shall be no conviction upon the unsupported testimony of the complaining female, and there is no such supporting evidence in this case. In the Tench Case the girl was under the age of consent. There was an attempt to produce evidence tending to show penetration; but the court, analyzing the testimony, found that it did not go to prove the necessary fact, and reversed the conviction.

As in the Seaman Case, the judgment should be reversed. The evidence is certainly of a very questionable character, even in the matters in which it meets the requirements of the law, and upon the essential element of the crime, which I have pointed out, the case is without corroboration.

JENKS, P. J., and RICH, J., concur. HIRSCHBERG, J., concurs in result.

BURR, J. (dissenting). This is an appeal from a judgment of the Supreme Court, sitting in Dutchess County, convicting the defendant of the crime of rape in the second degree, for having perpetrated an act of sexual intercourse with a female not his wife, under the age of 18 years. Penal Law, § 2010. There is no dispute as to the age of the complainant. At the date of the alleged offense she was 17 years and about 9 months old. She testifies that during the month of May-the exact date is not given-she, in company with her sister Jessie, met the defendant and cne Knapp in the streets of Poughkeepsie. Defendant worked in Erts' stables. He hired a horse and wagon, and he and Knapp and the two girls went out for a ride. Complainant testifies that they went around Manchester Bridge, through Titusville, and then toward home. was sitting in the front seat with Kline. Knapp was on the back seat with her sister. Between Manchester and Titusville Kline stopped the horse, asked the complainant to get out, and, when she refused, pulled her out of the wagon, took her over the fence, and then had sexual intercourse with her.

The corroborating testimony consists of evidence of the sister to the effect that they met defendant one night in May, and went to ride; that, when they got to Titusville, defendant stopped the horse, pulled complainant, Mabel Sitzer, out of the wagon, and took her over the fence; that when he pulled her out of the wagon she made an outcry; that after taking her over the fence he remained with her some time, then brought her back, and they got in the wagon and drove on to Poughkeepsie. She testifies that Knapp was holding her in the wagon when Kline pulled her sister out and took her over the fence, and she admits that, while Kline had her sister behind the fence, she was having connection with Knapp in the wagon.

Defendant claims that there is not sufficient corroborating evidence of complainant's testimony. Penal Law, § 2013. I am inclined to think that there is, although it is rather weak. It clearly appears that both complainant, Mabel Sitzer, and her sister Jessie, were wayward girls. They had been sent to the Bedford Reformatory about the 1st of June, two or three weeks after this occurrence. The reason for their commitment is not clearly shown; but from

the cross-examination by defendant's counsel it would appear that the girls, who had been employed in domestic service or working in a factory, had been without a home for some days before their commitment, and were sent to Bedford on a charge of vagrancy. Complainant admits that in the month preceding she had intercourse. with one Frank Seaman, and that Seaman also had intercourse with her sister.

The stopping of the wagon at night in the midst of the drive, asking the complainant to alight, taking her over the fence behind the stone wall, and remaining there for a considerable time, furnished the opportunity for intercourse; and knowing the character of the girl and the surrounding circumstances, in the absence of any other explanation as to the purpose of it, the natural inference would be that the opportunity for intercourse was taken advantage of.

The defendant took the stand in his own behalf. While no presumption can arise against the defendant for failing to take the witness stand, if he does take the stand and testify, such reasonable presumptions as arise from the character of his testimony may be indulged in. He denies several things that the girls did not accuse him of, contradicts them on some unimportant points, and then says: "I never took a ride to Titusville with these girls and Fred Knapp. I never took a ride with these girls."

Their testimony was not that they invited him to ride with them, but that he invited them to ride with him. It is rather significant that he fails to deny that he did have intercourse with the complainant at the time and place specified.

The rule as to corroborating evidence is not always clearly stated. In People v. Grauer, 12 App. Div. 464, 42 N. Y. Supp. 721, the court say:

"The evidence under this section [section 283, subd. 5, of the Penal Code, now section 2013 of the Penal Law] to support that of the female need not be direct. It may be circumstantial. It need not be, in and of itself, convincing or conclusive; but it must be corroborative of the female's evidence." Opportunity is one factor to be considered under such circumstances; inclination is another. As was said in People v. Freeman, 25 App. Div. 583, 50 N. Y. Supp. 984, affirmed 156 N. Y. 694, 50 N. E. 1120:

"An act of adultery on one day does not, of itself alone, furnish adequate evidence of a similar act on a preceding day, for all such relations must have a beginning. But in connection with direct or circumstantial evidence of the antecedent act, subsequent acts of a similar character may, by reason of their close connection with or their natural relation to the antecedent act, have a certain probative value. Acts of illicit intercourse are not apt to be sporadic. They evidence an adulterous disposition in the parties involved, which, upon opportunity, usually results in repetitions of the guilty act."

In People v. Page, 162 N. Y. 272, 56 N. E. 750, the court states: "The rule in such cases is that the corroborative evidence, whether consisting of acts or admissions, must at least be of such a character and quality as tends to prove the guilt of the accused by connecting him with the crime. A corroboration must extend to every material fact essential to constitute the crime."

The material facts here are the age of the girl and the act of sexual intercourse. The age is not a disputed fact. The opportunity for sexual intercourse presented itself when the defendant took the girl from the wagon over the fence and kept her there for some 20 minutes. The inclination to indulge in sexual intercourse on the part of the girl is established by evidence of her wayward character and previous dissolute acts. While not very satisfactory, there is some evidence of corroboration. She stated to her sister, immediately after returning to the wagon that "it hurt her," although defendant had told her "it would not hurt." I think that a jury might well refer this to penetration, accompanying an act of sexual intercourse. "Whether there is any evidence of corroboration in such a case is a question of law for the court." People v. Page, supra. The sufficiency of such corroboration was for the jury, and I have no doubt that they decided correctly.

The only other point raised by the defendant is as to the exclusion of certain written statements made by the complainant and her sister, apparently at the time that they were under arrest at the police station. When the statement of complainant was first offered in evidence and marked for identification, there was no proper foundation laid to admit it by way of impeachment. Afterwards it appeared that she did sign the statement, and the court then said that, if there was anything in the statement which related to the defendant, he would admit it, excluding any statements that might tend to contradict her upon collateral matters as to which she had been examined. Defendant's counsel then seems to have acquiesced in the ruling excluding it, for he made no further offer of it. There is no reference to the defendant in it, and I think that it was inadmissible. With regard to the statement of Jessie Sitzer, the witness, this was not offered in evidence until the close of defendant's case. The court then said:

"Unless it contains something in relation to this defendant and the crime with which he is charged, I will not receive it."

That was a proper ruling as to contradiction upon collateral matters. There is a reference apparently to the occasion when Knapp and the defendant took the girls out in the wagon; but this statement not only does not contradict her, so far as it relates to that occasion, but confirms her testimony.

I think that the judgment should be affirmed.

(152 App. Div. 462.)

PETTIT et al. v. BROOKLYN DEVELOPMENT CO.

(Supreme Court, Appellate Division, Second Department. September 10, 1912.)

VENDOR AND PURCHASER (§ 95*)-CONTRACTS TO

WAIVER.

CONVEY-CONDITIONS

Under a contract to convey on payment by the purchaser of fixed installments, with provision that, on her death before full payment, conveyance should be made to her personal representatives, without further payment, if no installment should at any time have been in arrears more than 30 days, a reserved right to forfeit the contract was waived by the vendor receiving payments from the purchaser after they were in arrears more than 30 days, but right of the personal representatives to a conveyance without full payment, on the purchaser's death, was lost through the delinquency in making payments.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 158-160; Dec. Dig. § 95.*]

Appeal from Trial Term, Kings County.

Action by Wyllys E. Pettit and another, as executors of Lina S. Pettit, against the Brooklyn Development Company. Judgment dismissing the complaint, and plaintiffs appeal. Affirmed.

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

Wm. King Hall, of New York City, for appellants.

Edward M. Grout, of Brooklyn (James F. McKinney, of New York City, on the brief), for respondent.

THOMAS, J. The defendant and one Pettit agreed that the latter would pay presently and by monthly installments named sums until the whole purchase price of land was paid, and that the conveyance should be made to the vendee's heirs or representatives, without further payment in case of her death before the whole sum should have been paid. But such conveyance upon her death was conditioned, among other things, upon this:

"That the payment on said lot shall not at any time have been more than 30 days in arrears."

On two occasions payments were in arrears for more than 30 days, and the default as regards the death provision was not waived, unless by acceptance of the delayed payments. The contract made default in payment of 30 days a ground of forfeiture of the whole contract at the vendor's option, and the abatement of the price at death enforceable only on the condition of performance of things specified with precision. The contract in its entirety was not forfeitable for default, unless the vendor did something equivalent to a re-entry, and acceptance of the belated installment was a waiver of the failure to make this payment. But the right to save the unpaid balance at death was earned only by the performance of the conditions that initiated and continued the right in operation. In the one case, the vendor stipulated to exercise an option to forfeit; in the other, conveyance notwithstanding the unpaid balance rested

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

upon a condition precedent to be performed by the vendee, and no affirmative act or option of the vendor came into play. The land is deemed worth the purchase price, and an inducement to pay it was the ability to have it by prompt payment during life, whether the aggregate sum paid was all or part of that promised. The vendor was not insuring payment on a life, but providing a method which, if observed, would enable the vendee, dying, to transmit the land with the purchase price paid. The failure to earn this right did not end the contract. That survived all forgiven defaults; but the right to the lesser price had its own several conditions, and did not outlive nonperformance.

The contract had this alternative feature: That the price to the vendee, living, was $1,040, if she paid according to the stipulation, or default thereof was not declared; but it was whatever she had paid, if she had performed each one of several named conditions. As already stated, the contract outlived a waived default; but the right to limit payments to the vendee's life was in abrogation of further performance by vendee, and the money to be gained by it could only be earned by doing what the parties agreed should be done for that purpose.

The plaintiff's contention is that the lesser price obtains upon. death, inasmuch as the vendor ventured to accept payments after default. This requires the defendant to forfeit on the first default or submit to convey at the vendee's death. But that was not the agreement, for the parties stipulated that the vendor might, on default, at its option forfeit the contract. It did not undertake that the acceptance of the money would keep the conditional stipulation alive. That was separately treated, and required performance by the vendee.

The judgment should be affirmed, with costs. All concur.

(152 App. Div. 425.)

DANVERS et al. v. SLY et al.

September 10, 1912.)

(Supreme Court, Appellate Division, Second Department. MORTGAGES (§ 594*)—FORECLOSURE-TRANSFER OF JUDGMENT TO JUDGMENT CREDITOR-EXEMPTIONS.

Where a mortgagor averred in his affidavit, in opposition to the motion of a judgment creditor to direct the owner of the judgment of foreclosure to transfer the same to the judgment creditor on payment of the amount found due, that all payments on the price of the mortgaged premises and interest on deferred payments were paid with his pension money, and the owner of the judgment of foreclosure averred in her affidavit that she desired to retain the judgment as an investment, and the facts warranted the inference that, if the land was subject to the judgment creditor's judgment, the value of the mortgagor's equity was sufficient to pay it, and the judgment creditor did not assert his rights for more than seven years after foreclosure, the court should not grant the motion, for the mortgagor ought not to be divested of his rights until the question of his exemption from the lien of the judgment was first determined.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1709-1731; Dec. Dig. § 594.*]

Thomas, J., dissenting.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes