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First Department, November, 1911.

[Vol. 146. indictment is drawn. These two grounds of objection to the judgment (which are in effect identical) are argued with much force and plausibility, the insistence being that a charge of intent to kill Pasquale cannot be sustained by evidence showing an intent to kill another, in this case Giovanni. Support for these objections is sought to be found in Hollywood v. People (3 Keyes, 55) wherein the Court of Appeals held (in 1866) that a charge of assault upon Mrs. Baily with intent to kill her was not sustained by proof that the defendant shot at Mr. Baily intending to kill him only, but accidentally hit Mrs. Baily. This of course would be a controlling authority, if the same statutory definition of the crime now prevailed which did prevail in 1866. The same statutory definition does not, however, prevail, and the present definition is far broader and more comprehensive. The Hollywood case arose under the Revised Statutes, which were then in force, and thus defined the crime with which Hollywood was charged: “Every person who shall be convicted of shooting at another, or of attempting to discharge any kind of fire arms, or any air-gun, at another, or of any assault and battery upon another, by means of any deadly weapon, or by such other means or force, as was likely to produce death; with the intent to kill, maim, ravish or rob such other person, or in the attempt to commit any burglary, larceny or other felony, or in resisting the execution of any legal process; shall be punished by imprisonment in a State prison for a term not more than ten years.” (R. S. pt. 4, chap. 1, tit. 2, art. 2 [2 R. S. 665), § 36.) The crime for which the present defendant was convicted is thus defined by the Penal Law: “A person who, with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another :

“1. Assaults another with a loaded fire arm, or any other deadly weapon, or by any other means or force likely to produce death; or,

“ 2. Administers to * another, poison,
“Is guilty of assault in the first degree."
(Penal Law [Penal Code, $ 217], $ 240.)

The distinction between the two statutes is obvious when their terms are compared. The crime as defined by the Revised App. Div.] First Department, November, 1911. Statutes consisted of an assault upon a person with intent to kill, maim, ravish or rob the person assaulted, while the crime defined by the Penal Law consists of an assault upon a person with intent to kill any human being or to commit a felony upon the person assaulted or another person. The elements of the crime are (1) an assault and (2) an intent to kill, and it is immaterial whether the intention is to kill the person assaulted or another. It is therefore manifest, and this appears to be conceded by the defendant, that the ruling excepted to would have been unassailable if the indictment had charged, as it might well have done, that the defendant shot Pasquale with intent to kill Giovanni. At the most, even if the evidence showed the intent to kill Giovanni and not Pasquale, there was presented nothing more than a variance between the charge and the proof, which could in no wise have prejudiced the defense. To such a case section 281 of the Code of Criminal Procedure directly applies. It says: “When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.” The indictment as it stands undoubtedly describes the defendant's “act” in shooting with “sufficient certainty” to “identify" it within the meaning of the section above quoted. It specifies accurately the time, place and weapon used and the name of the person assaulted. If there was a variance between the indictment and the proof it consisted only in an erroneous description of the person whom the defendant intended to kill. This was such a variance as might have been summarily cured by amendment upon the trial.

the trial. (Code Crim. Proc. SS 293–295.) It is true that no amendment was in fact made, but that fact is unimportant. By section 542 of the Code of Criminal Procedure it is made the duty of the appellate court to give judgment without regard to technical errors or defects not affecting the substantial rights of the parties. The error, if it was one, in misdescribing the person against whom the defendant entertained the deadly intent, was such an error as is contemplated by section 542, and, as it might have been cured by a summary amendment of the indictment, the failure to make such amendFirst Department, November, 1911.

[Vol. 146. ment in no manner prejudiced the defendant, and may well be disregarded. (People v. Coombs, 36 App. Div. 284, 289; affd., 158 N. Y. 532; People v. Formosa, 131 id. 478, 481.)

It follows that the judgment of conviction must be affirmed.

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

Judgment affirmed.

GIOVANNI CAROZZA, Appellant, 1. ANTONIO Russo, Defendant,

Impleaded with THE PEOPLE'S SURETY COMPANY OF NEW YORK, Respondent.

First Department, November 3, 1911.

Banks

- deposit of money for transmission to foreign country

liability of surety – action at law.

One who has intrusted money to a banker for transmission to a foreign

country may, the failure of the depositary to fulfill his obligation, maintain an action at law against the surety, unless there are numerous other creditors and the claims against the surety exceed the aggregate sum for which it is liable. It is only in the latter case that a claimant is required to sue in equity.

APPEAL by the plaintiff, Giovanni Carozza, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 17th day of February, 1911, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff.

Michael Schneiderman, for the appellant.

Herbert McKennis, for the respondent.

SCOTT, J.:

This is an appeal from the determination of the Appellate Term reversing a judgment of the Municipal Court against the defendant People's Surety Company of New York.

The respondent is sued as the surety, upon a bond of $15,000, for Antonio Russo, a banker, to whom the plaintiff intrusted the sum of $100 for transmission to Italy, and who failed to transmit said sum or to return it to plaintiff. The facts are First Department, November, 1911. similar in many respects to those considered by this court in Guffanti v. National Surety Co. (133 App. Div. 610; affd., 196 N. Y. 452) and Musco v. United Surety Co. (132 App. Div. 300). The plaintiff sufficiently proved the delivery of the money to Russo; his undertaking to transmit it; his failure to do so, and his absconding without having repaid the zum. Under these circumstances the liability of the defendant is established under the cases cited. The only defense attempted, and one which has commended itself to the learned Appellate Term, is the contention that while plaintiff may have a perfectly valid claim against respondent, it is one which may not be prosecuted in an action at law, but may be recovered only in an action in equity. Hence it is argued that, since the Municipal Court has no equitable jurisdiction, it cannot enforce plaintiff's claim. This contention rests upon certain expressions of this court and the Court of Appeals in the course of the opinions rendered in Guffanti v. National Surety Co. (supra) and Illinois Surety Co. v. Mattone (138 App. Div. 173). The respondent's contention upon this point fails because it is built upon excerpts from opinions without regard to the particular facts before the court in the cases cited, or to the questions which the court was therein called upon to consider. It may be said of the respondent's argument, as was recently said by the Court of Appeals: “Doubtless there are isolated quotations from the charter as it was then assumed to be and expressions of opinion by the learned judge writing the opinion,* which construed by themselves might inferentially support the position of the present appellant [respondent], but, as is well understood, this is not the proper method by which to determine the scope of a decision. The opinion must be interpreted as a whole, and whatever was said must be tested by reference to the actual question then before the court.” (Hogan v. Board of Education, 200 N. Y. 370.) If the opinions in Guffanti v. National Surety Co. and Illinois Surety Co. v. Mattone are carefully read in accordance with the foregoing rule, it will be perceived that there was present in each of these cases a controlling fact, absent in the present First Department, November, 1911.

App. Div.]

* Nee Gunnison v. Board of Education (176 N. Y. 11). — [REP.

(Vol. 146. case, which led to the conclusion that the liability of the surety should be determined in a suit in equity, rather than by numerous actions at law. That fact was, as it was alleged, that in each case the claims upon the indemnitor largely exceeded the aggregate sum for which it was liable as surety. This fact led the court to hold, in those cases, that the amount of the surety's liability should be treated as a fund for the benefit of all claimants, to be distributed among them pro rata. Hence, where that fact appeared it was considered that the fund should be distributed in equity, and that separate actions at law by individual claimants should be stayed. In the Guffanti case this court said: “Undoubtedly a single creditor, if it did not appear that there were others, might maintain an action upon the bond for the satisfaction of his individual claim." In the same case the Court of Appeals said: “The condition of the bond read in connection with section four of the act would seem to give a person who has deposited money, which is subsequently embezzled, a right of action upon the bond in his individual capacity.” There is nothing in the nature of the plaintiff's claim which precludes its prosecution at law, and it does not appear anywhere in the case that the claimants against the surety are numerous, or, in fact, that there are any claimants at all except this plaintiff. There is, therefore, no reason for relegating plaintiff to an equity suit or denying him his remedy at law. This conclusion finds support in the opinion recently handed down by the Appellate Division in the Second Department in Alessandro v. People's Surety Co. (143 App. Div. 145).

The determination of the Appellate Term must be reversed and the judgment of the Municipal Court affirmed, with costs to the appellant in this court and in the Appellate Term.

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

Determination reversed and judgment of Municipal Court affirmed, with costs to appellant in this court and in the Appellate Term.

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