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the meaning of section 18 of the labor law duty of the defendants under the statute, (Laws 1897, p. 467, c. 415), and that the the plaintiff's counsel apparently was not scaffold upon which he was at work was content, and so he endeavored to formulate 200 such a scaffold as was contempla- a' charge upon the subject by requesting ted by the provisions of that act. We the court to charge “that it makes no differhave examined the record, but fail to ence in this case in applying the labor statfind any exception that raises either of these ute to this cause of action, whether the dequestions. At the conclusion of the plaintiff's fendants themselves erected or caused to be evidence the defendants moved for a dis- made this scaffold, if by their direction missal of the complaint upon the grounds any one else made it." The court answered: that the plaintiff had failed to show negli- "That is only so far as it goes to the question gence on the part of the defendants, or his of contributory negligence.” To which the freedom from contributory negligence. But plaintiff's counsel replied: "Exactly.” Just neither by motion nor request to charge what is meant by this is not very clear. does it appear that the court was requested “It makes no difference” as to what? The to hold that the scow was not a "structure" request does not state. Inasmuch as it was within the meaning of the statute, or that made by the plaintiff's counsel, we presume the "scaffold” was not one contemplated by the difference he referred to was as to the its provisions. We therefore

We therefore think that right of the plaintiff to recover, otherwise neither of these questions argued in this it is without point. The balance of the recourt are presented by the record. The case quest pertains to the acts of the defendants appears to have been defended upon the in erecting, or ordering to be erected, a scaftheory of contributory negligence on the fold, and seems to relate to their duty and part of the plaintiff. That issue was sub- not to that of the plaintiff. But under the mitted to the jury, and the verdict found query of the court with reference to contribthereon has, as we have seen, been unani- utory negligence the answer of the plaintiff's mously affirmed, which, under the provisions counsel "exactly” indicates that it was inof the Constitution, precludes this court from tended to refer to the contributory negligence the consideration of the question as to wheth- of the plaintiff, and, if so, it might make a er there was evidence suficient to sustain the considerable difference with the right of the verdict upon that issue.

plaintiff to recover, provided that a scaffold Our attention has been called to two ex- should be erected by the direction of the deceptions taken to the charge of the court. fendants by the plaintiff himself, who, at The first is as follows: "Now, about the the time, fully understood the quality of only question outside of the plaintiff's own

the material used for that purpose. But no negligence is, was the defendant negligent ruling appears to have been made by the in furnishing and supplying the plaintiff court further than the query to which we with a scaffold which was unsafe and im- have referred, and thereupon the defendants' proper and unsuitable, and did not afford counsel asked the court to charge in that protection to life or limb? The defendants

connection “that if the master directed the are absolutely commanded by the statute plaintiff to construct it (referring to the to supply workmen with this sort of appa

scaffold) the master would not be responsiratus; it is their duty to do it. They have

ble." This would be so were it not for the no excuses to offer, and there are none which defective material supplied. It appears that they can invoke." It may be that, under the plank used as a scaffold broke, causing a strict grammatical construction of the the injury to the plaintiff complained of. It charge, “this sort of apparatus” would re

was the duty of the master to furnish proper fer to the unsafe and improper scaffold

and safe material for the construction of referred to in the sentence preceding. But,

the scaffold. It was the duty of the plaintiff, of course, this is not what the judge intended. if ordered to construct a scaffold, to construct The duty of the defendants, under the stat.

it in such a manner as to make it safe for him ute, was to supply their workmen with a to work upon. It was his duty to use only safe and proper scaffold, not an unsafe safe and proper material. If, however, the and improper one, and we cannot conceive planks used by him on this occasion were the it possible that the jury could have been planks furnished by the defendants, and he misled with reference to that provision of

did not know at the time of using them that the statute. The judge, continuing in his they were unsafe and improper, he would not charge, referring to the defendants, says:

be chargeable with contributory negligence. "They have no excuses to offer, and there We think, therefore, that the request to are none which they can inyoke.” In other

charge was too broad, and that its refusal words, as we understand, no excuse has

does not furnish a ground for a reversal. been offered in the evidence by the defend

The judgment should be affirmed, with

costs. ants, and consequently there is none which they then could invoke before the jury. As

CULLEN, C. J., and GRAY, EDWARD thus limited and applied to the facts of

T. BARTLETT, WERNER, and HISCOCK, this case, we think that the concluding

JJ., concur. O'BRIEN, J., absent. sentence does not furnish grounds for a reversal. Although the court had stated the Judgment affirmed.

(185 N. Y. 497)

pellate Division chiefly upon the authority of PEOPLE V. JAFFE.

the numerous cases in which it has becn (Court of Appeals of New York. June 21, held that one may be convicted of an attempt 1906.)

to commit a crime notwithstanding the existRECEIVING STOLEN GOODS-ATTEMPTS.

ence of facts unknown to him which would A clerk stole goods from his employer have rendered the complete perpetration of under an agreement to sell them to accused,

the crime itself impossible. Notably among but before delivery of the goods the theft was discovered and the goods were recovered. Later

these are what may be called the "Pickpockthe employer redelivered the goods to the clerk et Cases," where, in prosecutions for attempts to sell to accused, who purchased them for about to commit larceny from the person by pocketone-half of their value, believing them to have been stolen. Held, that the goods had lost their

picking, it is held not to be necessary to alcharacter as stolen goods at the time defendant lege or prove that there was anything in the purchased them, and that his criminal intent pocket which could be the subject of larceny. was insufficient to sustain a conviction for an attempt to receive stolen property, knowing it to have been stolen, prohibited by Pen. Code,

365; Rogers v. Commonwealth, 5 Serg. & R. $ 550.

(Pa.) 463; State v. Wilson, 30 Conn. 500; [Ed. Note. For cases in point, see vol. 42, People v. Moran, 123 N. Y. 254, 25 N. E. 412, Cent. Dig. Receiving Stolen Goods, SS 1, 4.]

10 L. R. A. 109, 20 Am. St. Rep. 732. Much Chase, J., dissenting. .

reliance was also placed in the opinion of the Appeal from Supreme Court, Appellata

learned Appellate Division upon the case of Division, First Department.

People v. Gardner, 144 N. Y. 119, 38 N. E. Samuel Jaffe was convicted by the Court

1003, 28 L. R. A. 699, 43 Am. St. Rep. 741, of General Sessions in and for the county of

where a conviction of an attempt to commit New York of an attempt to receive stolen

the crime of extortion was upheld, although

the woman from whom the defendant sought property, knowing it to have been stolen, in violation of Pen. Code 550. From a judg

to obtain money by a threat to accuse her of ment of the Appellate Division (98 N. Y.

a crime was not induced to pay the money by Supp. 486), affirming such conviction, defend.

fear, but was acting at the time as a decoy ant appeals. Reversed.

for the police, and hence could not have been

subjected to the influence of fear. In passHenry W.Unger, for appellant. Wm. Trav

ing upon the question here presented for our ers Jerome, Dist. Atty. (Robert C. Taylor, determination, it is important to bear in of counsel), for respondent.

mind precisely what it was that the defend

ant attempted to do. He simply made an efWILLARD BARTLETT, J. The indict- fort to purchase certain specific pieces of ment charged that the defendant on the 6th cloth. He believed the cloth to be stolen day of October, 1902, in the county of New property, but it was not such in fact. The York, feloniously received 20 yards of cloth, purchase, therefore, if it had been completeof the value of 25 cents a yard, belonging to ly effected, could not constitute the crime of the copartnership of J. W. Goddard & Son, receiving stolen property, knowing it to be knowing that the said property had been stolen, since there could be no such thing as feloniously stolen, taken, and carried away knowledge on the part of the defendant of a from the owners. It was found under section nonexistent fact, although there might be a 550 of the Penal Code, which provides that belief on his part that the fact existed. As a person who buys or receives any stolen Mr. Bishop well says, it is a mere truism property knowing the same to have been stol- that there can be no receiving of stolen en is guilty of criminally receiving such prop- goods which have not been stolen. 2 Bisherty. The defendant was convicted of an at- op's New Crim. Law, $ 1140. It is equally tempt to commit the crime charged in the in- difficult to perceive how there can be an atdictment. The proof clearly showed, and the tempt to receive stolen goods, knowing them district attorney conceded upon the trial, to have been stolen, when they have not been that the goods which the defendant attempt-stolen in fact. ed to purchase on October 6, 1902, had lost The crucial distinction between the case their character as stolen goods at the time before us and the pickpocket cases, and when they were offered to the defendant others involving the same principle, lies not and when he sought to buy them. In fact in the possibility or impossibility of the com. the property had been restored to the owners mission of the crime, but in the fact that, in and was wholly within their control and the present case, the act, which it was was offered to the defendant by their author- doubtless the intent of the defendant to comity and through their agency. The question mit would not have been a crime if it had presented by this appeal, therefore, is wheth- been consummated. If he had actually paid er upon an indictment for receiving goods, for the goods which he desired to buy and knowing them to have been stolen, the de- received them into his possession, he would fendant may be convicted of an attempt to have committed no offense under section 550 commit the crime where it appears without of the Penal Code, because the very definidispute that the property which he sought tion in that section of the offense of crimito receive was not in fact stolen property. nally receiving property makes it an essential

The conviction was, sustained by the Ap- element of the crime that the accused shall

know that the property was stolen property tri

have known the property to have been stolen accused had completed the act which he ator wrongfully appropriated in such a man- tempted to do, he would not be guilty of a ner as to constitute larceny. This knowledge criminal offense. A particular belief cannot being a material ingredient of the offense it make that a crime which is not so in the is manifest that it cannot exist unless the absence of such belief. Take, for example, property has in fact been stolen or larce- the case of a young man who attempts to nously appropriated. No man can know that vote, and succeeds in casting his vote under to be so which is not so in truth and in fact. the belief that he is but 20 years of age, He may believe it to be so but belief is not when he is in fact over 21 and a qualified enough under this statute. In the present voter. His intent to commit a crime, and case it appeared, not only by the proof, but his belief that he was committing a crime, by the express concession of the prosecuting would not make him guilty of any offense officer, that the goods which the defendant under these circumstances, although the intended to purchase had lost their character moral turpitude of the transaction, on his as stolen goods at the time of the proposed part, would be just as great as it would if he transaction. Hence, no matter what was the were in fact under age. So, also, in the case motive of the defendant, and no matter what of a prosecution under the statute of this he supposed, he could do no act which was state, which makes it rape in the second intrinsically adapted to the then present suc- degree for a man to perpetrate an act of cessful perpetration of the crime denounced sexual intercourse with a female not his wife by this section of the Penal Code, because under the age of 18 years. There could be neither he nor any one in the world could no conviction if it was established upon the

trial that the female was in fact over the inasinuch as it was not, in fact, stolen prop- age of 18 years, although the defendant beerty. In the pickpocket cases the immediate lieved her to be younger and intended to comact which the defendant had in contempla- mit the crime. No matter how reprehensible tion was an act which, if it could have been would be his act in morals, it would not be carried outwould have been criminal, the act forbidden by this particular statute. whereas in the present case the immediate “If what a man contemplates doing would act which the defendant had in contem- not be in law a crime, he could not be said, plation (to wit, the purchase of the goods in point of law, to intend to commit the which were brought to his place for sale) crime. If he thinks his act will be a crime, could not have been criminal under the stat- this is a mere mistake of his understanding ute even if the purchase had been completed, where the law holds it not to be such, his because the goods had not, in fact, been stol- real intent being to do a particular thing. en, but were, at the time when they were If the thing is not a crime, he does not intend offered to him, in the custody and under the to commit one whatever he may erroneously control of the true owners.

suppose." 1 Bishop's Crim. Law (7th Ed.) If all which an accused person intends to 8 742. do would, if done, constitute no crime, it The judgment of the Appellate Division cannot be a crime to attempt to do with the and of the Court of General Sessions must same purpose a part of the thing intended. be reversed, and the defendant discharged 1 Bishop's Crim. Law (7th Ed.) 8 747. The upon this indictment, as it is manifest that crime of which the defendant was convict- no conviction can be had thereunder. This ed necessarily consists of three elements: discorge, however, in no wise affects the First, the act; second, the intent; and, third, right to prosecute the defendant for other the knowledge of an existing condition. offenses of a like character concerning which There was proof tending to establish two of there is some proof in the record, but which these elements, the first and second, but none were not charged in the present indictment. to establish the existence of the third. This was knowledge of the stolen character of the CHASE, J. (dissenting). I dissent. De. property sought to be acquired. There could fendant having, with knowledge, repeatedly be no such knowledge. The defendant could received goods stolen from a dry goods firm not know that the property possessed the by one of its employés, suggested to the character of stolen property when it had not employé that a certain specified kind of cloth in fact been acquired by theft. The language be taken, he was told by the employé that used by Ruger, Ch. J., in People v. Moran, 123 that particular kind of cloth was not kept N. Y. 254, 25 N. E. 412, 10 L. R. A. 109, 20 on his floor, and he then said that he would Am. St. Rep. 732, quoted with approval by take a roll of certain Italian cloth. The Earl, J., in People v. Gardner, 144 N. Y. 119, employé then stole a roll of the Italian cloth 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. and carried itaway, but leftitin another store Rep. 741, to the effect that “the question where he could subsequently get it for dewhether an attempt to commit a crime has livery to the defendant. Before it was acbeen made is determinable solely by the con- tually delivered to the defendant the em. dition of the actor's mind and his conduct in ployers discovered that the employé hadthe attempted consummation of his design," been stealing from them, and they accused although accurate in those cases, has no ap- him of the thefts. The employé then conplication to a case like this, where, if the fessed his guilt and told them of the piece of

cloth that had been stolen for the defendant, representative. On the 2d of April, 1903, but had not actually been delivered to him. the defendant commenced a statutory foreThe roll of cloth so stolen was then taken by closure of said mortgage, which had come another employé of the firm, and it was ar into his possession as part of the assets of ranged at the police headquarters that the the estate so represented by him. The last employé who had taken the cloth should de installment of the bond and mortgage beliver it to the defendant, which he did, and came due on the 13th of October, 1874, and the defendant paid the employé about one no payment was proved to have ever been half the value thereof. The defendant was made thereon, nor any new promise or acthen arrrested and this indictment was there knowledgment with reference thereto. Payafter found against him. That the defendant ment of the mortgage was not alleged in the intended to commit a crime is undisputed. complaint. After finding the foregoing facts I think the record shows an attempt to com among others, the referee before whom the mit the crime of criminally receiving prop action was tried, found as conclusions of erty as defined in sections 550 and 34 of the law that all causes of action on said bond Penal Code, within the decisions of this and mortgage were barred by the statute of court in People v. Moran, 123 N. Y. 254, 25 limitations before the commencement of this N. E. 412, 10 L. R. A. 109, 20 Am. St. Rep. action; that the sale of the preniises in such 732, and People v. Gardner, 141 N. Y. 119, proceeding to foreclose would place a cloud 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. on the title of the plaintiffs and that they Rep. 741.

were entitled to a judgment perpetually

restraining the defendant from foreclosing CULLEN, C. J., and GRAY, EDWARD the mortgage. The judgment entered accordT. BARTLETT, VANN, and WERNER, JJ., ingly was unanimously affirmed by the Apconcur with WILLARD BARTLETT, J. pellate Division, and the defendant appealed CHASE, J., dissents in memorandum.

to this court. Judgment of conviction reversed, etc.

S. C. Huntington, for appellant. 0. M. Reilly, for respondents.

CULLEN, C. J. (after stating the facts). (185 N. Y. 453)

This appeal presents the single question HOUSE et al. v. CARR.

whether a court of equity will, on the ground (Court of Appeals of New York. June 19,

that the statute of limitations has run against 1906.)

a mortgage, restrain a sale under the power MORTGAGES-FORECLOSURE UNDER POWER OF SALE-INJUNCTION-LIMITATIONS.

of sale contained in the mortgage. There Though limitations have run against a is neither allegation in the complaint nor mortgage, a court of equity will not restraina

finding by the court that the bond and mortsale under the power of sale contained in the

gage had been paid. The complaint charged mortgage. Vann, Haight, and Werner, JJ., dissenting.

and the trial court found merely that no

payments had been made within 20 years upAppeal from Supreme Court, Appellate

on the bond and mortgage and that, thereDivision, Fourth Department.

fore, they were, under the statute, barred by Action by Maria House and another

lapse of time. I can find no case in the against Lucian C. Carr, administrator of

books and none has been cited to us in which Cynthia Gilbert. From a judgment of the such an action has been maintained. On the Appellate Division (93 N. Y. Supp. 1135, 105

contrary, in the only cases in which the App. Div. 625), affirming a judgment in favor

precise question has been presented it has of plaintiffs, defendant appeals. Reversed,

been held that the action would not lie. and new trial granted.

Goldfrank v. Young, 64 Tex. 432; Hutaff v. This action was commenced on the 23d Adrian, 112 N. C. 239, 17 S. E. 78. It is of June, 1903, to restrain the foreclosure of a settled law, as appears by the cases cited in mortgage by advertisement under the statute. my Brother VANN'S opinion, that equity will The mortgage, collateral to a bond of even not set aside as a cloud upon title a lien date, was given by Alonzo House to Cynthia outlawed by the statute of limitations. In Gilbert on the 13th of October, 1870, to Matter of Willett, 70 N. Y. 490, is was sought secure the payment of a debt which he owed to vacate an assessment, the enforcement of her, then amounting to the sum of $400, with which was barred by lapse of 20 years from in four years from date. The mortgagor the time of its imposition. In affirming a owned the land covered by the mortgage at denial of the application this court said: "In the date thereof, and at this time as well this proceeding taken by him (the petitioner), as thenceforward until he died, on the 11th seeking affirmative relief, depending upon of May, 1895, he resided thereon with his the fact of payment, he cannot rely upon family. By his will he devised said land to the presumption, but must show actual payhis son, Cline E. House, one of the plain ment by competent proof.” Hence, I assume tiffs who still owns the same subject to the it to be conceded that had the defendant not dower right of his mother, the other plaintiff. sought to execute under the statute the The mortgagee died intestate on the 2d of power of sale, that is to say, to foreApril 1902, and the defendant is his legal close by advertisement, as it is usually called,

the plaintiffs could not have cleared their what he had received." The case is also lands from the apparent lien of the mort

cited as authority in nearly every state where gage. The controversy is, therefore, further either our system of statutory foreclosure or narrowed to this question: Did the attempt the practice of giving trust deeds to secure of the defendant to sell and the effect of debts obtains. The Fanning Case equally such a sale, if had, entitle the plaintiffs to disposes of the contention that a suit to en. relief against the sale which would have been join a sale is not an attack, but a defense. denied against the mortgage itself?

It must be borne in mind that the statute In support of the affirmative of this propo

of limitations in this state never pays or sition it is urged that under this statute the discharges

discharges a debt, but only affects the effect of a sale is the same as that of a decree remedy. It would be within the constituof foreclosure in a court of equity, and the

tional power of the Legislature to repeal question is then asked: "Is it possible that a

the statute of limitations and revive claims, landowner can be deprived of his land by an

the enforcement of which have been barred attack out of court which has the same effect by the statute for a generation. Campbell as an attack in court, with no opportunity to

v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 defend himself?” To this (assuming that the

L. Ed. 483. Therefore, though the statute sale will cut off every defense, which it

may have barred one remedy on the debt, if will not if notice of the defense is given at

there be another remedy not affected by the the time and place of sale) I answer “Yes,”

statute, or one to which a different limitaand assert that the exact question has been

tion applies, a creditor may enforce his determined in this state nearly a century

claim through that remedy. Thus, Hulbert ago. At the time of the decision to which I

v. Clark, 128 X. Y. 295, 28 N. E. 638, 14 L. R. refer the statute law was substantially the

A. 59 was an action to foreclose a mortgage same as at present, 1 Rev. Laws 1813, p. 375,

given to secure payment of a promissory

note. c. 32, § 14, enacting that the sale should have

The note itself was outlawed, more “the like effect as if any of the said mort

than six years having elapsed since its magages had been foreclosed in the court of

turity, and there was no promise to pay conchancery by a decree against all parties

tained in the mortgage. Nevertheless, this in interest." At that time, as at present,

court held the action could be maintained, the law declared usurious securities void.

Judge Earl saying: “The statute of limitaAt the same time the courts had also held

tions does not after the prescribed period dethat at a sale under a usurious mortgage a

stroy, discharge or pay the debt, but it simppurchaser without notice would acquire a

ly bars a remedy thereon. The debt and the good title. Jackson V. Henry, 10 Johns.

obligation to pay the same remain. 185, 6 Am. Dec. 328. Such being the state

These notes were, therefore, not paid, and of the law, in Fanning v. Dunham, 5 Johns. so the referee found. The condition of the Ch. 128, 9 Am. Dec. 283, a bill was filed to mortgage has, therefore, not been complied restrain a statutory sale under a usurious with. The notes being valid in their incepmortgage. Chancellor Kent held that the tion the only answer to the foreclosure of plaintiffs could not get relief except on pay

the mortgage is payment. The mortgage ment of the amount actually owing on the

was given to secure payment of the notes, mortgage. The chancellor recognized per- and until they are paid the mortgage is a fectly the point that is now made, that by subsisting security and can be foreclosed.” a foreclosure by advertisement the owner of There is in the case of a mortgage containthe equity of redemption might be deprived ing a power of sale a third remedy open to of a defense which he could successfully

the creditor, a sale under the power. It is interpose had an action been brought to fore- unnecessary to determine whether the exclose the mortgage, for he said: "If the de- ercise of that power is barred by the lapse fendant was endeavoring to enforce any of

of time or not. If it is not then the defendhis securities in this court, and the present

and had the undoubted right to pursue it plaintiff had set up and made out the usury

and was very wise in so doing, just as wise by way of defense, the remedy would have as the plaintiff was in the Hulbert Case in been obvious. The securities would have not suing on the note, where he would have been declared void and ordered to be de- been beaten, but in bringing an action to livered up and canceled.” Nevertheless, he foreclose the mortgage. But assuming that held that as the plaintiff was compelled to the statute of limitations bars the right to resort to a court of equity he must do equity exercise the power of sale, and further asas a condition of obtaining relief.

The au

suming that the plaintiffs could not set up thority of Fanning v. Dunham has never been that bar in answer to a title acquired by a questioned. The case is cited with approval sale under the barred power (which I deny), in Williams v. Fitzhugh, 37 N. Y. 411, the and, therefore, is in the unfortunate (?) posicourt saying: “He (the defendant) might tion of being compelled to seek relief in a stand on his legal rights and defend any court of equity, nevertheless the court will and every endeavor to compel him to pay, require them, as a condition of relief, to do but if he invuked the aid of a court of equity | equity and pay the debt which they do not to give him affirmative relief, that court rec- deny they owe. For, as Judge Earl has ognized his equitable obligation to refund said, the statute does not discharge or pay

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