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subject to her right to have her dower admeasured, and to be allowed, out of the purchase money, a sum equivalent to the gross value of such dower right, which is ascertainable on established legal principles. But here the widow was also executrix, and, as such, one of the parties to the contract of sale. She is also made a defendant in this action in her individual capacity. We think that, by joining in the contract of sale, without any reservation therein of her dower right, she consented, so far as her individual rights were concerned, to make a good title to the purchaser, and to look to the purchase money as a substitute for the land for her dower right therein.
The point made on the part of the defendant, that she could not dispose of her dower before it was admeasured, is decided adversely to her in the case of Payne v. Becker, 87 N. Y. 153. She should therefore be decreed to release her dower to the purchaser on the payment to her of the gross value out of the purchase money.
The defense interposed on behalf of the widow, to the effect that she joined in and executed the contract of sale without knowing or understanding its contents or effect, or comprehending the transaction, is negatived by the findings of the trial court. It appears that the contract was in all respects fair, for a full price, and one which it was her duty as executrix to make, and that her co-executors were desirous of carrying it into effect, and offered to her to make liberal provision for her individual interest in the land by investing about two-thirds of the proceeds for her benefit during her life, but that she has refused to carry out the sale, and has retained the substantial occupancy of the property ever since the time fixed for the completion of the sale, viz., March 1, 1882.
The only remaining questions are those which relate to the rents and profits from the time when the purchaser became entitled to his deed. There can be but little controversy about the ordinary rules for the determination of these questions. Where the purchaser is ready and willing to perform, and the delay is on the part of the vendor, the purchaser is entitled to the rents and profits from the time when, according to the terms of the contract, possession should have been delivered, or, if the vendor has remained in possession, he is chargeable with the value of the use and occupation from the same period, and the purchaser is chargeable with interest on the purchase money if it has remained in his hand unappropriated. But where it has been appropriated, and notice thereof given to the vendor, and the purchaser has received no interest thereon, he is not liable to pay interest to the vendor. Fry, Spec. Perf. 481, 483, 889; Dias v. Glover, Hoff. Ch. 71, 78; Story, Eq. 789; Worrall v. Munn, 38 N. Y. 142.
In this case it appears from the findings that $500 of the purchase money was paid to the vendors at the time of the making of the contract, and that on the day appointed for its performance he tendered the residue, $10,500, and, on its being refused by the defendants, he deposited the same in the First National Bank of Lowville, on notice to the defendants, subject to their order, and to be delivered to them on the execution and delivery of a deed of the farm, which had been previously tendered to them for execution, and which was an executor's deed in the ordinary form. The appropriation of the purchase money thus appears to have been complete, and sufficient to discharge the plaintiff from liability to pay interest thereon.
The judgment appealed from attempts to adjust the equities by requiring the defendants to execute and deliver to the plaintiff an ordinary executor's deed of the premises, and renders judgment against them, as executors, for the rental value of the farm since March 1, 1882, fixed at $350 over and above the widow's use of one-third thereof, and rendering judgment against the defendant Emily P. Beach individually, as well as in her representative capacity, for the amount remaining unpaid upon the mortgage, together with the value of her dower interest therein, to be ascertained according to the
rules and practice of this court. We think that in these respects it requires modification. The amount unpaid upon the mortgage, instead of being charged personally upon the widow, should be paid out of the purchase money. Instead of a personal judgment against the widow for the value of her dower interest, she should be directed to release her dower. The value of her dower right should be ascertained as of the first of March, 1882. She would have been entitled to that if she had performed the contract. The plaintiff being entitled to the whole of the rental value of the premises since that time, so much thereof as has been deducted, by reason of her dower right, from the rental value allowed to him as against the executors, should be paid to him, out of the gross sum ascertained, as the value of her dower right.
The judgments of the general and special terms should be modified accordingly, and, with these modifications, the interlocutory judgments appealed from should be affirmed, without costs of this appeal to either party.
(103 N. Y. 487)
PEOPLE 0. BUDDENSEICK.
(Court of Appeals of New York. Novernber 23, 1886.)
Imperfections in an indictment which in no way tend to prejudice the accused as to his substantial rights, cannot affect either the indictment or the judgment, to
the extent of supporting a motion in arrest. 2. JURY-COMPETENCY-CHALLENGES FOR BIAS-OPINIONS FORMED FROM READING NEWS
Where a juror, on being challenged, testifies that he has read the newspaper reports about the occurrence on which the indictment is brought, but has formed no opinion as to the guilt or innocence of the prisoner; that his mind is free from any impression in regard thereto, or the charge contained in the indictment, but he is of the opinion, from what he has read, that such occurrence is the result of culpable negligence on the part of some one, and that it will require evidence to remove the impression; or where a juror testifies that, from reading the papers, he has formed an opinion as to the guilt or innocence of the defendant which it will require evidence to remove; but in both cases the juror swears that he can nevertheless go into the jury box, and render an impartial decision upon the evidence, without being influenced by the opinion or impression derived from what he has read, there is no ground for a challenge, and the court may, in its discretion, allow such jurors to try the issue, as they are competent to do so within the letter of the
New Code of Criminal Procedure. 3. EVIDENCE-EXPERTS-DEFECTIVE BUILDINGS - MORTAR AND BRICK IN ILLUSTRATION.
On the trial of an indictment for manslaughter, resulting from the culpable negligence, acts, and omissions of defendant "in the selection and use of materials for and in the construction of a certain building,' a piece of brick and mortar from the defective building, produced by an expert in support and illustration of his testimony as to the defective quality of the materials used, is properly admissible in
In the above case, on cross-examination of the inspector of buildings, defendant's
of examination, destroyed the force of his objection. 8. SAME-COMPETENCY-PHOTOGRAPH OF PREMISES.
In the above case, a photograph, taken during the trial, exhibiting the surface cortion and state of the wall of the building, which it appeared was in the same col .. tion as when last seen by the witness at the time of its fall, was rightly admitted in evidence as an aid to the jury in applying the evidence. The court was not bound to allow the jury to visit and view the premises.
6. CRIMINAL LAW-APPEAL-EXCEPTIONS — REQUISITES - STIPULATION BY COUNSEL
“GENERAL” FOR “PARTICULAR."
Where defendant, on appeal in a criminal case, alleges several instances of error in the instructions under which the evidence was given to the jury, but the record fails to show that any exception was in fact taken to the charge, an alleged stipu. lation by counsel "that a general exception should give the defendant the benefit of a particular exception to any part of the charge," will not avail. Indictment for manslaughter. Mr. Howe, for appellant, Buddenseick. Mr. Nicoll, for the People.
DANFORTH, J. The appellant draws in question (1) the sufficiency of the indictment, (2) the competency of jurors, (3) the rulings of the learned recorder upon questions of evidence, (4) his charge, and his refusals to charge as requested by the prisoner's counsel; and he does so upon propositions which appear to have been presented to the learned judges at general term, and by them so fully considered and answered as to make it apparent that a different result would have been little better than a miscarriage of justice.
The indictment is under title 9, c. 2, § 193, sub. 3, and section 195, Pen. Code, and, in substance, charges that the prisoner, by certain culpable negligence, acts, and omissions, in the selection and use of materials for and in the construction of a certain building which he was erecting in the city and county of New York, and which acts are specified, killed and occasioned the death of one Walters. One crime only is alleged,-manslaughter in the second degree. Both sections of the Code above referred to define a number of unlawful acts, including those set out in the indictment, as constituting that crime.
The case comes within those sections, and the form of the indictment is in substantial, if not literal, compliance with the provisions of section 284 of the Code of Criminal Procedure. Neither time, place, nor circumstance was omitted. The time was stated to be the thirteenth of April, and days prior thereto, during the erection of the buildings; the place within the jurisdiction of the court; and the circumstances those enumerated in the statute as constituting the offense. We discover no imperfection, therefore, in it, either in form or substance; and those alleged against it by the appellant, if not wholly unfounded, do in no respect tend to his prejudice, so far as substantial rights upon the merits are concerned, and hence they cannot affect either the indictment or judgment. Code Crim. Proc. § 285.' It follows that the trial court did not err in denying the defendant's motion in arrest of judgment. Upon such a motion only two objections are available: (1) To the jurisdiction of the court over the subject of the indictment; (2) that the facts stated do not constitute a crime. Code Crim. Proc. SS 467, 331. The first was not presented to the trial court, nor are either now relied upon. The other objections are unimportant on such a motion.
It is next argued that the trial court erred in overruling the challenges to three jurors. (1) John Bloom, on examination by the district attorney, testified that he knew of no reason why, if sworn upon the jury, he could not render an impartial verdict upon the evidence, and, in answer to the prisoner's counsel, he said that he had read in the newspapers about the occurrence in question, but had formed no opinion as to the guilt or innocence of the prisoner; that his mind was free from any impression in regard thereto, or the charge contained in the indictment, but was of the opinion, from what he had read, that the catastrophe was the result of culpable negligence on the part of some one, and that it would require evidence to remove the impression. (2) The condition of Myer's mind was disclosed in substantially the same way; while (3) Weil said that, from reading the papers, he had formed an opinion as to the guilt or innocence of the defendant which it would require evidence to remove. The challenge was upon the ground of actual bias existing in the minds of those proposed jurors, but each also testified, in substance, that he could nevertheless go into the jury-box, and render an impartial verdict upon the evidence submitted from the witness stand, without being influenced by the opinion or impression derived or formed from what he had read. There remained, therefore, no sufficient ground of challenge, or reason why the trial court could not, in the exercise of a sound discretion, determine that these several persons could try the issue impartially, and without prejudice to the substantial rights of the party challenging. They were therefore competent, within the letter of the Code of Criminal Procedure relating to such questions, and the defendant's objections were properly overruled. People v. Otto, 101 N. Y. 690; S. C. 5 N. E. Rep. 788; People v. Crowley, 102 N. Y. 234; S. C. 6 N. E. Rep. 384; Same v. Carpenter, 102 N. Y. 238; S. C. 6 N. E. Rep. 584.
There are many exceptions to evidence. The first noticed by the appellant relates to the admission in evidence of a piece of brick and mortar produced by the witness D'Oench. He was inspector of buildings for the fire department, and testified as to the condition of the fallen wall, its want of solidity, the materials of which it had been constructed; and, among other things, produced in evidence specimens of the mortar taken from the buildings, some of it from between two bricks, part of the fallen walls. The case of the people turned, in part, upon the inferior quality of the materials; and anything to show how they, in fact, differed in their characteristics from good, sufficient, and suitable substances, in general and approved use for like purposes, was competent. That the mortar in fact used by the defendant in the construction of the walls was of “a poor and inferior quality, and chiefly composed of loam,” was a distinct and important allegation. That it is the admixture of clear grit-sharp sand—with lime which gives it the character of cement, was proven; that the last is binding, while the other is not. That bricks laid with mortar of lime and sand will resist the influence of the rain, while a composition of lime and loam will be washed out, was established, so far as it could be, by opinion, and the result of observation and experience. The testimony came from one qualified to speak upon that subject; but the conditions illustrated by the various specimens of mortar, and mortar and bricks, taken from the ruins, and the specimen from another building, were some evidence of the truth of his assertion, and they could properly be received, not only as confirming his opinion, but to enable the jurors the better to understand and appreciate the difference in effect between the mortar used by the defendant and that properly prepared. That one was strong and solid, the brick firmly imbedded in the mortar, and the other disjointed, and with no coherence, was some evidence that the differences pointed out were substantial. The evidence as to the quality and component parts of the mortar used by the defendant was indispensable as part of the accusation, and the evidence as to the proper ingredients of mortar used by others, and in other buildings, and its quality and effect, was not less competent as tending to show the cause of the falling of the walls. The defendant's mortar the expert pronounced bad; the other, good. The object of using the mortar was the same in both cases. The specimens tended to prove the truth of his assertion. Indeed, the argument of the appellant rather goes to the weight of the evidence than its admissibility.
The learned counsel states that, if the witnesses had explained and pointed out the difference between the two specimens,—the reason why one was good and the other bad,—“the specimens might have been shown to the jury as illustrating the testimony of the witnesses.” If there was any lack of such testimony,—and it seems to us there was not,-it would only show that further use might have been made of the pieces of brick and mortar, but would in nowise support the general objection that their exhibition to the jury was "incompetent or inadmissible for any purpose.” The cases cited by the appellant upon this branch of the case have been examined, but we find none in point.
During the cross-examination of this witness, (D'Oench,) at the request of defendant's counsel, he stated that he superintended the general work of the office of inspectors of buildings, and that official examiners were his subordinates, and their duty to make reports, among other things, of the condition of buildings, the violation of building laws, and unsafe buildings, and also, if improper materials were used in construction, to notify him; that they did report the buildings in question as unsafe. He was then asked by defendant's counsel, “What are those reports you have in your hands ? ” and answered, “Unsafe reports,” "in reference to those buildings." They bore date January, 1885, and were read in evidence as defendant's Exhibit No. 1. Five other reports relating to buildings adjoining that mentioned in Exhibit No. 1 were, upon like request, received in evidence, and marked defendant's Exhibits Nos. 2, 3, 4, 5, and 6, showing the buildings at the time of the reports to be unsafe. Upon re-direct examination, the district attorney offered in evidence certain other reports made subsequently, and in successive weeks, up to the thirteenth of April, concerning the same buildings, and their safety. The defendant's counsel said: "Before they are put in evidence, I have a right to examine this witness upon them;" and, doing so, he showed that the reports exhibited the condition of the buildings on the day the reports were made, whether they had remained unsafe, or had been changed; and, calling attention to one, he said, “What do the words nothing done,' on that report, mean;" and received for answer, “That nothing has been done,—that the order of the department has not been complied with.” He also showed that there was no record of any unsafety save that reported in January. The general contents of these reports, and a condition of the buildings substantially as therein stated, was also disclosed by parol evidence, coming either upon examination by defendant's counsel, or upon examination by the district attorney in answer or explanation of that so obtained. It is manifest, therefore, that their admission could in no respect tend to the defendant's prejudice; and while it is important, in all cases, that evidence should be free from exception, a new trial ought not to be granted, even where one is well taken, unless the jury could draw, from evidence admitted under it, some unfavorable influence, (Code Crim. Proc. & 542,) nor when the party excepting has, by his own course of examination, destroyed the force of his objection. Both rules apply here.
The next exception brought to our attention is the use in evidence of a photograph of the premises. It was taken during the trial, but it appeared that the part represented was in the same condition as when first seen by the witness, on the twenty-fifth of April, or soon after the structure fell. No objection was made that the person taking the picture was not competent or skilled in his art, nor that the then condition of the ruins was unimportant as throwing light upon the manner of the construction of the buildings. It exhibited the surface condition and state of the walls, and no doubt carried to the minds of the jurors a better image of the subject-matter concerning which negligence was charged than any oral description by eye-witnesses could have done. Its accuracy as a faithful representation of the actual scene was proven, and, in such a case, it must be deemed established that photographic scenes are admissible in evidence as appropriate aids to a jury in applying the evidence, whether it relates to persons, things, or places. Cozzenis v. Higgins, 1 Abb. Dec. 451; Cowley v. People, 83 N. Y. 464; Durst v. Masters, L. R. 1 Prob. Div. 373, 378. No doubt the court might, in its discretion, have allowed the jury to visit and view the premises, as it was asked to do by the prisoner's counsel; but it was not bound to do so. Code Crim. Proc. § 411.
There are many other propositions submitted by the appellant in relation to rulings upon evidence. They are less important than the foregoing. They seem, indeed, in view of the general course of the trial, and the conclusive