

The court within the crime of manslaughter, replied, “The rule of law is, that a it was the duty of the court to so party who is indicted for a higher charge and point out the particuoffense may be convicted of any lar facts and states of mind which lesser offense that the evidence the jury must find to have existed satisfies the jury he has been guilty in order to bring the homicide of-any lesser offense in the same within the crime of manslaughter. line of offenses, as in this case, Whart. Crim. Pl., S 709. This the

case.

court failed to do, but instead read crime was murder or manslaughter the sections defining manslaughter, should have been unequivocally preceded by the remark that the submitted to the jury., court did not see the applica- Judgment reversed, and new trial bility of the sections to the granted.

It is impossible to say Opinion by Follett, J.; Hardin, that this direction was harmless to | P.J., and Merwin, J., concur. defendant if he was entitled to have this question submitted to

CONTRACT. EVIDENCE. the jury; indeed it is almost certain that under such a direction the N. Y. SUPREME COURT. GENERAL jury would not consider the case TERM. FOURTH DEPT. in connection with the crime of

William Wilsey, applt., v. John manslaughter. 1 Park., 340; 81 Yourden, respt. N. Y., 360. See also 3 Hun, 357; 60 N. Y., 613.

Decided April, 1885. It is argued that the jury having Where the market value of merchandise at

the place of delivery is controlled by its been properly instructed in respect

market value at a neighboring place, evi. to the crime of murder, and hav

dence of its value at the latter place is ing found defendant guilty of that competent in an action upon breach of crime, they necessarily found that contract to deliver such merchandise. defendant intentionally killed the Appeal from judgment in favor decedent, and thus passed upon of defendant for costs, and from defendant's state of mind and nega- order denying motion for new trial tived the idea that the crime was on the minutes. manslaughter. Logically this po- In May, 1881, defendant owned sition may be technically correct, 200 cords of wood piled on the but unfortunately jurors do not bank of the canal near Boonville, always reason logically, and in which is about forty miles by canal cases of this gravity defendant is from Utica, at which place plainentitled, upon his request, to have tiff resided. Plaintiff purchased the every material issue which may wood for $660, being at the rate of arise out of the evidence presented $3.30 per cord, to be taken where to the jury and affirmatively con- piled in July or August following, sidered by them. 61 Barb., 307;

61 Barb., 307; and paid $10 down. The remainder 1 Park., 310.

was to be paid by drafts drawn on Without calling attention to the plaintiff whenever he chose to draw cases of homicide arising out of the wood. Afterward defendant sudden affrays or mutual combats, sold and delivered the wood to and without intimating that the another purchaser, and this action evidence or the inferences to be

was brought for damages in jusdrawn from it should induce a tice's court, where plaintiff rejury to find as a question of fact a covered a verdict for $150 damverdict of manslaughter, we are ages and four dollars costs. On of the opinion that whether the a new trial in County Court a verdict was rendered for plaintiff Henry F. & James Coupe, for for $10, his motion for a new trial applt. was denied and judgment entered Walter Ballou, for respt. in favor of defendant for costs. Held, That the appeal book not

On the trial in County Court the disclosing the grounds on which only questions litigated were the motion for a new trial was whether a valid contract of sale made, the appeal therefrom prewas entered into, which was de- sents no question for review. 34 cided in plaintiff's favor, and as to Hun, 178. the market value of the wood at The court erred in excluding the the place where piled, which was evidence offered. Upon the breach the place of delivery, defendant of a contract to deliver merchanclaiming that it was worth less than dise sold, ordinarily the measure of the contract price, and hence that damages is the difference between plaintiff sustained no damages. the contract price and its market

Plaintiff testified, without objec- value at the time and place it is to tion, to the value of the wood where be delivered. Usually, when the piled and at Utica, and that the property sold has a market value difference in value between those at the place at which it is to be deplaces was the cost of transporta- | livered, evidence of its market value tion. He also offered to show by elsewhere is incompetent. The one G. the value of the wood at evidence shows that the marUtica, which was excluded. Later ket value of the wood at the place G.was called by defendants and tes- at which it was to be delivered was tified on cross-examination, with controlled by the market value at out objection, that “the market Utica. This made the evidence of price there is governed by the the market value at Utica compemarket price here in Utica, and is tent, and it was error to exclude fixed by freight and wastage.” such evidence; and it was also

Defendant and his witness testi- error to rule that the evidence adfied that the value of the woodmitted on that question was immawhere piled was $3.25 per cord. terial. 66 N. Y., S2; 69 id., 345; 1 On defendant's cross-examination Sedg. Dam., 7th ed., 586, note; 2 he testified that he knew the cost Whart. Ev., $ 1290, and cases cited. of transporting wood from his place It was also error to refuse to perto Utica, and was then asked what mit plaintiff to prove by defendant, it cost, which was excluded. De- upon his cross-examination, that fendant was then asked if the mar- the market value of wood at Utica ket price at his place was governed controlled the market value at his by the market price at Utica, which place. The measure of damages was also excluded.

was the difference between the At the close of the evidence the contract price and the market value court held that the evidence given at the place at which it was to be by plaintiff as to the value of the delivered; but the evidence exwood at Utica was immaterial. cluded was competent to aid the jury in fixing the market value at Held, That an order granting or the place of delivery.

refusing a new trial on the ground Judgment reversed and new of surprise and newly discovered trial ordered, with costs to abide evidence lies in the discretion of event.

the court; and that the Supreme Opinion by Follett, J.; Hardin, Court has no power to review the P.J., and Boardman, J., concur. discretionary orders of the county

court. APPEAL.

Appellant contends that the order

affects a substantial right and is N. Y. SUPREME COURT. GENERAL

therefore appealable under 1312 TERM. FIFTH DEPT.

of the Code. But it appears to be Josephine Myers, respt., v. established beyond doubt that a George S. Riley, applt.

motion of this character is addressDecided April, 1885.

ed to the discretion of the court.

38 N. Y., 42; 96 id., 635. An order of the county court granting or

Orders of the Special Term, aldenying a motion for a new trial on the ground of newly discovered evidence though discretionary, may be rerests in the discretion of the court, and viewed by the General Term, for it is not reviewable by the Supreme Court. is a branch of the same court, and

Appeal from judgment entered the court may review its own upon verdict of the county court orders. But the county court is a and from an order denying a separate and independent tribunal, motion for a new trial on the and it is a fundamental rule governground of surprise and newly dis- ing the review by one tribunal of covered evidence.

the proceedings of another, that The action was brought to re- orders or decisions resting in discover damages for personal injuries cretion are not reviewable. 21 sustained by plaintiff in conse- N. Y., 635. quence of her stepping into a coal It is held that an order of the hole in a sidewalk in front of de- county court referring an action fendant's premises. After verdict upon the ground that the trial rendered for plaintiff and before would involve the examination of entry of judgment, defendant a long account is a discretionary moved for a new trial upon the order; and it appearing that there ground of newly discovered evi- was a long account, the order dence, which the county court de- could not be reviewed in this court, nied, and judgment was entered for the reason that the decisions of upon the verdict. The only point one tribunal resting in discretion argued was, that the county court are not reviewable by another. 30 erred in not granting the motion Hun, 523. In Bowen v. Widmer, for a new trial.

12 W. Dig., 525, the general term of L. F. & J. E. Durand, for the late fourth department decided applt.

that it could not review an order Thomas Raines, for respt. of the county court granting a new

1

trial upon the ground of newly dis- and that in pursuance of such decovered evidence. See, also, 38 N. sign defendant had converted them Y., 42. In 23 Hun, 91, the court to his own use. remarked that it could not review An attachment was issued in orders of the county court which the action, in which the cause of rest solely in the discretion of that action was stated to have been one court, but that the order there in for the wrongful conversion of question did affect a substantial personal property, and by the affright and was appealable.

davit on which the attachment was Judgment and order affirmed. issued a conversion of the goods

Opinion by Haight, J.; Barker, by defendant was also charged. Bradley and Corlett, JJ., concur. A motion was made to vacate

the attachment upon the ground

that none would lie in an action ATTACHMENT.

brought to recover a money judgN. Y. SUPREME COURT. GENERAL ment only as damages for obtainTERM. FIRST DEPT.

ing goods by false representations, Jacob Gladke et al., respts., v.

and assuming that one would lie

under the second cause of action, Moses Maschke, applt.

still none should have been issued Decided March 27, 1885.

upon it on account of its joinder in An action for damages for the conversion the same complaint with a cause of of personal property is within sub. 2 of $ action upon which no attachment 635 of the Code of Civ. Pro., and is one in which plaintiff is entitled to an attach

could have been granted. ment; and the fact that the same com

Alex. Thain, for applt. plaint contains a statement of another Jacob Schwartz, for respt. cause of action, plainly referring to the

Held, That the statement consale of the same goods, for damages for the sale and delivery of the said goods tained in the complaint, inasmuch induced by false and fraudulent repre

as the demand was the same which sentations, will not deprive plaintiff of was referred to in the first as it his right to said attachment.

was in the second subdivision of Appeal from order denying mo- the complaint, presented the case tion to vacate an attachment. of an action for damages for the

The first cause of action stated conversion of personal property, in the complaint was for damages and, within sub. 2 of $ 635 of the sustained by the sale and delivery Code of Civ. Pro., that entitled of goods induced by false and plaintiff to an attachment, inasfraudulent representations. The

The much as the other grounds required complaint also contained a state- by the Code for that purpose were ment of a second cause of action, established by affidavit. 25 Hun, plainly relating to the sale of the 395. . same goods, alleging them to have Wittner v. Von Minden, 27 Hun, been purchased by defendant when 234, criticised. he was insolvent and with the in- Order affirmed. tent and design not to pay for them, Opinion per curiam. Vol. 21-No 12b.

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