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part of the United States or Canada, except Arizona, may come up for construction if any action is brought on it; but, in view of the state of the law (see Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464; Nat. Wall Paper Co. v. Hobbs, 90 Hun, 288, 35 N. Y. Supp. 752), there is no need of discussion on this point. It is contended that the contracts are void, because their tendency is to monopolize and restrain trade. The papers of the moving party, referring to the defendant and these transactions, frequently use the terms "combination," "scheme," "conspiracy, "fraudulent arrangement,” and the like; but I have searched for specific allegations which would justify the sinister meaning evidently intended to be given to them without avail.

[4] A corporation cannot be said to be illegal, unless it is shown that the end it obviously has in view is illegal or the means whereby it proposes to attain that end is illegal. This is merely the general test prescribed by a sound morality. If either of these conditions is manifest, the corporation is illegal; but the fact that such a corporation may be used for illegal purposes, or could be used for such, is not necessarily any proof of its illegality. Such a contention is based on the old argument drawn from the abuse of a thing.

[5] Merely characterizing the persons associating together a combination alleges no wrong, because a combination of interests is not necessarily unlawful. To say that their negotiations, either before or after formation into one body, is a conspiracy, is not sufficient to establish even an inference of unlawful purpose or of unlawful act. Nor is the mere possibility of an abuse of power sufficient ground to claim that the existence of the body threatens the public with a monopoly or an unlawful restraint of trade. Not every restraint of trade is illegal. A combination designed to promote the interest of a certain trade, to diminish waste, to give better service, to extend business, and to secure better prices is not necessarily violative of the law either in the end in view or the means of attaining it. That it might be or become so is another question, to be shown by other facts; and no such facts, in my opinion, are clearly shown in the moving papers herein.

[6] There is, however, another important phase in this case. The iniquity of this combination does not appear to have been raised until after the plaintiff deemed it advisable to withdraw and to render everything done, as far as it could do so, nugatory. But if we take the statement of Bauman, who acted for the plaintiff, this was not the first time that such a suggestion came to him. He says that in their initial conference, preceding the making of several written contracts, the attorney "stated in my hearing that it would be unsafe to put the said contract in writing, as it might later be used as proof of an illegal trade combination; but that we had better put portions only in writing, and trust one another to keep the unwritten part of the contract.” This statement he immediately supplements with the avowal that “since this attorney was acting for me in a legal capacity, as much as for any of the others, I did not consult any other attorney at any time, but placed my implicit faith in

him." Whether it was contentment or supineness which prevented any action on the part of the affiant at that time does not appear; but if his now quickened conscience had stirred 'him at all, he would have abandoned his implicit faith in counsel there and then, and the plaintiff might have been spared the necessity of this litigation altogether. I am not determining this case now; but as an element in the consideration of this motion it may be well to keep in mind the requirement that he who comes into a court of equity must come with clean hands. The attorney in question denies having ever made such a statement, but whether he did or not is immaterial now. The combination, as stated above, would have to be shown to be illegal, and the dread of an attorney that the corporation was or might later be determined to be illegal would have no weight. If it was not illegal, the one thinking otherwise, and wishing notwithstanding to pursue its purposes, would be in a bad state of conscience; but the existing conditions would be unaffected by that. Bornmann v. Star Co., 174 N. Y. 212, 66 N. E. 723; Park & Sons Co. v. Nat. Druggists Ass'n, 175 N. Y. 20, 67 N. E. 136, 62 L. R. A. 623, 96 Am. St. Rep. 578.

There appears to be no further need to discuss this motion. It is plain to me that, apart from other considerations, plaintiff has not shown in its moving papers such a clear right to the relief sought pendente lite as would warrant this court to intervene in behalf with injunctions, which would in all likelihood do irreparable injury to the defendant.

Motion denied, with $10 costs.

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(Supreme Court, Appellate Division, Second Department. September 10, 1912.) 1. RECEIVING STOLEN GOODS ($ 8*)-EVIDENCE.

Evidence held to justify & conviction of receiving stolen goods.
[Ed. Note. For other cases, see Receiving Stolen Goods, Cent. Dig. 88

15-18; Dec. Dig. $ 8.*]
2. CRIMINAL LAW (8 1137*)-APPEAL-RIGHT TO ALLEGE ERROR.

Accused could not complain of the use the jury was permitted to make of defendant's conviction of another offense, where his counsel objected to a correction at the instance of the district attorney.

[Ed. Noté.-For other cases, see Criminal Law, Cent. Dig. $$ 3007

3010; Dec. Dig. $ 1137.*] 3. WITNESSES (8 323*)—IMPEACHMENT.

A witness for the people having evinced no hostile disposition, evidence of what the witness told the district attorney and concerning conversations between the witness and police officers was inadmissible, over defendant's objection.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1096 ; Dec.

Dig. § 323.*] 4. WITNESSES (8 366*)-INDUCEMENT TO TESTIFY-DURESS.

Where, in a prosecution for receiving stolen goods, one of the people's witnesses was shown to have been indicted for receiving from defendant *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the stolen goods knowing of the larceny, it was improper to preclude defendant from sbowing why the indictment of the witness had not been tried, in order that he might show, if he could, under what inducement or duress the witness was testifying.

{Ed. Note.—For other cases, see Witnesses, Cent. Dig. $ 1183; Dec. Dig.

§ 366.*] 8. CRIMINAL LAW (8 720*)-EVIDENCE-TRIAL-STATEMENT BY DISTRICT AT

TORNEY.

Where, in a prosecution for receiving stolen goods, the proof of defendant's guilty knowledge was scant, and the chief witness for the people had been indicted for receiving from defendant the stolen goods, knowing of the larceny, it was error for the district attorney, during the examination of the witness, to state to the court: "We had to indict him and bring him to trial to get any information at all."

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 1670, 1671; Dec. Dig. § 720.*] 6. RECEIVING STOLEN Goods (8 8*)-EVIDENCE.

Where, in a prosecution for receiving stolen goods, consisting of certain new Jenkins valves, the people showed that such valves were not bought and sold by the pound, as it was proved defendant sold the valves in question, defendant's evidence that there were metal dealers in Manhattan and elsewhere that dealt in such valves was not objectionable, as cumulative, but was admissible.

[Ed. Note.—For other cases, see Receiving Stolen Goods, Cent. Dig. &$ 15–18; Dec. Dig. § 8.*] Appeal from Kings County Court.

Philip Goldfarb was convicted of receiving stolen property, and he appeals. Reversed, and new trial ordered.

Argued before HIRSCHBERG, BURR, THOMAS, CARR, and RICH, JJ.

Martin T. Manton, of Brooklyn (Benjamin M. Levy, of New York City, on the brief), for appellant.

James C. Cropsey, Dist. Atty., of Brooklyn (Herbert N. Warbasse and Hersey Egginton, Asst. Dist. Attys., both of Brooklyn, on the brief), for the People.

THOMAS, J. [1] The question is whether defendant, a dealer in old metal, was legally convicted of receiving on or about August 10, 1908, stolen brass valves, knowing that they had been stolen. Jacobs, whose store was 274 South Ninth street, Brooklyn, had a large quantity of such goods, and in August and later they were stolen, and the evidence amply shows that one Fein, a plumber, occupying a basement at No. 272 South Ninth street, and a wood or coal bin in the basement of No. 270, made an entrance into the cellar of Jacobs' building and stole the valves. The defendant admits that his wagon took metal in bags and loose from Fein's basement, although he denies that any new valves were included; but a person living in the building saw valves protruding from the bags. Fein was a tenant in defendant's building, which was subject to a mortgage for borrowed money and owned by Fein, and checks were introduced indicating payments by each to the other, which defendant stated were given for payments on the mortgage, or in *For other cases see same topic & $ NUMBER IN Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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connection with it. A large number of new brass valves were on three occasions in August sold by defendant to one Watson at 13 cents per pound, which was their market value as old metal or junk, Dut a relatively small portion of their value as new and usable material. These valves were in a large number taken by the police, and were found to be similar in style and make to those lost by Jacobs, and some of them were identified as Jacobs' valves by remembered and identifying defects. The evidence, carefully considered, sustains the finding that the valves were stolen by Fein from Jacobs, received by defendant, and sold to Watson.

But did the defendant know of the guilty possession of Fein? This question must be studied with care and answered with caution. Defendant and Fein were friends, and they lived in the same house. They had association in business transactions. Defendant's driver took the metal from Fein's basement. Defendant sold it, and is presumed to know what he sold, and that the large quantity of valuable valves, unused, apparently, were sold as raw material. He admitted that he had sold material to Watson, but denied that new valves were included. So he admittedly bought material of Fein, which was taken always in full day, with but one number intervening between the place of reception and the place of larceny. He sold and delivered openly. He admitted upon arrest sale of metals, but denied sale of new valves. If he knew that he sold this large number of new valves, his denial indicated concealment of guilty knowledge. But how could he but know that he had purchased, possessed, and sold so many new valves, some of them unwrapped? He dealt in plumbing supplies, including valves. Hence he could distinguish the new from the old; those suited for their primary purposes from those abandoned for sale as old or defective material; what was salable per item from those salable only per pound. There was evidence to sustain the conviction, but it is no more than sufficient. Hence the reception of the evidence and submission to the jury must be examined carefully, lest some error prejudiced the defendant.

[2] The appellant could complain of the use the jury was permitted to make of defendant's conviction of another offense, had not the defendant's counsel objected to the correction at the instance of the district attorney.

[3] But proof over defendant's objection of what the witness Watson had told the district attorney was justified by no apparent hostile disposition of the witness, and admission of the conversation between the witness and the police officers was equally incompetent, and I in vain seek justification for the question that Watson had declined to testify elsewhere on the ground that his evidence might tend to incriminate him, and that as a result of a conference at the district attorney's office the witness told the entire transaction between himself and Goldfarb and everything relating to these valves. Then he was asked whether as a result an indictment was found against Goldfarb. That question he did not answer, and the evidence respecting his appearance before the grand jury was not un

der objection and exception by the defendant's counsel, theretofore unsuccessful in his attempts to stem the tide of such inquiry.

[4] But when the defendant's counsel sought to show why the indictment of the witness was not tried, he was precluded, although it might have shown under what inducement or duress Watson was testifying. So the people's witness was presented to the jury as a person accused by indictment of receiving from defendant these stolen goods, knowing of the larceny. There was no propriety in bringing in the extrajudicial matters. The witness had at one time bought some valves at auction, he stated, but he had fully explained that he had made the purchase of defendant; but his alleged fault indicating hostility was in not knowing definitely whether the valves sold one O'Brien came from that source.

[5] It was upon this that the district attorney advised the court that "we had to indict him and bring him to trial, to get any information at all.” The evidence of the people on the subject of the defendant's guilty knowledge was too scant to permit such prejudicial statement, and conversation between witness Watson and the prosecuting officials and police officer.

[6] There was other manifest error. The people showed that such valves were not bought and sold by the pound, and yet, when the defendant sought to show that there were metal dealers in Manhattan and elsewhere that dealt in Jenkins valves, he was precluded. It is no answer to show that the evidence was cumulative. It was an important consideration, and one that must have weighed heavily against the defendant in the minds of the jurors, that new Jenkins valves were sold as raw metal by the pound. A man in Jenkins Bros.' employment over defendant's legal protest was allowed to testify that he had never heard of these valves being sold by the pound save in the present case.

But the defendant was not suffered to make counter proof. One ruling was error, and that was made against the defendant.

The judgment of conviction should be reversed, and a new trial ordered. All concur.

(152 App. Div. 433.)

WOJTCZAK V. AMERICAN MFG. CO. (Supreme Court, Appellate Division, Second Department. September 10, 1912.) PLEADING (8 317*)-BILL OF PARTICULAR8—NEGLIGENCE.

Where, in an action for injuries to a servant, negligence was alleged in the use, management, control, and operation of a machine at which plaintiff was employed, which rendered the same dangerous, and also in that defendant failed to instruct plaintiff in the operation of the machine, in order that the same might be used and controlled with safety, defendant was entitled to a bill of particulars stating in what respects the use, management, control, and operation of the machine was dangerous, and as to what instruction was required.

(Ed. Note.--For other cases, see Pleading, Cent. Dig. 88 954-962; Dec, Dig. § 317.*)

Jenks, P. J., and Burr, J., dissenting in part. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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