lic competition in order to preclude favoritism and jobbing. I fail to see the right or the justice in imposing upon the city at large the burden of the expense for the local improvement, or any portion of it, where the contract for doing it was awarded under the provisions of the law, and it is not alleged or shown that it was influenced by any fraud or collusion. I am therefore of the opinion that the orders of the general term and of the special term should be reversed, and the petition dismissed.

RUGER, C. J., and ANDREWs, J., concur.

(109 N. Y. 413)

PEOPLE v. PALMER.

(Court of Appeals of New York. June 5, 1888.) CRIMINAL LAW-FORMER JEOPARDY-NEW TRIAL AFTER REVERSAL.

Under Pen. Code N. Y. § 30, providing that one acquitted or convicted of a crime consisting of different degrees cannot thereafter be indicted or tried for the same crime in any other degree; and sections 464 and 544, providing that the granting of a new trial places the parties in the same position as if no trial had been had, and that the trial shall proceed on that basis,-one who has been indicted of assault in the first degree, and convicted of assault in the third degree, and on appeal has obtained a reversal for errors in the trial, is triable again for assault in the first degree, since his former conviction does not amount to an acquittal as to that degree, and by his appeal from it he waived his right to plead it in bar of the new trial for which he asked.

Appeal from general term, supreme court, Third department.

The defendant was indicted, in December, 1885, for an assault in the first degree, at the Greene county oyer and terminer, and was tried before the court of sessions. He was convicted of an assault in the third degree, and appealed to the supreme court, at general term, from the judgment of conviction. That court reversed the judgment, on questions of law only, and ordered a new trial, remanding the action to the court of sessions for further proceedings. From the general-term judgment the defendant appealed, so far as it ordered a new trial, and remitted the action to the court of sessions. He appealed, also, from an order of the general term which denied his motion to amend its order of reversal, etc., so as that it should state that defendant's application to be discharged on the reversal of the judgment was denied; that the defendant did not, upon his appeal, ask for a new trial; and that the new trial is granted only as to an assault in the third degree.

Sidney Crowell, for appellant.

Frank H. Osborn, for respondent.

GRAY, J., (after stating the facts as above.) The appellant contends that, as he was convicted of assault in the third degree, he was thereby acquitted of assault in the higher degrees, and cannot be again tried under the indictment, and that, upon the reversal of the judgment of conviction, there was nothing left but a charge of assault in the third degree, of which charge the oyer and terminer had not jurisdiction. While that court had jurisdiction of the offense charged in the indictment, a charge of assault in the third degree seems exclusively cognizable, in the first instance, by the court of special sessions, except a certificate that it should be prosecuted by indictment be allowed by the county judge or a supreme court justice. See Code Crim. Proc. §§ 21, 22, 56, 57. The question brought before us by this appeal is whether, when the defendant, having been found guilty and sentenced for a lower degree of the crime charged in the indictment, has appealed to the supreme court, upon exception, and has succeeded in reversing the judgment, and a new trial is ordered, and the cause remanded to the trial court for further proceedings, he can be tried again under the indictment, without regard to the former trial

and conviction. Can he plead, then, in bar of another trial, for the offense charged in the indictment? The question is of the gravest importance to the administration of justice under the laws of this state, which provides for the punishment and trial of offenders. It involves the construction and validity of certain sections of the Penal Code and of the Code of Criminal Procedure, which were enacted by the legislature in respect of appeals and new trials. If the reasoning of the prisoner's counsel is correct, then the defendant's appeal, based on errors excepted to upon his trial, must result, where not in af. firmance, in his discharge. And in all other cases the prisoner would take his appeal from a judgment of conviction of a lesser degree of the crime charged, with the assurance that if he could secure a reversal of the judgment, and a new trial, he could not fare worse than before, in any event. He would risk nothing, and he might wholly escape punishment for the offense of which he stood charged. Whatever conflict of opinion existed in the courts, prior to the adoption of the Code of Criminal Procedure, as to a prisoner's position upon a new trial being ordered, we hold has been settled and removed by the passage of the act of the legislature. Much of the doubt and confusion surrounding the question as to the effect of a new trial seems due to a mistaken view of the operation of the constitutional inhibition against subjecting a person to be twice put in jeopardy for the same offense. Const. N. Y. art. 1, § 6. That provision has been the subject of much discussion in the reports and in text-books. To enter into it I do not believe to be necessary, to the end we have in view, in deciding this case upon principle, and in construing the statute. Its incorporation into the federal constitution and into the constitutions of states, was but the recognition and the application, in a stronger form of expression, of the common-law doctrine. In my opinion, nothing has been done in the legislative enactment of the sections of the Code under consideration to subvert the constitutional provision. That provision in nowise has the effect of restricting the power of the legislature to enact rules of procedure in criminal cases, so long as the enactment does not violate the protection guarantied by it to a party. In Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. Rep. 443, it was held that any law passed after the commission of an offense which, in relation to that offense or its consequences, alters the situation of a party to his disadvantage, was an ex post facto law. It was said by Mr. Justice MILLER that the law of Missouri was that when a conviction was had of murder in the second degree, on an indictment charging murder in the first degree, if the conviction were set aside, the defendant could not again be tried for murder in the first degree. He added, at page 225, as follows: "There is no question of the right of the state of Missouri, either by the fundamental law or by an ordinary act of legislature, to abolish this rule, and that it is a valid law as to all offenses committed after its enactment. The question here is, does it deprive the defendant of any right of defense which the law gave him when the act was committed, so that, as to that offense, it is ex post facto?" In that case the constitution of Missouri was amended after the homicide. It abrogated the old rule, and provided that when a conviction for a lower degree of the crime, upon an indictment for a higher, was lawfully set aside, the conviction for the lower degree did not operate as an acquittal of the higher. After the amendment went into effect, the defendant's plea of murder in the second degree was made. He was sentenced to 25 years' imprisonment. That sentence was set aside, and he was tried again, and, against his protest and refusal to plead over, was convicted of murder in the first degree. It was on those facts that the United States supreme court held the constitutional amendment ex post facto as to the defendant; but the right of the state was recognized to abolish a previously existing rule as to commission of crimes, and the trial of the person charged with the commission, and to create a new rule of procedure. The condition and rights of a person tried and convicted for the commission of a crime have been frequently

the subject of legislation. The right to review by writ of error or by appeal did not belong to the prisoner at common law. Until the third of Queen Anne, a writ of error in any criminal case was held to be merely ex gratia. In the Aylesbury Case, 1 Salk. 103, arising in that year, it was held that it must be granted ex debito justitia, except in cases of, treason or felony. But Lord MANSFIELD said, (Rex v. Wilkes, 4 Burrows, 2550,) in respect of that decision, that it meant the writ should be granted where there was a probable error, and that "it cannot issue now without a fiat from the attorney general, who always examines whether it be sought merely for delay or upon probable error." In 1801 it was enacted by the legislature of this state that writs of error in criminal cases, not capital, shall be considered as writs of right, and issue of course, subject to the regulations provided by law. Laws 1801, c. 25. The law continued thus, as to writs of error, until the adoption of the Revised Statutes, when the remedy, by bill of exceptions, was extended to criminal cases, in the same cases and in the like manner as in civil cases. It was there provided that, in the trial of any indictment, exceptions to any decision of the court may be made by the defendant, and a bill thereof shall be settled and filed, and returned upon a writ of error, or upon a certiorari. 2 Rev. St. (Edm. Ed.) 736, § 21. By the adoption of the Code of Criminal Procedure, writs of error and of certiorari in criminal actions were abolished, and thereafter the only mode of reviewing a judgment or order in a criminal action was by appeal, which may be taken as a matter of right by the defendant from the judgment of conviction. Code Crim. Proc. §§ 515, 517, 520. Section 36 of the Penal Code provided that, "where a prisoner is acquitted or convicted upon an indictment for a crime consisting of different degrees, he cannot thereafter be indicted or tried for the same crime in any other degree," etc.; but that section has reference only to cases where the prior judgment of conviction has remained unreversed. This is made evident from a reading of the sections of the Code of Criminal Procedure. They serve to show plainly that the legislature contemplated no such result as is claimed by the appellant's counsel in the event of a new trial being ordered upon a judgment reversing the judgment of conviction. Section 455 of that Code preserved to the defendant his right, which previously existed, to take exceptions to a decision of the court upon a matter of law by which his substantial rights are prejudiced. Section 543 provides that "upon hearing the appeal the appellate court must either reverse or affirm the judg ment appealed from, and, in cases of reversal, may, if necessary or proper, order a new trial." Section 464 provides that "the granting of a new trial places the parties in the same position as if no trial had been had;" and by section 544 it is provided that, "when a new trial is ordered, it shall proceed in all respects as if no trial had been had."

*

These provisions of the statute are clear and explicit, in nowise contravene the letter or the spirit of the fundamental law, and their meaning should not be perverted. It would be a grievous miscarriage of justice, and the intent of the law would be thwarted, if it should be held that a reversal, upon a previous appeal, for errors of law upon his trial, had the effect of putting it out of the power of the people to further try him under the indictment, when his guilt might be competently established. We do not think such is the result. The effect of the defendant's appeal is merely to continue the trial under the indictment in the appellate court, and, if reversal of the judgment of conviction follows, that judgment, as well as the record of the former trial, have been annulled and expunged by the judgment of the appellate court, and they are as though they never had been; while the indictment is left to stand, as to the crime of which the prisoner had been charged and convicted, as though there had been no trial. Only where the result of the former trial was in effect an acquittal of another crime charged in the indictment may he plead that result in bar of further prosecution for that crime. If the defendant takes

an appeal from the judgment of conviction, he must be deemed to ask for a correction of errors made upon his trial, and to waive his constitutional protection. Of necessity, he must be deemed to ask for a new trial. By taking the appeal to the supreme court, power is conferred upon that court to continue and review the prisoner's trial, and, upon a reversal, to pronounce such judgment as it deems just within the terms of the statute. It may affirm the proceedings below, or reverse, and either order a new trial or discharge the prisoner. That no constitutional right of the party is invaded, must be a selfevident proposition, or it is a privilege which is granted, of which he may, but not must, avail himself. I think that the sounder doctrine which recognizes a distinction between jeopardy incurred with the consent of the prisoner and jeopardy incurred without that consent. We hold the jurisdiction of the oyer and terminer to try the defendant again under his indictment is not affected. The offense charged was within its jurisdiction, and, the judgment of the trial court having been reversed for errors committed on the trial, the case stands as though there had been no trial. The verdict is expunged, and there is no determination in regard to the matter but the judgment of the appellate court. The defendant must go back, and stand his trial under the indictment, as though he had never been tried; for he himself has renounced the bar which was effective to prevent his further trial for the offense charged. The judgment appealed from should be affirmed.

All concur.

(109 N. Y. 496)

WEBBER V. PIPER et al.1

(Court of Appeals of New York. June 5, 1888.) MASTER AND SERVANT-NEGLIGENCE OF FELLOW-SERVANT.

Evidence that plaintiff was injured while in defendants' employ, the accident being due to the dullness of a circular saw, and the need of its being reset; that the employers had provided sharp saws to replace dull ones; and that a co-servant, whose duty it was to sharpen and reset saws when dull, had failed to do so on this occasion, though requested by plaintiff,-shows no negligence or default on the part of plaintiff's employers.1

Appeal from general term, supreme court, Second department.

Action by Daniel Webber against Winfield Piper and another for injuries received while in defendants' employ. Judgment for defendant, which was affirmed by the general term, and plaintiff appeals.

James C. Church, for appellant. E. M. Shephard, for respondent.

FINCH, J. The plaintiff was injured while using a circular saw in the factory of the defendants, who were his employers, and gave evidence tending to establish that the accident was due to the dullness of the saw, and the need of its being sharpened and reset. These saws became dull by use, and the defendants had furnished duplicates, so that one could replace the other when there was need, without delay to the workmen. It seems to have been the duty of one Myers, who was also a servant of the defendants, to care for and repair the machinery, and reset and sharpen the saws when necessary, and the plaintiff testified that, on the morning of the accident, he asked for another saw because the one in use was dull, and Myers replied that he had no time then to sharpen a saw, and directed plaintiff to go on with his work, adding that at noon he would see what he could do. Before that time arrived, the injury occurred. On this state of facts the plaintiff was nonsuited, and that judgment has been affirmed by the general term. We are of opinion that the decision was correct, for the reason that the master's duty was performed

'Affirming 38 Hun, 353.

2See McGee v. Cordage Co., (Mass.) 1 N. E. Rep. 745, and note; Daley v. Railroad Co., (Mass.) 16 N. E. Rep. 690.

when he furnished suitable saws, and the means and conveniences for keeping them sharp and properly set. The saw, though dull, was not defective in any legal sense, and the negligence, if any, was that of Myers, whose duty in sharpening and setting the saws was that of a fellow-servant. A contrary rule might carry us to the extent of saying that where the master furnished sufficient and adequate machinery, but its running became dangerous to the operative unless well oiled, that the owner who had furnished the oil and cans, and a suitable person to keep the journals and bearings properly oiled, was liable for the neglect or omission of that servant. There are many matters of detail in the management of safe and adequate machinery, which must be intrusted to the operatives, and as to which the master owes no duty except the employment of competent workmen; and we deem this a case of that character. The line of division between the duty of the master to furnish and maintain safe and adequate machinery, and that of the operative to manage and handle it with prudence and care, is difficult to define by any general description; but is quite obvious when each case as it arises comes under consideration. In the one before us, the neglect, if any, was in a detail of the management of the machinery. A master-builder might furnish proper tools to his workmen, but it would not be his duty to sharpen every chisel as it became dull or set every saw when that need arose. The appellant relies upon the case of Kain v. Smith, 89 N. Y. 375. If, in that case, the master had furnished another jigger, perfect in all respects, and safe and adequate for use, and the neglect had been that the foreman used the old one, which had become unsafe, when he might have used the new one, a very different case would have been presented. Here the master supplied saws enough, and the means of sharpening and resetting; and, if the servants neglected to avail themselves of the means of safety provided, the master was not in fault, for the saw was not defective, but merely dull from use. Its ordinary efficiency was impaired, but it had not thereby become a defective or dangerous machine. The master, on the facts before us, was not negligent or in default, and for that reason incurred no liability for the injury which happened. The judgment should be affirmed, with costs.

All concur.

(109 N. Y. 482)

BANK OF MONTREAL v. RECKNAGEL et al

(Court of Appeals of New York. June 5, 1888.)

BANKS AND BANKING-DRAFTS-BILLS OF LADING.

Defendants authorized plaintiff, a foreign bank, to allow a foreign firm to draw for defendants' account against a certain number of bales of Manilla hemp, to be purchased and shipped by a certain vessel, advice to be given plaintiff, accompanied by a bill of lading, with abstract of invoice indorsed thereon for the property shipped. Plaintiff accepted, and cashed drafts against "bales of hemp. An abstract of invoice for "bales of Manilla hemp" was indorsed on each bill by the consignor after it had been signed by the captain, but without his knowledge. A letter of advice described the shipment as "bales of hemp." The foreign firm failed and absconded, and most of the shipment proved to be matting only; the rest being Manilla hemp. Held, that plaintiff cannot recover of defendants the amount paid on the drafts accepted against the matting.

Appeal from general term, superior court, city of New York.

The plaintiff is a Canadian banking corporation, having agencies in London and in New York city. The defendants are a firm doing business in the latter city, under the name of Recknagel & Co. On December 1, 1881, the defendants requested the plaintiff's New York agents to open by telegraph a credit in favor of Vogel & Co., of Hong Kong, China, in the following communication, in writing: "DECEMBER 1, 1881. Please telegraph authority to Vogel & Co., Hong Kong, to draw at 6 mos. for our account against consular invoice, and full set bills of lading of 2,500 bales Manilla hemp, p. Robinson, at the rate of 4 pounds p. bale, on a basis of 8 shillings sterling, freight filled