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the time within which the condi- | purports to establish a map, plan tion should be performed. 12 Barb., and new exterior water-line on its 440. The case shows such a easterly side for the city of New waiver. Neglect to perform such York. This line was thereby a condition does not ipso facto de- ordained to be a street called East termine the estate, but only ex- street, running nearly parallel poses it to be defeated and deter- with Avenue A opposite plaintiff's mined at the election of the property, and at a distance of 200 grantor, to be signified by some feet easterly therefrom in the act equivalent to a re-entry at river. The ordinance then procommon law. 12 Barb., 440. vided "That the proprietors of Until such act plaintiffs' rights lands adjoining or nearest and opwere unimpaired. posite to East street, as hereby established, be and they are hereby authorized and directed to make and complete said East street on or before the first day of January, 1860, and on or before the said day to fill and level the spaces between their property and the said East street." By Chap. 763 of the Laws of 1857 a bulkhead and pier line was established about on the line of the lands conveyed by the city.

Also held, That the condition in the deed and the limitation in the ordinance apply to the streets and avenues, and not to the lands outside of them.

Also held, That the license to change the outlet of sewer was revocable at the pleasure of the owner, conferred no rights which could survive the withdrawal of the authority under which it was granted. 84 N. Y., 31; 94 id., 323.

In an action of tort, to recover even unliquidated damages, the allowance of interest by way of damages is in the discretion of the jury. 18 N. Y., 457; 46 id., 361; 89 id., 498.

Also held, That the deposit of materials upon the lot in question by plaintiff, for the purpose of making land, constituted such materials a part of his real estate, and gave him the same right of action for an injury thereto which would accrue to him for similar injuries done to the natural land transferred under his conveyance. 7 Johns., 285; 79 N. Y, 470; 89 id., 498.

On Dec. 26, 1856, the Common Council passed an ordinance which

Vol. 20.-No. 5a.

Held, That while the ordinance, so far as it attempted to establish an exterior line was annulled by the Act of 1857, and conceding that the city was not authorized to establish a line outside of the property it owned, the ordinance was a sufficient authority and consent to construct bulkheads and piers and fill up the lands under water to the line established by said Act, to meet the requirements of the limitation in the "Sinking Fund Ordinance" (recognized and approved by Chap. 225, Laws of 1845), which declares that no grant by the city under that ordinance will authorize its grantee to construct bulkheads, piers, or make lands without first having ob

tained permission from the Com- to have been loaned by it to demon Council.

It is only when the various enactments of a legislative body are plainly dependent upon each other and so inseparably connected in matter and design that they cannot be divided without defeating the object of the statute that the invalidity of one provision will entail that of those remaining. Sedge. on Stat. Construction, 413; 1 Gray, 482; 25 Conn., 290.

Judgment of General Term, affirming judgment for plaintiff on verdict, affirmed.

fendant. The answer denied the making of the loan and alleges that the loan was made to K. & Co., for whom plaintiff acted as broker in the transaction. Upon the trial plaintiff introduced in evidence an envelope which contained the collaterals on which the loan was made. Upon its back was indorsed the date of the loan, the defendant's name and address, the terms of the loan and a list of the collaterals. It contained no promise to pay and no agreement by defendant, and it did not appear for what purpose his name and ad

Opinion by Ruger, Ch. J. All dress were written on the envelope.

concur.

CONTRACT. EVIDENCE.

N. Y. COURT OF APPEALS. The Union Trust Co., applt., v. Whiton, respt.

Decided Oct. 31, 1884.

In an action to recover money loaned, plaintiff put in evidence an envelope on which was indorsed the date of the loan, defendant's name and address, the terms of the loan and a list of the collaterals. The indorsement contained no promise to pay. Held, That the indorsement did not state sufficient to constitute a complete contract and that the evidence tending to show that defendant's name was written on the envelope after the loan was made on collaterals belonging to other parties was ad

missible.

The existence of a custom cannot overrule the terms of a contract ambiguous on its face and the explanation by parol evidence showing what the parties really in

tended.

Affirming S. C., 15 W. Dig., 108.

This action was brought to recover $75,000 alleged by plaintiff

The defendant was allowed to prove by parol that his name was written on the envelope after the loan had been made upon collaterals belonging to other parties over whose affairs defendant had some control; that plaintiff's secretary had asked to whose order the check should be drawn.

Wheeler H. Peckham, for applt. Robert F. Little and Ashbel Green, for respt.

Held, That the indorsement on the back of the envelope did not of itself contain all the necessary language required to make a complete contract, and as no declaration to the effect that he was the borrower, was signed by him, the writing by him of his name and address on the envelope cannot be considered as an acknowledgment of an indebtedness, or that he was the borrower.

While instruments which are somewhat informal and which do not contain all the phraseology

Opinion by Miller, J. All concur, except Rapallo, J., absent.

necessary to constitute a perfect | firming judgment for defendant, contract are sometimes upheld as affirmed. such, it is necessary that the language employed should contain indications from which may be fairly inferred what was the actual intention of the parties as to the

contract.

Also held, That it was proper to receive the parol evidence given by defendant. 81 N. Y., 454; 60 id., 397; 65 id., 13; 75 id., 580; 92 id., 535; 9 id.. 531; 55 id., 228; 58 id., 203; 61 id., 635.

Even though a contract is made out, if any ambiguity arises in reference to any portion of it, the question presented is one for the consideration of the law upon such testimony, either in writing or oral, as the parties are able to present. 81 N. Y., 460; 47 id., 223; 55 id., 133.

Plaintiff proved that it was its custom and habit not to take notes, but envelopes like the one in question for the purpose of avoiding the use of revenue stamps and that the use of such envelopes was common at the time.

Held, That this evidence cannot affect the character of the indorsement upon the envelope. Its interpretation must be determined from the language employed and the circumstances connected with its use as proved upon the trial and cannot be altered by proof of the custom. The existence of a custom cannot overrule the terms of a contract ambiguous on its face and the explanation by parol evidence showing what the parties really intended.

Judgment of General Term, af

MURDER. JUROR. EVI-
DENCE.

N. Y. SUPREME COURT. GENERAL
TERM. FIFTH DEPT.

The people, respt., v. Franz Joseph Petmecky, applt.

Decided Oct., 1884.

A juror being questioned as to his fitness to

try the case, said that he had formed an opinion, but that he thought his opinion would not influence his verdict. The court then said: "You reflected, I suppose, that you do not find a verdict in a criminal case upon the balance of the evidence, but that the evidence must be such as to remove every reasonable doubt of guilt?" Held, That there was nothing improper in the judge's remark, and the juror not having finally sat on the trial the question whether there was error in his examination is not brought up by appeal.

A defendant's wife is a competent witness against him in a murder trial. Evidence of defendant's proposal to a fellowprisoner of a plan to overcome the sheriff and escape is competent.

Letters from defendant to his wife are competent evidence against him.

It is not error for the trial judge in his charge to define the degrees of murder in the inverse order of their enumeration in the statute, referring finally to the first degree of the crime, and then discussing evidence tending to show that defendant was guilty of murder in the first degree.

It is not error to charge that if the jury should find that defendant had knowingly testified falsely in respect to a material fact, then his testimony is entitled to credit only so far as the jury shall find it to be consistent with the established facts, or corroborated by the testimony of others.

It is not error to charge: "If the prisoner at the bar is to be found guilty of murder in

the second degree or of any less offence, it is because you find that there is a reasonable

doubt that he committed this act from a deliberate and premeditated design, and also that there is a reasonable doubt that he committed it while engaged in the commission of the crime of grand larceny in the second degree."

Appeal from judgment of Court of Oyer and Terminer upon conviction of murder in the first degree.

Defendant was admittedly the author of the homicide. He claimed that he acted in self-defence. John W.O' Brien and Lewis New

gass, for applt.

while engaged in the felonious taking, was murder in the first degree, Penal Code, § 183, and in both of these aspects the case was submitted to the jury.

One Treat was called as a juror and challenged by defendant for principal cause. The juror having answered defendant's counsel, that he had read and talked about the case and formed an opinion respecting it which would require evidence to remove, also said he thought he could try the cause unbiased by that opinion. He was then asked: "If the evidence was

Robert L. Drummond, Dist. pretty nearly balanced, would Atty., for respts.

Held, As we may order a new trial if we are satisfied that the verdict is against the evidence or against law, or that justice requires a new trial, Code Cr. Proc., § 527, as amended, Laws of 1882, Ch. 360, p. 499, we have examined the testimony carefully and somewhat minutely. The credit of the defendant as a witness was seriously impaired by his self-contradictions, and if the jury disbelieved his version of what occurred, so far as it was uncorroborated, as they properly might, the evidence fully warranted their verdict. Giving defendant the benefit of every reasonable doubt, the jury were authorized to find either that the deliberate and premeditated purpose of defendant was to take the life of his victim, or that it was to plunder the house where the homicide occurred, in which latter case, as the value of the property taken by him was shown to exceed $25, the homicide, if committed by him

your opinion influence your verdict?" He answered: "I don't think it would." The court then said: "You reflected, I suppose, that you do not find a verdict in a criminal case upon the balance of the evidence, but that the evidence must be such as to remove every reasonable doubt of guilt." The juror answered: "Yes." No exception was taken to the judge's remark, and the juror did not sit, he having been challenged peremptorily by defendant. It does not appear that defendant's peremptory challenges were exhausted.

Held, That there was nothing in the remark improper or that could prejudice defendant. Besides, the juror not having been of the panel, the question whether there was error in his examination is not brought up by this appeal. Code of Cr. Proc., §§ 517, 485, Subd. 3; id., § 455.

Also held, That defendant's wife was not compelled to disclose any confidential communication pass

ing between her and her husband during their marriage, and within that limitation she was a competent witness against him. Penal Penal Code, 715. The case of People v. Hovey, 29 Hun, 382, cited for appellant, arose before the Penal Code took effect.

Also held, That evidence of defendant's proposal to his fellowprisoner of a plan of escape from jail was competent. The fact that the plan involved the commission of a criminal offence other than that for which defendant' was in dicted did not render the evidence any less competent.

Also held, That letters written by defendant to his wife were competent evidence against him. They were not within the prohibition of § 715 of the Penal Code. See 1 Greenl. Ev., § 254, a. At any rate, there was no error in permitting defendant to be examined as to the dates and signatures alone, which was all that was done here.

The judge, in his charge, defined the degrees of murder in the inverse order of their enumeration in the Statute, referred finally to the first degree of the crime, and then discussed the evidence tending to show that the killing was done while defendant was engaged in committing a felony.

of the charge relating to the credit to be given to defendant's testimony. 5 Cow., 243; 40 N. Y., 1 ; 74 id., 501.

The charge gave defendant the benefit of any reasonable doubt as to the grade of the crime arising upon the entire evidence. The judge had previously charged that in order to find defendant guilty of murder in the first degree they must "be satisfied beyond a reasonable doubt that he committed the act of taking this life with a deliberate and premeditated design, or that he committed it while engaged in the act or the attempt of committing the felony of taking this property from the house." The case of Stokes, 53 N. Y., 164, cited for appellant, does not sustain his possition.

Judgment and conviction affirmed, and the Court of Oyer and Terminer directed to fix another day for execution of the sentence.

Opinion by Smith, P. J.; Haight and Bradley, JJ., concur. Barker, J., dissents, he being of the opinion that the exception to the part of the charge as to the credit to be given to defendant's testimony was well taken.

INFANTS.

TERM. FIFTH DEPT. Willoughby Derr, applt., v. Alonzo B. Cooley et al., respts.

Held, That the mere order of N. Y. SUPREME COURT. GENERAL arrangement was a matter wholly within the judge's discretion and is not subject to review, nor are we to presume that the jury drew an improper inference therefrom and allowed it to influence their verdict.

There was no error in the part

Decided Oct., 1884.

A mother, in contemplation of death, consigned her child to Mrs. D., with the assent of the latter's husband, to be brought up

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