FIRST DEPARTMENT, DECEMBER TERM, 1874.

Quare whether there is any appeal from the Court of Special Sessions except that provided by article 4, title 3, part 4, chapter 2 of the Revised Statutes.

An indictment is good if the day and year can be collected from the whole statement, though they be not expressly averred.

Where a prisoner testifies in his own behalf, it is the duty of the court to interrogate him as fully as may be necessary, to test the truth of his direct testimony.

WRIT of certiorari to the Court of Special Sessions of the Peace in the city of New York, to review the conviction of Thomas Gill and Effie Morton, of the misdemeanor of keeping a disorderly house.

Peter Mitchell, of counsel for the appellants.

B. K. Phelps, district attorney, for the respondents.

BARRETT, J.:

(1.) The justices of the Special Sessions return to the writ of certiorari that the appellants were originally brought before a committing magistrate, and there upon elected and required to be tried by such Court of Special Sessions. This return is not traversed, nor is there anything in the record, impugning its truth. This disposes of all the objections to the jurisdiction of the court.*

(2.) At the close of the trial, and after the prisoners had been sentenced, counsel desired the court to note an appeal to the Court of General Sessions for a rehearing of the case. The point is now made, that, after such appeal, the court erred in committing the prisoners to the penitentiary. The notice given to the court below, was not of an intention to remove the conviction by certiorari, and an offer to become bound in a recognizance to appear at the General Sessions, as provided by article 4, title 3, part 4, chapter 2 of the Revised Statutes. These provisions were abolished by chapter 769 of the Laws of 1857, but seem to have been restored by chapter 339 of the Laws of 1859. ||

We have not been referred to any law, giving a direct appeal to the General Sessions, with a rehearing in that court, to a person convicted at the Special Sessions, except, perhaps, in cases of petit

*The People v. Riley, 5 Park. C. R., 404; Laws of 1855, chap. 337, § 5; Laws of 1859, chap. 491, § 1.

+2 R. S. (Banks' 4th ed.), p. 903, § 55.

+$25.

I$1.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

larceny, or assault and battery, not riotous; and then only where the prisoner had not demanded such trial.* But the question does not properly arise upon certiorari. That brings up the record and the proceedings to and including, but not subsequent to judgment, and we have simply to determine whether any error has been shown, such as would justify a reversal of the judgment. If, as claimed, the judgment became void by a simple appeal to the General Sessions, then this certiorari was improperly issued, and should be quashed. The remedy in such case would be to offer the Special Sessions bail for trial at the General Sessions, and if this were refused, to procure the release of the prisoner, pending the new trial, upon habeas corpus issued for the purpose of fixing and taking such bail.

(3.) The remaining points call for no special consideration. That, as to the constitution of the court, has been decided adversely to the views of the appellants by the Court of Appeals. The objection to the form of the judgment of the court below, is not well taken. It is questionable whether even the particular situation of the house, by way of local description, need be stated. The objection to the form of the complaint, is equally untenable. It was not taken at any stage of the proceedings below, and the idea now advanced is certainly somewhat far fetched, viz., that a complaint is to be deemed barred by the statute of limitations, because no specific date is named. The complaint, however, does substantially aver that upon the 24th day of May, 1874, the appellants were the keepers of the disorderly house in question; that is clearly to be gathered from the entire complaint and its verification. The rule is well settled, that the indictment will be good if the day and year can be collected from the whole statement, though they be not expressly averred. ‡

(4.) There is nothing in the exceptions as to the admission of testimony, nor was the objection specified under the appellants' fifth point, taken to any particular question. It is evident from a perusal of the entire case, that the prisoners were not prejudiced by the admission of illegal evidence.

(5.) The remaining ground upon which a reversal is claimed, is that the court below erred in specially interrogating the prisoner.

*2 R. S. (Edmonds' ed.), pp. 739, 740, §§ 22, 23, 26.

+2 Bish. Cr. Pro., § 111. 1 Star. Cr. Pl., ed. 55; 1 Bish. Cr. Pro., § 391.

FIRST DEPARTMENT, DECEMBEK TERM, 1874.

Gill chose to take the stand as a witness upon his own behalf, and it then became perfectly proper, and indeed the duty of the court, to interrogate him as fully as might be needful to test the truth of his direct testimony.

(6.) We have gone over the evidence, and are quite satisfied that the prisoners were guilty, and that the judgment was correct.

The conviction and judgment of the Court of Special Sessions should therefore be affirmed.

DAVIS, P. J., and DANIELS, J., concurred.
Judgment and conviction affirmed.

SYLVANUS JUDD AND ANOTHER, RESPONDENTS, v. CHAUNCEY A. SMITH, IMPLEADED WITH WALTER MURRAY, APPELLANT.

Check — drawer of, is not liable without presentment and notice.

An action will not lie on a bank check against the drawer until after notice of presentment and non-payment.

Harker v. Anderson (21 Wend., 372) followed.

APPEAL by the defendant, Smith, from an order giving plaintiff judgment on account of the frivolousness of a demurrer to the complaint.

L. B. Bunnell, for the appellant, cited Harker v. Anderson (21 Wend., 383), Boehm v. Sterling (7 T. R., 419), Cruger v. Armstrong (3 John. Cas., 5), Merchants' Bank v. Spicer (6 Wend., 443).

A. Prentice, for the respondents, cited Gough v. Staats (13 Wend., 549), Mohawk Bank v. Broderick (10 id., 304), Murray v. Judah (6 Cowen., 490), Bowen v. Newell (8 N. Y., 190).

WESTBROOK, J.:

The complaint contains two causes of action, and each separately stated. The first is upon a check, dated Jersey City, August 17, 1872, drawn by the defendant, Smith, for the sum of $1,407, upon

FIRST DEPARTMENT, DECEMBER TERM, 1874.

the Union Bank, and payable to the order of the defendant, Walter Murray. The second is upon a similar check of $1,320, dated Jersey City, August 24, 1872. Copies of both checks are given in the pleading, and they are averred to have been indorsed by the defendant, Murray, and delivered for value to the plaintiffs. The complaint further states that the checks were presented for payment, and payment was refused, whereupon they were protested for non-payment, and notice of demand of payment, non-payment and protest given to the defendant, Murray. The complaint fails to state that notice was given to the defendant, Smith, but claims a specified sum as due from both defendants to the plaintiffs on each check, for both of which specified sums they ask judgment, with interest and costs. The defendant, Smith, demurred to the complaint for the alleged reason that it did not "state facts sufficient to constitute a cause of action." Motion was made by plaintiffs for judg ment, on account of the frivolousness of the demurrer, which was granted at the Special Term; and from such order and judgment the defendant, Smith, appeals.

The appeal presents the single question, whether the complaint should have averred notice of the presentment and non-payment of the checks to the drawer.

In Harker v. Anderson it was held, Judge COWEN delivering the opinion, that "an action does not lie on a bank check against the drawer, until after notice of presentment and non-payment."

Edwards, in his Treatise on Bills and Promissory Notes, † says: "It is clear, also, that in an action against the drawer of a check, the holder cannot, in general, recover unless he shows that it has *been presented for payment and dishonored, and that notice of nonpayment has been properly given.

Whilst there is some confusion in the cases, as to the time within which a check payable on demand should be presented, there seems to be none in regard to the necessity of a demand of payment, a refusal to pay, and a notice thereof to the drawer, before he can be made liable by suit. If, therefore, the complaint in an action upon a written instrument, should state every fact which it is necessary to prove upon the trial to hold the parties to it, then this demurrer was well taken. The case of Conkling v. + Page 396.

* 21 Wend., 372.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

Gandall,* is directly in point to prove the affirmative of this proposition, and for the reasons therein given the complaint in this action must be held insufficient and the demurrer well taken. The order appealed from should be reversed, with costs.

DAVIS, P. J., and DANIELS, J., concurred.

Order reversed, with costs.

OLIVER B. HINMAN, RESPONDENT, v. JASON M. BOWEN AND CHARLES M. NICHOLS, APPELLANT.

Partnership agreement of new member to pay debts of old firm — right of creditor to maintain an action on.

This action was brought to recover money loaned, in 1867, to the defendant Bowen, who was then carrying on business in the city of New York. Subsequently the defendant Nichols entered into partnership with Bowen, upon the agreement that the new firm should assume and pay the debts of Bowen. Upon the trial of this action, which was brought against the new firm, Nichols offered to prove that he was induced to enter into the agreement by fraudulent representations made to him by Bowen, and claimed that the promise to pay the old debts was void on account of such fraud. The court excluded the evidence. Upon an appeal from the judgment, hell, that the evidence was proper and should have been received; whatever would be a defense to an action on the promise, brought by the defendant Bowen, would also be a defense to an action brought by the plaintiff.

Merrill v. Green (55 N. Y., 270) followed.

APPEAL, by the defendant Nichols, from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

W. Howard Wait, for the appellant Nichols.

Benjamin K. Phelps, for the respondent.

WESTBROOK, J.:

Upon the trial of this cause, which took place at the New York Circuit held by Mr. Justice BARRETT, on the 18th day of April, 1872, the plaintiff claimed to recover the sum of $2,000 with interest, which he had loaned about the 15th of August, 1867, to the defendant Jason M. Bowen, who was then engaged in * 1 Keyes, 228.