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missioners again viewed the prem

Evidence that a witness has been convicted ises without the presence, knowl

of being drunk and disorderly is admissible

as affecting his credibility. edge or consent of either party or the respective counsel. This is Appeal from judgment entered claimed to have been irregular. on

conviction of defendant of Held, Untenable. The situation burglary in the third degree. and condition of the lands to be Defendant was found by an taken and their relation to other police officer in a grist mill about property are facts of the highest 6 o'clock in the morning. In the importance in making an estimate office of the mill were a safe and a of damages. These facts may be money drawer which some proved to a certain extent by wit had attempted to open by violence. nesses, but it is both the privilege Defendant admits entering the and the duty of the commissioners mill, but claims to be unable to to learn thein from actual observa- explain when or how or for what tion. The view of the premises purpose, by reason of intoxication is in the nature of evidence to be on that occasion.

on that occasion. He was arrested considered by them in making a about an hour afterwards at his decision. When they meet for mother's house. consultation, therefore, and con- The officer who made the arrest sider all the evidence in the case testified that he was met by dethey have the same right to again fendant's mother at the outside view the premises that they have door of the hall, who upon into consult their minutes or read an quiry said that defendant was exhibit.

within ; that she went back into Orders affirmed, with costs. the kitchen, apparently to call her

Opinion by Vann, J.; Hardin, son, and on returning said, “He P. J., concurs.

has gone out of the back door," that upon receiving the answer

witness started to enter the kitchEVIDENCE.

en, the mother trying to stop him, N. Y. SUPREME COURT. GENERAL and on reaching the kitchen found TERM. FOURTH DEPT.

defendant concealed behind a door

about six feet from where the con. The People, respts., v. Jo n versation occurred. The remark Burns, applt.

above quoted was objected to on Decided Oct., 1884.

the ground that the declaration

was not made in defendant's presOn the trial of an indictment for burglary the

ence and was incompetent. Obofficer who made the arrest testified that he met defendant's mother in the hall and that jection overruled. she told him defendant was in; that she

Hannibal Smith, for applt. left and returned saying defendant had E. C. Emerson, for respts. gone out of the back door and attempted to

Held, No error. The evidence prevent witness from entering the room where he found defendant concealed. Held,

was admissible, because, 1, The That the evidence was admissible.

facts justified the inference that

the answer was made by defend. | and that it was the design and ant's direction. At first the effect of these sections to estabmother told the officer the truth, lish a uniform rule and permit but after returning from the room the conviction for any crime to be where the son was found toldja proved, and whether it should falsehood in defendant's interest affect the credibility of the witness and with the evident intent of is a question for the jury. See enabling defendant to escape ; 2, 94 N.Y., 137. In the opinion of the facts justified the inference this court three convictions for that defendant, who was concealed drunkenness and disorderly conbehind an open door but six feet duct tend to affect the credibility from the mother, was within hear- and moral character of the witing, and unless he wished to be ness; but the extent to which it bound by her , remarks should should affect it is dependent upon have spoken ; 3, the falsehood of the circumstances of the offence. the mother, told under the circum- In some cases the conviction of a stances described, and her at particular misdemeanor might not tempt to prevent the officer from and should not impair the credientering the room where defend- bility of a witness, while a convicant was concealed, justified the tion of the same statutory misdeinference that they were acting meanor under other circumstances with a common purpose and de- should and would affect his credi. sign to enable defendant to escape, bility. and the acts and declarations of An employee of the mill, who the mother were, for this reason, carried the key to a particular adinissible against defendant. 55 outside door and whose duty it N. Y., 565.

was to close and lock it each eveOne of defendant's witnesses ning, testified that he did not retestified on cross-examination that member doing so on the evening he had been three times convicted before the burglary, but that it for being drunk and disorderly. was his custom to do so every Defendant objected to this evi- night. This evidence as to the dence on the ground that it was custom of witness was objected to immaterial, and now insists that generally. One M. swore that he unless the conviction is for an in- observed this door to be locked on famous offence or for one directly that night, and one G. testified affecting moral character, proof of that his attention was called to the conviction is incompetent for the fact that M. examined the the purpose of affecting credibil. doors. Defendant did not testify ity.

that he entered through an open Held, That the evidence was door and no evidence was given or immaterial to the issue, but was offered to show that such might admissible as affecting the credi- have been the fact. bility of the witness, Code Civ. Held, That defendant was not Pro. § 832 ; Penal Code, $ 714 ; ' injured by the testimony objected

to. See 58 N. Y., 555. Erroneous the judge charged that if the suit was a good

fair fit, or if it was accepted by defendant, rulings on a trial by jury in civil

or if he soiled it so that he could not return or criminal cases should be disre

it in good condition, plaintiffs were entitled garded on appeal if it clearly ap to recover and the jury found for the pears that appellant was not injur plaintiffs. Held, That such judgment was ed thereby. 2 N.Y., 193; 46 Barb.,

a bar to a subsequent action for damages

for breach of the contract. 625 ; 44 id., 636. See also Code Crim. Pro. $ 542.

Appeal from judgment of County The court recited to the jury the Court, affirming a judgment of evidence bearing on the question non-suit rendered in justice's of defendant's intoxication, and court. charged them that they must be

The complaint alleged that desatisfied beyond a reasonable fendants agreed to furnish matedoubt that defendant intended to rials and in workmanlike manner commit a crime, and also that they make for plaintiff a suit of clothes might take into consideration the that would fit, and he agreed to intoxication of defendant in deter

pay therefor the sum of $30; that mining the intent with which he they made the suit and it did not entered.

fit, but on their requiring him to Held, No error, and that it was

pay for it he did so under protest unnecessary to repeat the instruc- and that by reason of the premises tion and employ the language of he had sustained damages in the counsel.

sum of $15. Also held, That no error The answer consisted of a gencommitted in refusing to instruct eral denial and plea of former the jury as to the rules applicable suit in bar. to cases resting on circumstantial

After plaintiff had given testievidence. This was not such a

mony in support of his allegations, case.

defendants proved that they had Judgment affir med, stay vacated, heretofore recovered judgment and the sheriff directed to carry against plaintiff for the contract the judgment into effect.

price of the clothes in question ; Opinion by Follett, J.; Hardin, that plaintiff appeared and anP. J., and Merwin, J. concur. swered in that action and among

other things pleaded as a counterBAR. CONTRACT.

claim the same cause of action N.Y. SUPREME Court. GENERAL and gave evidence tending to es

alleged in the complaint herein TERM. FOURTH DEPT.

tablish it.

The justice in the forWilliam H. Clark, applt., v. mer action charged the jury that Elias T. Fox et al., respts.

if the suit of clothes was a good, Decided Oct., 1884.

fair fit, or if it was accepted by

the defendant therein, or if he had In an action for the contract price for a suit of clothes, where the defence was that they

soiled it so that he could not redid not fit as it was agreed that they should, turn it in good condition, the


plaintiffs therein were entitled to An acceptance under an execurecover the contract price. The tory contract is ordinarily an adjury found for the plaintiffs mission that the quality is satisin that action, and the present factory and conforms to the conplaintiff subsequently paid the tract. 53 N.Y., 515. But assuming judgment entered thereon.

that there was an express warranty It is now claimed that that ad that the clothes shonld fit and that judication is not a bar, because it appellant had a cause of action does not appear upon which one against the respondents for a of the three grounds mentioned the breach thereof, notwithstanding jury based their decision, and that the fact that he had accepted them, unless it was based on the first and it does not lead to a reversal ground the issue as to the alleged of the judgment. In the first action misfit was not determined.

he pleaded as a counterclaim that Geo. M, Weaver, for applt. cause of action ; he gave evidence

E. Nusbaum and L. E. Goodier, tending to establish it and had an for respts.

opportunity to exhaust the issue. Held, Untenable. The decision The counterclaim was not withof the first action rested upon but drawn, but was a part of the issue one ground, namely, that the con that was decided.

that was decided. It is presumed tract had been performed, or what to have been passed upon. If any is equivalent thereto, that it had error was committed by the court been performed in part and that in its charge or by the jury in their performance of the rest had been decision the only remedy of dewaived. There was either a fit or fendant was to appeal. He had a misfit. If there was a fit the his day in court and as long as the contract had been performed. If judgment stands it is conclusive there was a misfit the defendant upon him. See 85 N. Y., 427; 94 in the first suit waived the defect, id., 423; 46 id., 490; 12 id., 184. either by accepting the clothes as Also held, That the offer of apthey were, or by soiling them so pellant to show by members of the that they could not be returned, jury in the first action the grounds which is simply evidence of ac of their verdict was properly exceptance. If he accepted the cluded. clothes as they were he thereby Judgment affirmed, with costs. waived his right to object that Opinion by Vann, J.: Hardin, they did not fit.

If by his own

P. J., and Follett, J., concur. act he soiled them and thus put it out of his power to return them in ADMIRALTY. JURISDICTION. as good condition as when delivered he thereby waived his right N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT. to object that they did not fit. In either event he waived so much of

Thomas M. Ryan, applt., v. the contract as had not been per- John Hook, respt. formed.

Decided Oct., 1884.


The U. S. District Courts have jurisdiction district courts extends, not only of a libel for towage against a canal boat

to waters, where the tide ebbs and without masts or steam power, and such jurisdiction is not taken away by U. S. R. flows, but also to all navigable S, $ 4251.

waters of the United States, even A sale of the boat in such proceedings will including a river lying wholly cut off a prior chattel mortgage.

within the boundaries of a State, Appeal from judgment in favor when by its connection with other of defendant rendered on a trial waters it forms a continuous highby the court without a jury. way over which commerce may be Action, of replevin to

carried on with other states or possession of a canal boat known foreign countries.

foreign countries. 109 U. S., 629; as the “Wm. Roberts." Plaintiff 11 Wall., 411 ; 20 id., 430; 10 id., claimed title to said boat by vir- 557; 8 id., 15; 7 id., 624; 12 tue of a sale in September, 1878, How., U. S., 444 ; 20 id., 296 ; 22 pursuant to a decree in admiralty id., 48. While the jurisdiction of of the United States District Court the district courts over the waters for the Eastern District of New traversed by the "Wm. Roberts” York. The decree was rendered cannot well be disputed, a question on a libel filed by the Eastern is raised as to the jurisdiction of Transportation Line against said these courts over a canal boat. boat for towing her from Hoboken The more recent cases hold and to Albany. Plaintiff took posses- the weight of authority seems to sion under his bill of sale and held be, that where the services were it until October 5, 1878, when de maritime in nature and were perfendant took possession under a formed for the benefit of a canal chattel mortgage given for the boat without means of propulsion purchase money in 1875. The mort on board, but while it was engaged gage was duly foreclosed and de- in navigating by means of towage fendant has acquired the rights of the navigable waters of the United the purchaser on foreclosure. The States, the admiralty court has court found that said canal boat jurisdiction. See 8 Ben., 150 ; 15 was a quarter deck scow and was Blatchf., 183; 5 Ben., 60 ; id., 72; without masts or steam power, and 5 Otto, 68; 1 Brown's Admr., 72; found as matter of law that the id., 334 ; Olcott, 71 ; 2 Fed. Rep., sale under the order in admiralty 86 ; id., 411. did not cut off the mortgage and The trial court held that $ 4251, ordered the complaint dismissed. U. S. R. S., deprived the admiralty

Clinton C. Clark, for applt. court of jurisdiction.
Willard Rinkle, for respt.

Held, Error. That section is in Held, Error. The main question these words: "No canal boat presented is whether the admiralty without masts or steam power, court had jurisdiction to seize and which is required to be registered, sell the canal boat. It seems now licensed, or enrolled and licensed, to be settled that the admiralty shall be subject to be libelled in and maritime jurisdiction of the any of the United States courts

Vol. 20.-No. 9a.

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