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the meaning of section 18 of the labor law (Laws 1897, p. 467, c. 415), and that the scaffold upon which he was at work was not such a scaffold as was contemplated by the provisions of that act. We have examined the record, but fail to find any exception that raises either of these questions. At the conclusion of the plaintiff's evidence the defendants moved for a dismissal of the complaint upon the grounds that the plaintiff had failed to show negligence on the part of the defendants, or his freedom from contributory negligence. But neither by motion nor request to charge does it appear that the court was requested to hold that the scow was not a "structure" within the meaning of the statute, or that the "scaffold" was not one contemplated by its provisions. We therefore We therefore think that neither of these questions argued in this court are presented by the record. The case appears to have been defended upon the theory of contributory negligence on the part of the plaintiff. That issue was submitted to the jury, and the verdict found thereon has, as we have seen, been unanimously affirmed, which, under the provisions of the Constitution, precludes this court from the consideration of the question as to whether there was evidence sufficient to sustain the verdict upon that issue.

Our attention has been called to two exceptions taken to the charge of the court. The first is as follows: "Now, about the only question outside of the plaintiff's own negligence is, was the defendant negligent in furnishing and supplying the plaintiff with a scaffold which was unsafe and improper and unsuitable, and did not afford protection to life or limb? The defendants are absolutely commanded by the statute to supply workmen with this sort of apparatus; it is their duty to do it. They have no excuses to offer, and there are none which they can invoke." It may be that, under a strict grammatical construction of the charge, "this sort of apparatus" would refer to the unsafe and improper scaffold referred to in the sentence preceding. But, of course, this is not what the judge intended. The duty of the defendants, under the stat ute, was to supply their workmen with a safe and proper scaffold, not an unsafe and improper one, and we cannot conceive it possible that the jury could have been misled with reference to that provision of the statute. The judge, continuing in his charge, referring to the defendants, says: "They have no excuses to offer, and there are none which they can invoke." In other words, as we understand, no excuse has been offered in the evidence by the defendants, and consequently there is none which they then could invoke before the jury. As thus limited and applied to the facts of this case, we think that the concluding sentence does not furnish grounds for a reversal. Although the court had stated the

duty of the defendants under the statute, the plaintiff's counsel apparently was not content, and so he endeavored to formulate a charge upon the subject by requesting the court to charge "that it makes no difference in this case in applying the labor statute to this cause of action, whether the defendants themselves erected or caused to be made this scaffold, if by their direction any one else made it." The court answered: "That is only so far as it goes to the question of contributory negligence." To which the plaintiff's counsel replied: "Exactly." Just what is meant by this is not very clear. "It makes no difference" as to what? The request does not state. Inasmuch as it was made by the plaintiff's counsel, we presume the the difference he referred to was as to the right of the plaintiff to recover, otherwise it is without point. The balance of the request pertains to the acts of the defendants in erecting, or ordering to be erected, a scaffold, and seems to relate to their duty and not to that of the plaintiff. But under the query of the court with reference to contributory negligence the answer of the plaintiff's counsel "exactly" indicates that it was intended to refer to the contributory negligence of the plaintiff, and, if so, it might make a considerable difference with the right of the plaintiff to recover, provided that a scaffold should be erected by the direction of the defendants by the plaintiff himself, who, at the time, fully understood the quality of the material used for that purpose. But no ruling appears to have been made by the court further than the query to which we have referred, and thereupon the defendants' counsel asked the court to charge in that connection "that if the master directed the plaintiff to construct it (referring to the scaffold) the master would not be responsible." This would be so were it not for the defective material supplied. It appears that the plank used as a scaffold broke, causing the injury to the plaintiff complained of. It was the duty of the master to furnish proper and safe material for the construction of the scaffold. It was the duty of the plaintiff, if ordered to construct a scaffold, to construct it in such a manner as to make it safe for him to work upon. It was his duty to use only safe and proper material. If, however, the planks used by him on this occasion were the planks furnished by the defendants, and he did not know at the time of using them that they were unsafe and improper, he would not be chargeable with contributory negligence. We think, therefore, that the request to charge was too broad, and that its refusal does not furnish a ground for a reversal. The judgment should be affirmed, with costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, WERNER, and HISCOCK, JJ., concur. O'BRIEN, J., absent.

Judgment affirmed.

(185 N. Y. 497)

PEOPLE v. JAFFE.

(Court of Appeals of New York. June 21, 1906.)

RECEIVING STOLEN GOODS-ATTEMPTS.

A clerk stole goods from his employer under an agreement to sell them to accused, but before delivery of the goods the theft was discovered and the goods were recovered. Later the employer redelivered the goods to the clerk to sell to accused, who purchased them for about one-half of their value, believing them to have been stolen. Held, that the goods had lost their character as stolen goods at the time defendant purchased them, and that his criminal intent was insufficient to sustain a conviction for an attempt to receive stolen property, knowing it to have been stolen, prohibited by Pen. Code, $ 550.

[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Receiving Stolen Goods, §§ 1, 4.] Chase, J., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Samuel Jaffe was convicted by the Court of General Sessions in and for the county of New York of an attempt to receive stolen property, knowing it to have been stolen, in violation of Pen. Code § 550. From a judg ment of the Appellate Division (98 N. Y. Supp. 486), affirming such conviction, defendant appeals. Reversed.

Henry W. Unger, for appellant. Wm. Travers Jerome, Dist. Atty. (Robert C. Taylor, of counsel), for respondent.

WILLARD BARTLETT, J. The indictment charged that the defendant on the 6th day of October, 1902, in the county of New York, feloniously received 20 yards of cloth, of the value of 25 cents a yard, belonging to the copartnership of J. W. Goddard & Son, knowing that the said property had been feloniously stolen, taken, and carried away from the owners. It was found under section 550 of the Penal Code, which provides that a person who buys or receives any stolen property knowing the same to have been stolen is guilty of criminally receiving such property. The defendant was convicted of an attempt to commit the crime charged in the indictment. The proof clearly showed, and the district attorney conceded upon the trial, that the goods which the defendant attempted to purchase on October 6, 1902, had lost their character as stolen goods at the time when they were offered to the defendant and when he sought to buy them. In fact the property had been restored to the owners and was wholly within their control and was offered to the defendant by their authority and through their agency. The question presented by this appeal, therefore, is whether upon an indictment for receiving goods, knowing them to have been stolen, the defendant may be convicted of an attempt to commit the crime where it appears without dispute that the property which he sought to receive was not in fact stolen property.

The conviction was sustained by the Ap

pellate Division chiefly upon the authority of the numerous cases in which it has been held that one may be convicted of an attempt to commit a crime notwithstanding the existence of facts unknown to him which would have rendered the complete perpetration of the crime itself impossible. Notably among these are what may be called the "Pickpocket Cases," where, in prosecutions for attempts to commit larceny from the person by pocketpicking, it is held not to be necessary to allege or prove that there was anything in the pocket which could be the subject of larceny. Commonwealth v. McDonald, 5 Cush. (Mass.) 365; Rogers v. Commonwealth, 5 Serg. & R. (Pa.) 463; State v. Wilson, 30 Conn. 500; People v. Moran, 123 N. Y. 254, 25 N. E. 412, 10 L. R. A. 109, 20 Am. St. Rep. 732. Much reliance was also placed in the opinion of the learned Appellate Division upon the case of People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741, where a conviction of an attempt to commit the crime of extortion was upheld, although the woman from whom the defendant sought to obtain money by a threat to accuse her of a crime was not induced to pay the money by fear, but was acting at the time as a decoy for the police, and hence could not have been subjected to the influence of fear. In passing upon the question here presented for our determination, it is important to bear in mind precisely what it was that the defendant attempted to do. He simply made an ef fort to purchase certain specific pieces of cloth. He believed the cloth to be stolen property, but it was not such in fact. The purchase, therefore, if it had been completely effected, could not constitute the crime of receiving stolen property, knowing it to be stolen, since there could be no such thing as knowledge on the part of the defendant of a nonexistent fact, although there might be a belief on his part that the fact existed. As Mr. Bishop well says, it is a mere truism that there can be no receiving of stolen goods which have not been stolen. 2 Bishop's New Crim. Law, § 1140. It is equally difficult to perceive how there can be an attempt to receive stolen goods, knowing them to have been stolen, when they have not been stolen in fact.

The crucial distinction between the case before us and the pickpocket cases, and others involving the same principle, lies not in the possibility or impossibility of the commission of the crime, but in the fact that, in the present case, the act, which it was doubtless the intent of the defendant to commit would not have been a crime if it had been consummated. If he had actually paid for the goods which he desired to buy and received them into his possession, he would have committed no offense under section 550 of the Penal Code, because the very definition in that section of the offense of criminally receiving property makes it an essential element of the crime that the accused shall

have known the property to have been stolen or wrongfully appropriated in such a manner as to constitute larceny. This knowledge being a material ingredient of the offense it is manifest that it cannot exist unless the property has in fact been stolen or larcenously appropriated. No man can know that to be so which is not so in truth and in fact. He may believe it to be so but belief is not enough under this statute. In the present case it appeared, not only by the proof, but by the express concession of the prosecuting officer, that the goods which the defendant intended to purchase had lost their character as stolen goods at the time of the proposed transaction. Hence, no matter what was the motive of the defendant, and no matter what he supposed, he could do no act which was intrinsically adapted to the then present successful perpetration of the crime denounced by this section of the Penal Code, because neither he nor any one in the world could know that the property was stolen property inasmuch as it was not, in fact, stolen property. In the pickpocket cases the immediate act which the defendant had in contemplation was an act which, if it could have been carried out, would have been criminal, whereas in the present case the immediate act which the defendant had in contemplation (to wit, the purchase of the goods which were brought to his place for sale) could not have been criminal under the statute even if the purchase had been completed, because the goods had not, in fact, been stolen, but were, at the time when they were offered to him, in the custody and under the control of the true owners.

If all which an accused person intends to do would, if done, constitute no crime, it cannot be a crime to attempt to do with the same purpose a part of the thing intended. 1 Bishop's Crim. Law (7th Ed.) § 747. The crime of which the defendant was convicted necessarily consists of three elements: First, the act; second, the intent; and, third, the knowledge of an existing condition. There was proof tending to establish two of these elements, the first and second, but none to establish the existence of the third. This was knowledge of the stolen character of the property sought to be acquired. There could be no such knowledge. The defendant could not know that the property possessed the character of stolen property when it had not in fact been acquired by theft. The language used by Ruger, Ch. J., in People v. Moran, 123 N. Y. 254, 25 N. E. 412, 10 L. R. A. 109, 20 Am. St. Rep. 732, quoted with approval by Earl, J., in People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741, to the effect that "the question whether an attempt to commit a crime has been made is determinable solely by the condition of the actor's mind and his conduct in the attempted consummation of his design, although accurate in those cases, has no application to a case like this, where, if the

99

accused had completed the act which be attempted to do, he would not be guilty of a criminal offense. A particular belief cannot make that a crime which is not so in the absence of such belief. Take, for example, the case of a young man who attempts to vote, and succeeds in casting his vote under the belief that he is but 20 years of age, when he is in fact over 21 and a qualified voter. His intent to commit a crime, and his belief that he was committing a crime, would not make him guilty of any offense under these circumstances, although the moral turpitude of the transaction, on his part, would be just as great as it would if he were in fact under age. So, also, in the case of a prosecution under the statute of this state, which makes it rape in the second degree for a man to perpetrate an act of sexual intercourse with a female not his wife under the age of 18 years. There could be no conviction if it was established upon the trial that the female was in fact over the age of 18 years, although the defendant believed her to be younger and intended to commit the crime. No matter how reprehensible would be his act in morals, it would not be the act forbidden by this particular statute. "If what a man contemplates doing would not be in law a crime, he could not be said, in point of law, to intend to commit the crime. If he thinks his act will be a crime, this is a mere mistake of his understanding where the law holds it not to be such, his real intent being to do a particular thing. If the thing is not a crime, he does not intend to commit one whatever he may erroneously suppose." 1 Bishop's Crim. Law (7th Ed.) 8742.

The judgment of the Appellate Division and of the Court of General Sessions must be reversed, and the defendant discharged upon this indictment, as it is manifest that no conviction can be had thereunder. This discharge, however, in no wise affects the right to prosecute the defendant for other offenses of a like character concerning which there is some proof in the record, but which were not charged in the present indictment.

CHASE, J. (dissenting). I dissent. Defendant having, with knowledge, repeatedly received goods stolen from a dry goods firm by one of its employés, suggested to the employé that a certain specified kind of cloth be taken, he was told by the employé that that particular kind of cloth was not kept on his floor, and he then said that he would take a roll of certain Italian cloth. The employé then stole a roll of the Italian cloth and carried it away, but left it in another store where he could subsequently get it for delivery to the defendant. Before it was ac tually delivered to the defendant the em. ployers discovered that the employé hadbeen stealing from them, and they accused him of the thefts. The employé then confessed his guilt and told them of the piece of

cloth that had been stolen for the defendant, but had not actually been delivered to him. The roll of cloth so stolen was then taken by another employé of the firm, and it was arranged at the police headquarters that the employé who had taken the cloth should deliver it to the defendant, which he did, and the defendant paid the employé about onehalf the value thereof. The defendant was then arrrested and this indictment was thereafter found against him. That the defendant intended to commit a crime is undisputed. I think the record shows an attempt to commit the crime of criminally receiving property as defined in sections 550 and 34 of the Penal Code, within the decisions of this court in People v. Moran, 123 N. Y. 254, 25 N. E. 412, 10 L. R. A. 109, 20 Am. St. Rep. 732, and People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, VANN, and WERNER, JJ., concur with WILLARD BARTLETT, J. BARTLETT, J. CHASE, J., dissents in memorandum. Judgment of conviction reversed, etc.

(185 N. Y. 453)

HOUSE et al. v. CARR. (Court of Appeals of New York. June 19, 1906.)

MORTGAGES-FORECLOSURE UNDER POWER OF

SALE-INJUNCTION-LIMITATIONS.

Though limitations have run against a mortgage, a court of equity will not restrain a sale under the power of sale contained in the mortgage.

Vann, Haight, and Werner, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Fourth Department.

another

Action by Maria House and against Lucian C. Carr, administrator of Cynthia Gilbert. From a judgment of the Appellate Division (93 N. Y. Supp. 1135, 105 App. Div. 625), affirming a judgment in favor of plaintiffs, defendant appeals. Reversed, and new trial granted.

This action was commenced on the 23d of June, 1903, to restrain the foreclosure of a mortgage by advertisement under the statute. The mortgage, collateral to a bond of even date, was given by Alonzo House to Cynthia Gilbert on the 13th of October, 1870, to secure the payment of a debt which he owed her, then amounting to the sum of $400, within four years from date. The mortgagor owned the land covered by the mortgage at the date thereof, and at this time as well as thenceforward until he died, on the 11th of May, 1895, he resided thereon with his family. By his will he devised said land to his son, Cline E. House, one of the plaintiffs who still owns the same subject to the dower right of his mother, the other plaintiff. The mortgagee died intestate on the 2d of April 1902, and the defendant is his legal

representative. On the 2d of April, 1903, the defendant commenced a statutory foreclosure of said mortgage, which had come into his possession as part of the assets of the estate so represented by him. The last installment of the bond and mortgage became due on the 13th of October, 1874, and no payment was proved to have ever been made thereon, nor any new promise or acknowledgment with reference thereto. Payment of the mortgage was not alleged in the complaint. After finding the foregoing facts among others, the referee before whom the action was tried, found as conclusions of law that all causes of action on said bond and mortgage were barred by the statute of limitations before the commencement of this action; that the sale of the premises in such proceeding to foreclose would place a cloud on the title of the plaintiffs and that they were entitled to a judgment perpetually restraining the defendant from foreclosing the mortgage. The judgment entered accordingly was unanimously affirmed by the Appellate Division, and the defendant appealed to this court.

S. C. Huntington, for appellant. O. M. Reilly, for respondents.

CULLEN, C. J. (after stating the facts). This appeal presents the single question whether a court of equity will, on the ground that the statute of limitations has run against a mortgage, restrain a sale under the power of sale contained in the mortgage. There is neither allegation in the complaint nor finding by the court that the bond and mortgage had been paid. The complaint charged and the trial court found merely that no payments had been made within 20 years upon the bond and mortgage and that, therefore, they were, under the statute, barred by lapse of time. I can find no case in the books and none has been cited to us in which such an action has been maintained. On the contrary, in the only cases in which the precise question has been presented it has been held that the action would not lie. Goldfrank v. Young, 64 Tex. 432; Hutaff v. Adrian, 112 N. C. 259, 17 S. E. 78. It is settled law, as appears by the cases cited in my Brother VANN'S opinion, that equity will not set aside as a cloud upon title a lien outlawed by the statute of limitations. In Matter of Willett, 70 N. Y. 490, is was sought to vacate an assessment, the enforcement of which was barred by lapse of 20 years from the time of its imposition. In affirming a denial of the application this court said: this proceeding taken by him (the petitioner), seeking affirmative relief, depending upon the fact of payment, he cannot rely upon the presumption, but must show actual payment by competent proof." Hence, I assume it to be conceded that had the defendant not sought to execute under the statute the power of sale, that is to say, to foreclose by advertisement, as it is usually called,

"In

the plaintiffs could not have cleared their lands from the apparent lien of the mortgage. The controversy is, therefore, further narrowed to this question: Did the attempt of the defendant to sell and the effect of such a sale, if had, entitle the plaintiffs to relief against the sale which would have been denied against the mortgage itself?

In support of the affirmative of this proposition it is urged that under this statute the effect of a sale is the same as that of a decree of foreclosure in a court of equity, and the question is then asked: "Is it possible that a landowner can be deprived of his land by an attack out of court which has the same effect as an attack in court, with no opportunity to defend himself?" To this (assuming that the sale will cut off every defense, which it will not if notice of the defense is given at the time and place of sale) I answer "Yes," and assert that the exact question has been determined in this state nearly a century ago. At the time of the decision to which I refer the statute law was substantially the same as at present, 1 Rev. Laws 1813, p. 375, c. 32, § 14, enacting that the sale should have "the like effect as if any of the said mortgages had been foreclosed in the court of chancery by a decree against all parties in interest." At that time, as at present, the law declared usurious securities void. At the same time the courts had also held that at a sale under a usurious mortgage a purchaser without notice would acquire a good title. Jackson v. Henry, 10 Johns. 185, 6 Am. Dec. 328. Such being the state of the law, in Fanning v. Dunham, 5 Johns. Ch. 128, 9 Am. Dec. 283, a bill was filed to restrain a statutory sale under a usurious mortgage. Chancellor Kent held that the plaintiffs could not get relief except on payment of the amount actually owing on the mortgage. The chancellor recognized perfectly the point that is now made, that by a foreclosure by advertisement the owner of the equity of redemption might be deprived of a defense which he could successfully interpose had an action been brought to foreclose the mortgage, for he said: "If the defendant was endeavoring to enforce any of his securities in this court, and the present plaintiff had set up and made out the usury by way of defense, the remedy would have been obvious. The securities would have been declared void and ordered to be delivered up and canceled." Nevertheless, he held that as the plaintiff was compelled to resort to a court of equity he must do equity as a condition of obtaining relief. The authority of Fanning v. Dunham has never been questioned. The case is cited with approval in Williams v. Fitzhugh, 37 N. Y. 444, the court saying: "He (the defendant) might stand on his legal rights and defend any and every endeavor to compel him to pay, but if he invoked the aid of a court of equity to give him affirmative relief, that court recognized his equitable obligation to refund

what he had received." The case is also cited as authority in nearly every state where either our system of statutory foreclosure or the practice of giving trust deeds to secure debts obtains. The Fanning Case equally disposes of the contention that a suit to enjoin a sale is not an attack, but a defense.

It must be borne in mind that the statute of limitations in this state never pays or discharges a debt, but only affects the remedy. It would be within the constitutional power of the Legislature to repeal the statute of limitations and revive claims, the enforcement of which have been barred by the statute for a generation. Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 Therefore, though the statute

may have barred one remedy on the debt, if there be another remedy not affected by the statute, or one to which a different limitation applies, a creditor may enforce his claim through that remedy. Thus, Hulbert v. Clark, 128 N. Y. 295, 28 N. E. 638, 14 L. R. A. 59 was an action to foreclose a mortgage given to secure payment of a promissory note. The note itself was outlawed, more than six years having elapsed since its maturity, and there was no promise to pay contained in the mortgage. Nevertheless, this court held the action could be maintained, Judge Earl saying: "The statute of limitations does not after the prescribed period destroy, discharge or pay the debt, but it simply bars a remedy thereon. The debt and the obligation to pay the same remain. These notes were, therefore, not paid, and so the referee found. The condition of the mortgage has, therefore, not been complied with. The notes being valid in their inception the only answer to the foreclosure of the mortgage is payment. The mortgage was given to secure payment of the notes, and until they are paid the mortgage is a subsisting security and can be foreclosed." There is in the case of a mortgage containing a power of sale a third remedy open to the creditor, a sale under the power. It is unnecessary to determine whether the exercise of that power is barred by the lapse of time or not. If it is not then the defendand had the undoubted right to pursue it and was very wise in so doing, just as wise as the plaintiff was in the Hulbert Case in not suing on the note, where he would have been beaten, but in bringing an action to foreclose the mortgage. But assuming that the statute of limitations bars the right to exercise the power of sale, and further assuming that the plaintiffs could not set up that bar in answer to a title acquired by a sale under the barred power (which I deny), and, therefore, is in the unfortunate (?) position of being compelled to seek relief in a court of equity, nevertheless the court will require them, as a condition of relief, to do equity and pay the debt which they do not deny they owe. For, as Judge Earl has said, the statute does not discharge or pay

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