First Department, July, 1911.

[Vol. 146. This court held that the complaint failed to state a cause of action against the defendants personally, since it showed that they had made the contract solely on behalf of the syndicate (123 App. Div. 236; 130 id. 451). Upon an appeal from a judgment upon the pleadings dismissing the complaint, the Court of Appeals held that even so, the complaint stated a cause of action on the assumption that the defendants were partners with the other subscribers to the agreement. CULLEN, Ch. J., said: "In this view of the case the respondents have been sued on an obligation incurred jointly with other parties who should have been joined as defendants. The objection to such nonjoinder should have been taken by demurrer or answer. It has been raised by neither. Hence, the objection has been waived and the action may properly proceed against the present defendants alone. (Code Civ. Pro. § 499.)"

What was held on this point, therefore, was that an action upon a partnership obligation can be maintained upon an allegation that the defendants were jointly liable with others without disclosing who the others are, unless the defendants raise the objection by demurrer or answer.

In the case now before us the identity of the partnership and the obligation sued on were clearly set forth and the complaint alleged that defendants were jointly liable. Under the rule laid down by the Court of Appeals in the last case cited it necessarily follows that each defendant, by his general denial, denied only his liability and did not put in issue the personnel of the partnership. By failing to raise the question of nonjoinder, each defendant thereby waived the objection, and so long as the proof established his liability, it was entirely immaterial who the other partners were.

The judgment appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.

INGRAHAM, P. J., LAUGHLIN, MILLER and DOWLING, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.

App. Div.]

First Department, July, 1911.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARSHALL MARKS, Appellant.

First Department, July 7, 1911.

Crime-rape-intercourse with female under age of consent - evidence age of complaining witness.

Appeal from a judgment convicting the defendant of rape in the second degree for having sexual intercourse with a female under eighteen years of age. Evidence examined, and held, insufficient to show that the complaining witness was under eighteen years of age, and that, in the interests of justice, a new trial should be granted. DOWLING, J., dissented.

APPEAL by the defendant, Marshall Marks, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 20th day of May, 1910, convicting the defendant of the crime of rape in the second degree, and also from an order denying the defendant's motions for a new trial and in arrest of judgment.

Alexander A. Mayper, for the appellant.

Stanley L. Richter, for the respondent. LAUGHLIN, J.:

The defendant had sexual intercourse with the complaining witness, who, however, was in full possession of her faculties, and willingly consented without fraud or duress having been practiced upon her. No claim was or could have been made in these circumstances that the crime of rape in the first degree was committed. The conviction followed the indictment, which was for rape in the second degree, and by the provisions of section 2010 of the Penal Law this crime is established by mere proof of the fact that the defendant had sexual intercourse with a female, not his wife, who was at the time under the age of eighteen years. By that enactment, and the statutory provisions from which it was taken, the Legislature, in its wisdom, determined to make the crime dependent upon the age of the female, and thereby sexual intercourse with a female the day before she attains the age of eighteen years, if not under cir

First Department, July, 1911.

[Vol. 146. cumstances constituting the crime of rape in the first degree, is a felony; but it would not be a crime at all, unless under another statute (Penal Law, §§ 100, 101) relating to adultery, if the intercourse took place the day after. The manifest purpose of this legislation was to protect the morals of young girls; and to render the enactment effective neither the consent, nor the previous unchastity of the girl, nor her representations nor information derived from others as to her age, nor her appearance with respect to age, is a defense to a prosecution, but such facts may doubtless be taken into consideration by the court in passing sentence. These considerations emphasize the importance of requiring satisfactory proof that the female was under the age of eighteen years, and we think the evidence in this record on that point is not of a sufficiently reliable character to permit the conviction to stand. It depends entirely on the testimony of the complaining witness and of her father. The latter testified that he brought his daughter to this country on the 20th day of February, 1909, and that he had another daughter living, and that two others had died. It does not appear whether the mother of the complaining witness is alive, and the other daughter was not called as a witness.

The first act of intercourse between the defendant and the complaining witness took place on the 6th day of March, 1910, in a hotel in the borough of Manhattan, New York, where they registered under an assumed name as man and wife. Both the defendant and the complaining witness were at that time employed by a manufacturer of women's jackets at a shop in said borough. Frequently after that they spent the night at the same hotel, defendant on some occasions registering and the complaining witness registering for them under assumed names on many other occasions. Prior to the first intercourse between them she had been arrested, convicted and fined by a city magistrate on the charge of disorderly conduct for soliciting men on the street in said borough, and at that time she gave her age to the officer who made the arrest and in court when sentence was passed as twenty-three. She did not know the year in which she was born and did not give her birthday, but testified that she would be eighteen years of age in July, 1910, or about four months after the first intercourse between

App. Div.]

First Department, July, 1911.

them. She also testified that her first intercourse was with the defendant on the sixth day of March; but she does not deny that she was arrested and convicted of disorderly conduct in soliciting men on the streets four days prior to that time and gave her age as twenty-three years. In view of those uncontroverted facts her testimony to the effect that she was innocent until she had intercourse with the defendant is highly improbable, and her entire evidence is rendered unreliable. Her father differs from her one year with respect to her age. He did not know the year she was born and did not give her birthday, but said she would be seventeen in July, 1910. He testified that he did not know the year he was born or the year that any of his children were born. He also testified that he joined the army in 1865, and that he was only forty-four years of age at the time of the trial, which was more than forty-four years after 1865. The complaining witness testified that she gave an assumed name to the hotelkeeper, no part of which was her name, and that she gave a different name, no part of which was her own name, when she was arrested. It appears that the complaining witness was again arrested for disorderly conduct on the 6th day of March, 1910, and she informed the officer who made the arrest that she was twenty-four years of age, and gave the same age when she was arraigned in court. She was not living with her father and was out of work most of the time. According to the testimony of the woman with whom she was living she at times stated that she was seventeen years of age, at other times twenty years and at still other times twenty-three years. She was called to the stand in rebuttal and denied that she had at any time informed this woman that she was twenty years of age, but did not deny that she gave her age as seventeen years and twenty-three years. She admitted that she gave her age as twenty-three years at the police station, but she said that the defendant had suggested that she give her age as twenty-three if she was arrested at any time, and that if she did not she would be sent back to Italy. It is further suggested in support of the determination of the jury that the complaining witness was not eighteen years of age that the jury had the benefit of seeing her at the time of the trial, which took place on the 12th day

First Department, July, 1911.

[Vol. 146.

of May, 1910, and that by virtue of the provisions of section 817 of the Penal Law such personal inspection afforded material evidence.

We are of opinion, however, that the appearance of the complaining witness could not materially aid the jury in determining whether her true age on March sixth was eighteen years and one second, which would have required an acquittal, or seventeen years and eight months, which required conviction. There is evidence tending to show that defendant had been informed that the complaining witness was under eighteen years of age. By not taking the stand and controverting that evidence of course he has left it open to be accepted as true, but, as already observed, the crime does not depend upon his knowledge as to the age of the female, and if she were in fact eighteen there would be no crime even though he thought she were only fourteen and the hearsay information which had been communicated to him was no proof of the fact with respect to her age.

We think, therefore, that the interests of justice require that the defendant be granted a new trial.

It follows that the conviction should be reversed and a new trial ordered.

INGRAHAM, P. J., MCLAUGHLIN and MILLER, JJ., concurred; DOWLING, J., dissented.

Judgment reversed, new trial ordered. Order to be settled on notice.

RACICH ASBESTOS MANUFACTURING COMPANY, Respondent, v. SARAH J. BROOKS and CHARLES J. BROOKS, Appellants, Impleaded with JACOB RACICH, Defendant.

First Department, July 7, 1911.

Equity specific performance - evidence justifying decree.

A court of equity will not decree the specific performance of an agreement unless it be definite and certain in its terms and be established by satisfactory proof.