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In capital as well as other cases it must be held that a person intends that which is the natural and necessary consequence of an act done by him, and unless the act was done under circumstances which preclude the existence of such an intent the jury may find from the result produced an intention to effect it. Starkie on Evi., 848; 1 Phillips on Evi., 632; 50 N. Y., 609.

The proof tended to show that defendant, knowing the location of the deceased, drew a pistol from his pocket with some difficulty, as it caught in the lining, and turned towards the deceased, and in spite of the remonstrance of one of the bystanders discharged it, the ball making a mortal wound.

Held, That it was competent for the jury to find, from the circumstances, that defendant had a purpose, formed after more or less deliberation, to kill the deceased. To infer the existence of deliberation and premeditation does not require the lapse of any special period of time. If a person is undisturbed by sudden and uncontrollable emotions, excited by an unexpected and observable cause, and is in the possession of his usual faculties, it will be presumed that his actions are prompted by reason and the result of causes operating upon his mind and deemed sufficient by him to inspire his action. When the inferences to be drawn from the testimony on a criminal trial are not clear and incontrovertible, and men of ordinary judgment and discretion might differ as to its significance,

it is the exclusive province of the jury to pass upon the questions involved. 60 N. Y., 331; 56 id., 308. The resort to falsehood and evasion by one accused of a crime affords of itself a presumption of evil intentions, and presents proper evidence for the consideration of the jury upon the question of the guilt or innocence of the accused. Deady, 524; 62 Me., 129; 14 Gray, 55.

It has never been required that the particular intent with which a homicide was committed should be set forth in the indictment, but it has uniformly been deemed sufficient to allege it to have been done feloniously, with malice aforethought and contrary to the form of the statute. 13 Wend, 159; 39 id., 245; 37 id., 413. The question as to whether the crime was committed under such circumstances with reference to intent as to make it murder in the first degree within the statutory definition is one of evidence determinable by the jury. 13 Wend., 159; 37 N. Y., 413.

It was not intended by section 273 of the Code of Criminal Procedure, abolishing existing forms of pleadings in criminal actions, to obliterate forms of expression, or the judicial construction theretofore given to the language employed in such pleading Its true office was to abrogate the technical rules formerly governing the construction of criminal pleadings and to substitute therefor the simplicity and ity and liberality of interpretation presented by the new system of criminal procedure.

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Judgment of General Term, reversing judgment of conviction and granting new trial, affirmed. Opinion by Ruger, Ch. J.

The objection that an indictment | he could not afford to put up a does not conform to the require- brick building under the terms of ments of Sections 275 and 276 of the old lease, to which appellant the Code of Criminal Procedure replied that he did not expect him can only be taken by demurrer. to do so, and expected to pay Code Crim. Pro., §321. more, and asked how much more it would be; that respondent was unable then to tell him, but afterwards, in November, 1880, told All him it would be $50 a month; that appellant thought that was pretty high, and that it was then agreed that appellant should put in the store fixtures at a certain cost to respondent, to be applied on the rent, and they were so put in. Appellant afterwards refused to pay the increased rent, and this action. was brought.

concur.

LANDLORD AND TENANT.
N. Y. SUPREME COURT. GENERAL
TERM. FIFTH DEPT.

John B. Smith, respt., v. Abram
T. Kerr, applt.

Decided Oct., 1884.

If leased premises are by fire rendered unfit
for occupancy the tenant may surrender
possession and refuse to pay rent.
A parol agreement is ineffectual to change
the amount of rent under a sealed lease for

more than one year.

Appeal from County Court judgment, affirming justice's determination and order in summary proceeding to recover possession of real property.

On February 20, 1880, Smith demised to Kerr, by a lease under seal, executed by both parties, the premises in question for a term ending October 5, 1883, at the annual rental of $300, payable $25 a month. The building occupied under the lease was destroyed by fire September 5, 1880, and Kerr erected a temporary structure and continued there. Smith at once re-built, and Kerr went into the new building in December, 1880. Respondent's evidence tended to prove that he told appellant that

Ansley & Davie, for applt. Johnson & Markham, for respt. Held, That defendant was not bound to pay rent after the fire, but might then quit and surrender the premises. Laws of 1860, Ch. 345, changing the common law rule; 3 Johns., 44; 26 N. Y., 498. The surrender is to be established by the election and action of the tenant. 67 Barb., 66; 55 N. Y., 280. Such surrender is not proved here.

The lease could not be substantially modified by parol. 21 Wend., 628; 7 Rob., 544; 36 How. Pr., 275; 3 Rob., 7, 16; 9 J. & S., 236; 30 N. Y., 306–7; 72 id., 148. The agreement being, as we must infer, for more than one year, is void and cannot effect a surrender of the terms of the old lease, 2 R. S., 134, §6; id., 135, §8; and creates no rights or obligations between the parties to it. 52 N. Y., 494; 72 id., 147. See 25 Hun,

116; 7 Cow., 48; 13 Wend., 71, 75; | April 4, 1879, an exchange was 21 id., 631-2. made, Cleghorn's note was delivered to him, and Mann's note of $70 was taken by defendant, and for the difference defendant gave Cleghorn the instrument in suit, which was indorsed then and before execution of it was made. It was transferred to plaintiff, who brought this action and recovered. The $70 Mann note had not been paid.

E. M. & F. M. Ashley, for applt.

L. P. Gordon, for respt. Held, That the indorsement was as much a part of the contract as if it had been inserted in the body of it on the face of the paper. The promise to pay in nine months, or at any time, depended upon the condition precedent, i. e., payment of the Mann note. 10 Pick., 228; 20 Am. Dec., 518; 4 Metc., 230; 38 Am. Dec., 362; 127 Mass., 293-4; 49 N. Y., 396; 10 Am., 382; 57 N. Y., 573, 579.

County Court judgment and justice's determination and order reversed.

Opinion by Bradley, J.; Smith, P. J., and Barker, J., concur; Haight, J., not sitting.

AGREEMENT.

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

Wm. T. Stout, applt., v. James Liddell, respt.

Decided Oct., 1884.

A writing in the form of a promissory note was indorsed "The within to be paid when M. pays a note of $79 to L. or bearer, dated December 19, 1878." Held, That the

instrument was not a promissory note, but a mere agreement to pay the sum named on its face at the time and in the event mentioned in the indorsement.

Appeal from County Court judgment, reversing justice's judg

ment.

The evidence given to show the reason and purpose of the indorsement could not change the import of the language, which is not ambiguous.

Action on an instrument consisting of a paper on the face of which is a promissory note dated April 4, 1879, made by defendant, for $17.94, payable to J. W. Cleghorn or bearer, nine months after its date, with interest, and on the back of which was indorsed, "The within to be paid when O. E. Mann pays a note of $70 to James Liddell or bearer, dated December 19th, 1878." Prior to April 4, 1879, defendant held a note for $50, made by Cleghorn and in

CONTRACT.

LIEN.

N. Y. COURT OF APPEALS.

The Mechanics' & Traders' Na

dorsed by Mann, and Cleghorn tional Bank v. The Mayor, &c.,

of N. Y. et al.

held a note made by Mann for $70, dated December 19, 1878. On

Decided Nov. 25, 1884.

Judgment affirmed.

Opinion by Bradley, J.; Smith, P. J., Barker and Corlett, JJ., con

cur.

Under a contract between the city and a contractor, which provides that the latter shall furnish satisfactory proof that all persons who have done work or furnished materials, and have given notice to the Com

or

missioner of Public Works before within ten days after completion of the work that a balance is due them, have been fully paid or secured, and in the absence of such proof that a sufficient sum shall be retained to pay such claims, the notices of lien may be given before the completion of the contract, and no other proof is necessary to accompany them except as to the amount due the claimants.

Upon such a contract the city holds the money only as trustee and is not liable to pay interest until after judgment is rendered against it. Modifying S. C., 15 W. Dig., 263.

This is an action brought by plaintiff, as assignee of a contract, to recover a balance claimed to be due thereon. It appeared that on August 19, 1875, the city of New York through the Commissioner of Public Works, entered into a contract with G., plaintiff's assignor; that said contract was for improving a portion of Eleventh avenue, in said city, and provided that G. should furnish to the Commissioner of Public Works satisfac tory evidence that all persons that had done work or furnished materials under the contract, and who had given written notice to said commissioner, before or within ten days after the completion of the work, that any balance for such work or materials remains due and unpaid, have been fully paid or secured such balance, and in case such evidence is not furnished such amount as may be necessary to meet said claims shall be retained from any moneys due G. until said claims shall be

fully discharged or such notice withdrawn. G. entered upon the performance of the contract, and fully completed it January 7, 1878. On October 18, 1876, G. assigned to plaintiff all moneys due and to grow due under his contract. Both before and after that date, but prior to the completion of the contract, various persons who at G's request had done work and furnished materials gave written notice, as required, which were accompanied by the proof of the sums due and were presented to the commissioner. This action was commenced in April, 1878. The notices filed had not then been withdrawn, and there was unpaid under the contract about $12,000, which was less than the aggregate claim of the parties who had filed the notices. All such parties were made defendants with the city, under allegation that they claimed some len upon or interest in such balance. The provision of the contract as to notice to be given by those having liens was in accordance with an ordinance of the city, which provided for a notice to be given "at any time within ten days" after the completion of the work. The complaint was dismissed, and the money in the hands of the city was directed to be distributed among the other defendants. John H. Strahan, for plff. D. J. Dean, for city, deft. L. Laflin Kellogg and James Ridgway, for other defts.

Held, No error; that the notices of liens could be given, as they were here, before the completion

of the contract, and no other proof was necessary to accompany them except as to the amounts due the claimants.

The judgment directed that the city should pay interest on the sum found due in July 2, 1878.

Held, Error; that the city held the money simply as trustee, and was only liable to pay interest after the entering of judgment.

Judgment of General Term, affirming judgment of Special Term, modified as to interest, and as modified affirmed.

Opinion by Earl, J. All concur.

NEGLIGENCE. PRACTICE.

Action to recover damages for the death of plaintiff's intestate, his wife, alleged to have been caused by defendant's negligence. Deceased was riding, by invitation, with one M. and two other ladies from S. to G. M. was driving and deceased was sitting upon the front seat with him. The track crosses the street in G. at an angle. The team approached the crossing at a walk, and M., who was familiar with the crossing, looked in both directions and listened attentively, but heard and saw noth

Decided Oct., 1884.

Where it appears that the whistle was not

blown until the train was very near the crossing, and the evidence is conflicting as

to whether the bell was rung, the questioning; while he was looking in the
of defendant's negligence is one for the
jury.

Deceased was riding by invitation with
friends, and the driver, on approaching the
crossing, looked both ways and saw no train,
and while looking in the opposite direction
heard the whistle blow and the train was
upon them. The view of the track was
obstructed from the road for some distance
and from a point 30 feet from the
it was only visible for about 300 feet. The

opposite direction he heard the
whistle and the train was on them.
The three ladies were killed. It
was not shown what deceased was
doing at or just before the acci-
dent. There was evidence that
the train was coming from S. at
the rate of fifty miles an hour;
that between the highway and
track there were trees and build-
ings that obstructed the vision
from a point in the highway
about 300 feet from the crossing
to within 30 feet of it; that at the

It

train was traveling 50 miles an hour.
did not appear what deceased was doing.
Held, That the question of contributory
negligence was for the jury.

Under a stipulation allowing either party to

read the testimony of any and all witnesses Vol. 20.-No. 11a.

EVIDENCE.

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

given on the trial of an action brought by another person in reference to the same action, either party reserving the right to recall any of said witnesses and to call others, no objections can be taken to the testimony so read that were not taken on the trial of the other action, and a party reading the direct-examination of a witness may also read the cross-examination where his adversary omits to do so. Evidence that there was no gate across the highway is admissible as descriptive of the situation.

Lewis A. Burgess, admr., respt., v. The N. Y. C. & H. R. RR. Co., applt.

Appeal from judgment for plaintiff entered upon verdict and from order denying motion for a new trial upon the minutes.

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