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trial was not authorized to dismiss the complaint on substantially the same testimony.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 46514655; Dec. Dig. § 1194.*]

2. APPEAL AND ERROR (§ 1194*)-REMAND CONSTRUCTION OF DECISION.

Where the court on appeal reversed the judgment for plaintiff because the verdict was against the evidence, it was not error for the trial court on a subsequent trial to set aside the verdict for plaintiff on substantially the same testimony.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 46514655; Dec. Dig. § 1194.*]

Appeal from Trial Term, New York County.

Action by David E. Blair and another against Gustave M. Minzesheimer and another. From a judgment entered on dismissal of the complaint, plaintiffs appeal. Affirmed in part, and reversed in part.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, MCLAUGHLIN, and CLARKE, JJ.

Philip C. Samuels, for appellants.

David C. Hirsch, for respondents.

INGRAHAM, J. This action was before tried, and resulted in a verdict for the plaintiff, which, upon an appeal to this court, was reversed upon the ground that the verdict was against the evidence. 124 App. Div. 177, 108 N. Y. Supp. 799. Upon the new trial, and upon substantially the same testimony, the court submitted the questions of fact to the jury, who again found a verdict for the plaintiff, whereupon the defendants moved upon the judge's minutes to set aside the verdict and for the direction of a verdict in favor of the defendant. That motion was granted, the court stating: "I am doing this because of the decision of the Appellate Division." From the order setting aside that verdict, and dismissing the complaint, the plaintiffs appeal. They also appeal from the judgment entered upon such dismissal of the complaint.

Upon the former appeal there was no suggestion that there was not a question of fact to submit to the jury, or that the trial judge would have been justified in directing a verdict for the defendant. A majority of the court, considering the improbability of the contract upon which the plaintiffs' claim was based and the fact that the testimony as to the making of such contract was uncorroborated, decided that the weight of the evidence was so great in the defendants' behalf that the verdict should be set aside and a new trial ordered. The learned trial judge misapprehended the effect of this decision. There was clearly a question of fact for the jury. The order, so far as it directs a dismissal of the complaint, and the judgment thereon, should be reversed.

The question is then presented as to whether the order setting aside the verdict upon the ground that it is against the evidence was justified. A majority of the court on the former appeal having held that

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

a verdict for the plaintiff was against the weight of evidence, and the trial judge having set aside a verdict, the order, so far as it set aside the verdict, must be affirmed.

The order directing a dismissal of the complaint, and the judgment entered thereon, is reversed, with costs to the plaintiff to abide the final result; and so much of the order as sets aside the verdict and directs a new trial of the action is affirmed, with costs to the defendant to abide the final result of the action. All concur.

HOOD v. HOFFMANN.

(Supreme Court, Appellate Division, First Department. May 7, 1909.) PLEADING (8 346*) - MOTIONS - FRIVOLOUS PLEADING — COMPLAINT — SUFFICIENCY.

A demurrer to the complaint in an action on a note which alleges that defendant executed its note on a designated date, payable on a designated future date, to the order of a third person, that no part of the note has been paid, and that prior to its maturity plaintiff was appointed receiver of the third person and authorized to maintain actions as such, is not frivolous, since the complaint does not show that plaintiff acquired title to the note or a right to sue on it.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1060-1064; Dec. Dig. § 346.*]

Appeal from Special Term, New York County.

Action by Robert C. Hood against Henry Hoffmann. From an order granting a motion for judgment for plaintiff on the pleadings, defendant appeals. Reversed.

Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

Lewis B. Brodsky, for appellant.
Henry B. Corey, for respondent.

SCOTT, J. Appeal from order striking out a demurrer to the complaint as frivolous and awarding judgment to the plaintiff. The complaint contains three similar counts. In the first cause of action it is alleged that on June 5, 1908, the defendant made its promissory note, payable on September 30, 1908, to the order of the Greensboro Table Company; that no part of said note has been paid; that on July 28, 1908, plaintiff was appointed receiver of said Greensboro Table Company, and duly authorized to bring and maintain actions as such receiver. The second and third causes of action differ from the first only in the fact that the notes sued upon bear different dates and are payable at different times.

It is observable that the complaint does not allege delivery of the notes to the Greensboro Table Company, nor that such notes were the property of or in the possession of said company when plaintiff was appointed receiver. So far as concerns the failure to allege delivery to the payee, it may be that it is to be presumed, although the pleader has not set out copies of the notes in his complaint. Prindle

v. Caruthers, 15 N. Y. 425; Keteltas v. Meyers, 19 N. Y. 231. There does not seem, however, to be any such presumption as to the passing of the notes to plaintiff upon his appointment as receiver; for unless they remained the property of the company until that appointment, which is not alleged, the plaintiff acquired no title to them or right to sue upon them. We do not think that the demurrer can be deemed frivolous, even although, upon more elaborate argument, the complaint might be found to be sufficient.

The order must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.

PEOPLE V. LEWIS.

(Supreme Court, Appellate Division, First Department. May 7, 1909.) 1. PARENT AND CHILD (§ 17*)-ABANDONMENT-OFFENSES.

Pen. Code, § 287, making it a crime to desert a child in any place with the intention of abandoning it, applies to an act of physical desertion under circumstances rendering it probable that the life or health of the child may be imperiled, or that it may be subjected to suffering or bodily harm.

[Ed. Note. For other cases, see Parent and Child, Cent. Dig. § 176; Dec. Dig. § 17.*]

2. PARENT AND CHILD (§ 17*)—ABANDONMENT-OFFENSES.

The crime denounced by Pen. Code, § 288, making it a misdemeanor for a parent to willfully omit proper medical attendance for a minor child, etc., contains no element of abandonment or desertion.

[Ed. Note. For other cases, see Parent and Child, Cent. Dig. § 176; Dec. Dig. § 17.*]

3. PARENT AND CHILD (§ 17*)—ABANDONMENT-OFFENSES.

Under Pen. Code, § 287a (Pen. Law, § 480), punishing a parent who abandons his child under 16 years in destitute circumstances, and willfully omits to furnish necessary food and shelter for the child, etc., abandonment in destitute circumstances and failure to provide must exist to constitute the crime, though it is not essential that the physical act of leaving the child and the failure to provide shall coincide as to time.

[Ed. Note. For other cases, see Parent and Child, Cent. Dig. § 176; Dec. Dig. § 17.*]

4. INDICTMENT AND INFORMATION (§ 159*)—AMENDMENT-TIME.

Under Code Cr. Proc. § 293, authorizing an amendment of an indictment as to time, where accused cannot thereby be prejudiced in his defense on the merits, an indictment charging one with abandoning his child in destitute circumstances, and omitting to furnish necessary food and shelter for the child, may be amended as to time as against the objection that by the amendment a different crime is alleged; time not being an essential of the crime.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 513; Dec. Dig. § 159.*]

5. INDICTMENT AND INFORMATION (§ 176*)-ISSUES-PROOF-VARIANCE.

A variance between the indictment and the proof respecting the date on which a crime was committed is immaterial, unless time is a necessary ingredient of the offense.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. 548; Dec. Dig. § 176.*]

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

6. INDICTMENT AND INFORMATION (§ 160*) — AMENDMENTS-DISCRETION OF COURT.

The court may in its discretion allow an amendment to an indictment as to time either at the opening of the trial relying on the statement of the district attorney as to what the proof will be, or it may wait until the discrepancy as to date has been developed by the proof.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. 515; Dec. Dig. § 160.*]

7. PARENT AND CHILD (§ 17*)—ABANDONMENT-OFFENSES.

Where a father, after having for sufficient reasons left his family and furnished money and arranged for their care and protection, subsequently voluntarily discontinued all provisions, as a result of which his children under 16 years of age were left in destitute circumstances, he was guilty of violating Pen. Code, § 287a (Pen. Law, § 480), punishing a parent who abandons a child in destitute circumstances, and omits to furnish necessary food and shelter for the child.

[Ed. Note. For other cases, see Parent and Child, Cent. Dig. § 176; Dec. Dig. § 17.*]

8. PARENT AND CHILD (§ 17*)-ABANDONMENT-OFFENSES.

The refusal of the wife to live with her husband is no defense to a prosecution of the husband for abandoning his child in destitute circumstances, and omitting to furnish necessary food and shelter for the child, in violation of Pen. Code, § 287a (Pen. Law, § 480).

[Ed. Note. For other cases, see Parent and Child, Cent. Dig. § 176; Dec. Dig. § 17.*]

Appeal from Court of General Sessions, New York County.

Charles Edward Lewis was convicted of abandoning his children in destitute circumstances, and he appeals. Affirmed.

Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.

George W. Rulison, for appellant.
Robert S. Johnstone, for the People.

SCOTT, J. The defendant was tried for and convicted of the crime of abandoning children under 16 years of age in destitute circumstances, and omitting to furnish necessary and proper food, clothing, and shelter for such children. The crime charged is defined in section 287a of the Penal Code, which was added by chapter 168, p. 360, Laws 1905, and has now been re-enacted as section 480 of the penal law. It reads as follows:

"A parent or other person charged with the care or custody for nurture or education of a child under the age of sixteen years, who abandons the child in destitute circumstances and willfully omits to furnish necessary and proper food, clothing or shelter for such child is guilty of felony, punishable by imprisonment for not more than two years, or by a fine not to exceed one thousand dollars, or by both. In case a fine is imposed the same may be applied in the discretion of the court to the support of such child. Proof of the abandonment of such child in destitute circumstances and omission to furnish necessary and proper food, clothing or shelter is prima facie evidence that such omission is willful.

This section is one of a number enacted for the protection of infant children, and applies only to a case wherein there is both abandonment and a failure to provide. It differs from section 287 of the Penal

Code, which makes it a crime to desert a child in any place with the intention of wholly abandoning it. This applies to an act of physical desertion under circumstances which render it probable that the life or health of the child may be imperiled, or it may be subjected to suffering or bodily harm. Hence it has been held that leaving children in the custody of their mother, even without provision for their support, will not constitute a violation of section 287. People v. Joyce, 112 App. Div. 717, 98 N. Y. Supp. 863. Section 288 of the Penal Code makes it a misdemeanor for a parent to willfully omit, among other things, proper medical attendance for a minor child. This crime contains no element of abandonment or desertion. People v. Pierson, 176 N. Y. 201, 68 N. E. 243, 63 L. R. A. 187, 98 Am. St. Rep. 666. But, under section 287a, both abandonment in destitute circumstances and failure to provide must exist, although it is not essential that the physical act of leaving the child and the failure to provide shall coincide as to time. The facts upon which the defendant was convicted are simple. He and his wife were married in December, 1902, and had two children who on August 1, 1907 (the date upon which the crime is charged to have been committed), were, respectively, 31⁄2, and 2 years of age. Defendant and his wife separated in May, 1904, and were reunited in September, 1904, about 10 months before the second child was born. He left her again in May, 1905, and remained away until April, 1907, during which period he sent about $10 a week for the support of his wife and children. In April, 1907, he returned to his wife, who with her children was then staying with her parents, who were in extremely indigent circumstances. Defendant remained but a few days, and finally left his wife and children on April 26, 1907, but continued to send her about $10 a week until July 22, 1907, after which date he sent no further money, and in no other way undertook to provide for his wife and children, but in August, 1907, went to South Dakota, where he subsequently began an action for divorce.

The assignment of error upon which the defendant lays most stress relates to an amendment of the indictment upon the trial. The indictment as found charged the crime as having been committed on April 26, 1907, the date on which the defendant physically left his children, but no conviction could have been had as of that date because he did not then leave the children in destitute circumstances, but continued to provide for them until late in July, 1907. At the opening of the case the district attorney, who had given previous notice of his intention to the defendant's counsel, stated that at the proper time, after the proofs were in, he should move to amend the indictment so as to allege August 1, 1907, as the date of the commission of the crime, which as he stated would be shown by the evidence to be the true date. At the suggestion of the court, the motion was made at once, and granted. The defendant now urges two objections to this action: First, that by the amendment a different crime was alleged from that charged in the indictment; and, second, that such an amendment can be made only after the proofs are in. The first objection is clearly untenable. Section 293 of the Code of Criminal

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