Defendant was indicted for murder in the first degree, in having stabbed one McG. with a knife, from the effects of which he died. The evidence showed that defendant, deceased and others were dancing and drinking in a groggery. A fight occurred in the street and they all rushed out to witness or join in it. In the course of the fight the blow was given. It appeared that, so far as known, defendant and deceased had never had any previous difficulty or acquaintance. In the charge the court fully explained to the jury the crime of murder in the first and second degrees. Defendant's counsel requested him to charge that "When death is caused in a cruel and unusual manner and in a heat of passion, the character of the crime depends upon the intent; and where it is done without intent to cause the death it is but manslaughter, and the intent must appear beyond a reasonable doubt." The court responded that it was a good legal proposition, but he did not see its applicability in this case. Defendant's counsel then requested a charge that if the jury found that defendant "was not guilty of murder in the first or second degree, but was guilty of a slight and lesser grade of crime, they can find that under the indictment." The court replied, "The rule of law is, that a party who is indicted for a higher offense may be convicted of any lesser offense that the evidence satisfies the jury he has been guilty of any lesser offense in the same line of offenses, as in this case, Oscar J. Brown, for applt. Ceylon H. Lewis, Dist. Atty., for respts. Held, Error. It was the duty of the court to decide all questions of law which arose on the trial, and instruct the jury within what crime the evidence and inferences which the jury were authorized to draw might bring the case. Code Crim. Pro., § 417; 50 N. Y., 598. The sections of the statute defining manslaughter were either applicable or inapplicable to the case. If there was no evidence, or inferences arising from the evidence, which might bring the case within the crime of manslaughter, it was the right and the duty of the court to so charge. 50 N. Y., 598; 13 Abb., N. S., 370; 18 Hun, 487; 78 N. Y., 492. But if there was evidence, or inferences arising from the evidence, which might bring the case within the crime of manslaughter, it was the duty of the court to so charge and point out the particular facts and states of mind which the jury must find to have existed in order to bring the homicide within the crime of manslaughter. Whart. Crim. Pl.. $ 709. This the court failed to do, but instead read the sections defining manslaughter, preceded by the remark that the court did not see the applicability of the sections to the case. It is impossible to say that this direction was harmless to defendant if he was entitled to have this question submitted to the jury; indeed it is almost certain that under such a direction the jury would not consider the case in connection with the crime of manslaughter. 1 Park., 340; 81 N. Y., 360. See also 3 Hun, 357; 60 N. Y., 643. It is argued that the jury having been properly instructed in respect to the crime of murder, and having found defendant guilty of that crime, they necessarily found that defendant intentionally killed the decedent, and thus passed upon defendant's state of mind and negatived the idea that the crime was manslaughter. Logically this position may be technically correct, but unfortunately jurors do not always reason logically, and in cases of this gravity defendant is entitled, upon his request, to have every material issue which may arise out of the evidence presented to the jury and affirmatively considered by them. 61 Barb., 307; 1 Park., 340. Without calling attention to the cases of homicide arising out of sudden affrays or mutual combats, and without intimating that the evidence or the inferences to be drawn from it should induce a jury to find as a question of fact a verdict of manslaughter, we are of the opinion that whether the TERM. FOURTH DEPT. William Wilsey, applt., v. John Yourden, respt. · Decided April, 1885. Where the market value of merchandise at the place of delivery is controlled by its market value at a neighboring place, evidence of its value at the latter place is competent in an action upon breach of contract to deliver such merchandise. Appeal from judgment in favor of defendant for costs, and from order denying motion for new trial on the minutes. In May, 1881, defendant owned 200 cords of wood piled on the bank of the canal near Boonville, which is about forty miles by canal from Utica, at which place plaintiff resided. Plaintiff purchased the wood for $660, being at the rate of $3.30 per cord, to be taken where piled in July or August following, and paid $10 down. The remainder was to be paid by drafts drawn on plaintiff whenever he chose to draw the wood. Afterward defendant sold and delivered the wood to another purchaser, and this action was brought for damages in justice's court, where plaintiff recovered a verdict for $150 damages and four dollars costs. On a new trial in County Court a verdict was rendered for plaintiff for $10, his motion for a new trial was denied and judgment entered in favor of defendant for costs. On the trial in County Court the only questions litigated were whether a valid contract of sale was entered into, which was decided in plaintiff's favor, and as to the market value of the wood at the place where piled, which was the place of delivery, defendant claiming that it was worth less than the contract price, and hence that plaintiff sustained no damages. Plaintiff testified, without objection, to the value of the wood where piled and at Utica, and that the difference in value between those places was the cost of transportation. He also offered to show by one G. the value of the wood at Utica, which was excluded. Later G. was called by defendants and testified on cross-examination, without objection, that "the market price there is governed by the market price here in Utica, and is fixed by freight and wastage." Defendant and his witness testified that the value of the wood where piled was $3.25 per cord. On defendant's cross-examination he testified that he knew the cost of transporting wood from his place to Utica, and was then asked what it cost, which was excluded. Defendant was then asked if the market price at his place was governed by the market price at Utica, which was also excluded. At the close of the evidence the court held that the evidence given by plaintiff as to the value of the wood at Utica was immaterial. Henry F. & James Coupe, for applt. Walter Ballou, for respt. Held, That the appeal book not disclosing the grounds on which the motion for a new trial was made, the appeal therefrom presents no question for review. 34 Hun, 178. The court erred in excluding the evidence offered. Upon the breach of a contract to deliver merchandise sold, ordinarily the measure of damages is the difference between the contract price and its market value at the time and place it is to be delivered. Usually, when the property sold has a market value at the place at which it is to be delivered, evidence of its market value elsewhere is incompetent. The evidence shows that the market value of the wood at the place at which it was to be delivered was controlled by the market value at Utica. This made the evidence of the market value at Utica competent, and it was error to exclude such evidence; and it was also error to rule that the evidence admitted on that question was immaterial. 66 N. Y., 82; 69 id., 348; 1 Sedg. Dam., 7th ed., 586, note; 2 Whart. Ev., § 1290, and cases cited. It was also error to refuse to permit plaintiff to prove by defendant, upon his cross-examination, that the market value of wood at Utica controlled the market value at his place. The measure of damages was the difference between the contract price and the market value at the place at which it was to be delivered; but the evidence excluded was competent to aid the TERM. FIFth Dept. Josephine Myers, respt., v. George S. Riley, applt. Decided April, 1885. An order of the county court granting or denying a motion for a new trial on the ground of newly discovered evidence rests in the discretion of the court, and is not reviewable by the Supreme Court. Appeal from judgment entered upon verdict of the county court and from an order denying a motion for a new trial on the ground of surprise and newly discovered evidence. The action was brought to recover damages for personal injuries sustained by plaintiff in consequence of her stepping into a coal hole in a sidewalk in front of defendant's premises. After verdict rendered for plaintiff and before entry of judgment, defendant moved for a new trial upon the ground of newly discovered evidence, which the county court denied, and judgment was entered upon the verdict. The only point argued was, that the county court erred in not granting the motion for a new trial. L. F. & J. E. Durand, for applt. Thomas Raines, for respt. Held, That an order granting or refusing a new trial on the ground of surprise and newly discovered evidence lies in the discretion of the court; and that the Supreme Court has no power to review the discretionary orders of the county court. Appellant contends that the order affects a substantial right and is therefore appealable under 1342 of the Code. But it appears to be established beyond doubt that a motion of this character is addressed to the discretion of the court. 38 N. Y., 42; 96 id., 635. Orders of the Special Term, although discretionary, may be reviewed by the General Term, for it is a branch of the same court, and the court may review its own orders. But the county court is a separate and independent tribunal, and it is a fundamental rule governing the review by one tribunal of the proceedings of another, that orders or decisions resting in discretion are not reviewable. N. Y., 635. 24 It is held that an order of the county court referring an action upon the ground that the trial would involve the examination of a long account is a discretionary order; and it appearing that there was a long account, the order could not be reviewed in this court, for the reason that the decisions of one tribunal resting in discretion are not reviewable by another. 30 Hun, 523. In Bowen v. Widmer, 12 W. Dig., 525, the general term of the late fourth department decided that it could not review an order of the county court granting a new TERM. FIRST DEPT. Jacob Gladke et al., respts., v. Moses Maschke, applt. Decided March 27, 1885. An action for damages for the conversion of personal property is within sub. 2 of § 635 of the Code of Civ. Pro., and is one in which plaintiff is entitled to an attachment; and the fact that the same complaint contains a statement of another cause of action, plainly referring to the sale of the same goods, for damages for the sale and delivery of the said goods induced by false and fraudulent representations, will not deprive plaintiff of his right to said attachment. Appeal from order denying motion to vacate an attachment. The first cause of action stated in the complaint was for damages sustained by the sale and delivery of goods induced by false and fraudulent representations. The complaint also contained a statement of a second cause of action, plainly relating to the sale of the same goods, alleging them to have been purchased by defendant when he was insolvent and with the intent and design not to pay for them, Vol. 21-No 12b. and that in pursuance of such design defendant had converted them to his own use. An attachment was issued in the action, in which the cause of action was stated to have been one for the for the wrongful conversion of personal property, and by the affidavit on which the attachment was issued a conversion of the goods by defendant was also charged. A motion was made to vacate the attachment upon the ground that none would lie in an action brought to recover a money judgment only as damages for obtaining goods by false representations, and assuming that one would lie under the second cause of action, still none should have been issued upon it on account of its joinder in the same complaint with a cause of action upon which no attachment could have been granted. Alex. Thain, for applt. Jacob Schwartz, for respt. Held, That the statement contained in the complaint, inasmuch as the demand was the same which was referred to in the first as it was in the second subdivision of the complaint, presented the caseof an action for damages for the conversion of personal property, and, within sub. 2 of § 635 of the Code of Civ. Pro., that entitled plaintiff to an attachment, inasmuch as the other grounds required by the Code for that purpose were established by affidavit. 25 Hun, 395. Wittner v. Von Minden, 27 Hun, 234, criticised. Order affirmed. |