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allegation of performance of the contract by plaintiff in accordance with Code Civ. Proc. § 533, is a sufficient averment that plaintiff, who sent the servant on sales trips, paid the servant's expenses, if so required. 3. Conspiracy 13-Party to conspiracy liable for previous acts of conspirators.

A party entering into a conspiracy makes itself liable for the previous acts of a co-conspirator; hence, where the action was against a corporation and others, the question as to when the corporation was organized is immaterial.

4. Parties 92 (3)-Misjoinder of parties no ground for demurrer.

Code Civ. Proc. § 488, does not recognize misjoinder of parties defendant as ground for demurrer.

Action by the Rosco Trading Company, Incorporated, against Norbert Goldenberg and others. On cross-motions relative to demurrer interposed by defendant Moos and another. Defendants' motion denied, and plaintiff's motion granted, with leave to defendants to withdraw their demurrer and answer.

Everett B. Heymann, of New York City, for plaintiff.

Paul Englander, of New York City, for defendants Moos and American Machinery Syndicate.

GIEGERICH, J. The defendants Moos and American Machinery Syndicate, Incorporated, demur to the complaint upon the grounds of insufficiency, of misjoinder of parties defendant, and of misjoinder of causes of action, in that the complaint attempts to allege two causes of action, based upon conspiracy of the defendants Goldenberg and Moos, acting in concert, and of the defendants Goldenberg and American Machinery Syndicate, Incorporated, acting in concert. Upon the complaint and the demurrer cross-motions are made; the plaintiff moving for an order overruling the demurrer and directing judgment in its favor against the demurring defendants, and those defendants in turn moving for an order sustaining the demurrer and directing judgment in their favor dismissing the complaint.

The complaint alleges that the plaintiff is a domestic corporation, having a department for the exportation of hardware, machinery, and certain other articles, which department, during the times mentioned. in the complaint, was managed by the defendant Goldenberg. It further alleges that, since February, 1919, the defendant American Machinery Syndicate, Incorporated, has been a domestic corporation conducting as part of its business the exportation of hardware, machinery, and other articles of the same general character of the exported articles of the plaintiff. It is also alleged that prior to February, 1919, the defendant Moos transacted, under the name American Machinery Syndicate, the business which in February, 1919, was taken over by the defendant corporation, and that since that date he has been a director and the president and the largest stockholder of that corporation, and actively engaged in its management. It is also alleged that the defendant Goldenberg, during the period complained of, was under contract to devote his entire time and attention to the performance of his duties under his agreement of employment with the

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(182 N.Y.S.)

plaintiff, and during the term of such contract not to accept any other employment, and that the defendant Moos and the defendant corporation had knowledge of the terms of such employment. It is then alleged that, in pursuance of his employment by the plaintiff, the defendant Goldenberg was directed by the plaintiff from time to time. to make trips to Europe at its expense for the purpose of procuring orders for the exportation of the kind of goods above mentioned, and for the purpose of expanding and developing the plaintiff's export department, and that the defendants conspired together to defraud the plaintiff, and to effect a breach of Goldenberg's contract, and to cause financial damage to the plaintiff, both by having Goldenberg transmit to the defendant Moos and the defendant corporation, instead of to the plaintiff, orders for the exportation of such articles, and also by having him entice away the plaintiff's customers and agents, and impair the plaintiff's trade connections, and interfere with the expansion and development of the plaintiff's export department.

The complaint further alleges that thereafter, and in furtherance of and pursuant to said conspiracy, the defendant Goldenberg, unknown to the plaintiff, and during the period of his said employment by the plaintiff, transmitted and procured the transmission of, to the defendant Moos and the defendant corporation, or either of them, a large number of orders for the exportation of the kind of goods above mentioned, which orders were procured by the defendant Goldenberg upon one or more of his aforesaid trips to Europe, which orders aggregated many thousands of dollars, and which orders, in accordance with the terms of his employment by the plaintiff, should have been turned over and transmitted to the plaintiff for filing and execution by it, as was known to the defendants herein, and that the defendant Goldenberg likewise, in furtherance of and pursuant to the said conspiracy, and unknown to the plaintiff, and during the period of his employment by the plaintiff, accepted employment from the other defendants, performed, both in this country and in Europe, continuous and valuable services for them in their aforesaid business, all in direct competition with and to the injury of the plaintiff's business, enticed away plaintiff's customers and agents, impaired plaintiff's trade connections, interfered with the expansion and development of the plaintiff's trade department, received compensation from the other defendants, shared in the profits of the business diverted from the plaintiff, acquired a share or interest in the defendant corporation, and assumed a part in the management of that defendant. It is also alleged that the plaintiff duly performed all the conditions on its part under the agreement of employment mentioned, and was at all times ready, able, and willing to execute the orders referred to, and that if such orders had been sent to the plaintiff for execution it would have realized profits thereon, and, furthermore, that it has lost customers and trade and has been prevented from expanding and developing its department as it otherwise could have done, and a money judgment in the amount of $50,000 is asked for.

[1, 2] The allegation that the plaintiff duly performed all the conditions on its part under the agreement sued upon is expressly author

ized by the Code of Civil Procedure (section 533). As to the defendants' criticism that there is no direct or specific allegation that the plaintiff paid Goldenberg's expenses on the European trips referred to in the complaint, this failure may be admitted without impairing the complaint. If the contract did not require the plaintiff to pay such expenses, then, of course, no allegation of such payment is needed. On the other hand, if such payment was required of the plaintiff then performance is sufficiently alleged by the general averment under section 523 above referred to. Upon the fundamental question of the liability of the demurring defendants for their interference with the rights of the plaintiff as employer under its contract with the defendant Goldenberg, the recent case of Posner v. Jackson, 223 N. Y. 325, 119 N. E. 573, is authority in favor of the plaintiff.

[3] In answer to the defendants' claim that there is a misjoinder of causes of action, the plaintiff argues that there is no allegation that any of the acts complained of were committed before the incorporation of the defendant corporation. I do not think it necessary to pass upon this point, however, because, by subsequently uniting in the conspiracy, the defendant corporation made itself liable for acts previously done by its co-conspirators. Meredith v. Art Metal Const. Co., 97 Misc. Rep. 69, 161 N. Y. Supp. 1, affirmed without opinion 176 App. Div. 949, 162 N. Y. Supp. 1131.

[4] The second ground specified in the demurrer, misjoinder of parties defendant, is not one recognized by the Code of Civil Procedure. Section 488; Fish v. Hose, 59 How. Prac. 238; Barnes v. Blake, 59 Hun, 371, 13 N. Y. Supp. 77; Paxton v. Patterson, 10 N. Y. Supp. 303, 12 N. Y. Supp. 56.1

My conclusion is that none of the grounds of demurrer is well taken, and that the defendants' motion should be denied, and the plaintiff's motion granted, with $10 costs, with leave to the demurring defendants to withdraw their demurrer and answer within 20 days after service of a copy of the order to be entered hereon, with notice of entry thereof and upon payment of such costs.

Settle order on notice.

1Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 58 Hun, 610.

(192 App. Div. 403)

(182 N.Y.S.)

PEOPLE v. KRAUSS.

(Supreme Court, Appellate Division, First Department. June 11, 1920.) 1. Criminal law 1066-Conviction on uncorroborated confession reversed without exception to denial of new trial.

Where the only evidence to sustain conviction is the uncorroborated confession of defendant, judgment of conviction will be reversed, notwithstanding defendant's failure to except to denial of motion for a new trial.

2. Criminal law 535 (1)—Uncorroborated confession insufficient to sustain conviction.

In prosecution for larceny from department store, evidence consisting merely of the testimony of store detective as to defendant's alleged confession, without additional proof that the crime charged had been committed, as required by Code Cr. Proc. § 395, held not to sustain conviction. Appeal from Court of Special Sessions of City of New York. Joseph Krauss was convicted of larceny, and he appeals. Reversed, and new trial ordered.

Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, PAGE, and MERRELL, JJ.

Joseph H. San, of New York City (Joseph W. Ferris, of New York City, on the brief), for appellant.

Edward Swann, Dist. Atty., of New York City (Robert S. Johnstone, of New York City, of counsel, and Robert D. Petty, of New York City, on the brief), for the People.

PAGE, J. The defendant, a boy 17 years of age, was in the employ of Stern Bros., a department store in the borough of Manhattan, city of New York. He was charged with the larceny of a vanity box, alleged to be of the value of $1. The entire evidence given in the case related entirely to a confession alleged to have been made by the defendant, and consisted of the testimony of Eugene Orth, who was a store detective employed by Stern Bros. At the conclusion of the people's case the defendant's counsel moved to dismiss. Upon the denial of the motion the defendant rested, without offering proof, and renewed his motion on the entire case to dismiss the complaint. The court, without formally passing upon this motion, found the defendant guilty; Justice McInerney dissenting and voting to acquit.

[1, 2] The defendant's counsel failed to take an exception to the denial of his motion and to the implied denial by the court's giving judgment. The district attorney makes a point of this failure in his brief, but to my mind this is immaterial, because the conviction is based entirely upon the alleged confession of the defendant, without additional proof that the crime charged had been committed, as required by section 395 of the Code of Criminal Procedure. The law in this state is very clear, and has been thus stated by the Court of Appeals in a more recent case than those cited by the district attorney or counsel for the defendant:

"There must be evidence in addition to the confession to prove the corpus delicti, but when, as in this case, the corpus delicti is proved by independent

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evidence, and the defendant has voluntarily confessed his guilt, a case for the jury is made out. * In this state the statute referred to above [section 395, Code of Criminal Procedure] has put at rest any uncertainty that may have existed upon this subject and codifies the rule that there must be proof in addition to the confession as to the corpus delicti." People v. Roach, 215 N. Y. 592, 600, 109 N. E. 618, 621.

This rule was enforced in this department in People v. Gillman, 161 App. Div. 920, 145 N. Y. Supp. 775, in which the court said:

"Section 395 of the Code of Criminal Procedure provides that the confession of a defendant is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.' To apply that section to this particular case it was necessary, to warrant a conviction, that the fact of the larceny should be proven by evidence aliunde the defendant's coufession. No such proof is shown by the record."

In this latter case it is true that the defendant took the stand and denied both the confession and the commission of the crime; but an examination of the opinion will show that this incident, which might distinguish that case from the case under consideration, was given no effect, and the judgment of conviction was reversed solely upon the ground that there was no proof of the larceny, except the alleged confession of the appellant.

We have examined the cases cited by the district attorney and many of those cited in People v. Brasch, 193 N. Y. 46, 85 N. E. 809, relied upon by the district attorney. But in all those cases there were facts and circumstances proved strongly tending to show the commission of a crime outside the confession. In People v. Brasch, the defendant had been convicted of the murder of his wife, who had died from drowning. There was no proof that she did not jump or fall into the water, and there was no eyewitness to the occurrence; her body was found in the canal; there were no signs of bruises on her body, or other evidence of violence being used toward her. But it was proved that the defendant left certain people and went to the house where his wife was staying, and that they left there together, and that within a short time thereafter the defendant returned to the people whom he had left. It was further shown that he had a motive for killing her, and that his conduct was wholly inconsistent with his wife having been accidentally drowned while in his company, and these additional facts, taken with the confession, were held to be sufficient. But in the case under consideration there is no evidence that a vanity box had been stolen. The witness Orth testified that he had not seen either one of the two packages that he found in the defendant's house before he found them there, and did not see anybody take those two packages, and that the only thing he could tell the court is what the defendant said to him.

In my opinion, the evidence was entirely insufficient, and the judgment of conviction should be reversed, and a new trial ordered. All

concur.

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