Clarence Frank Birdseye New York (State).

Annotated consolidated laws of the State of New York as amended to January 1 ... online

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whom he bet It was held, that this memorandum was not made on his behalf
and that making a bet or wager unaccompanied with record or registry was not
at the time of this transaction a violation of the provisions of section 986 of the
Penal Law. People v. Lambrix (1912), 204 N. Y. 261, revg. 143 App. Div. 956.

§ 994. Property staked may be recovered.

Application of this section is limited to acts of gambling, commonly known as
bets or wagers contingent upon the happening of an event, such as racing or elec-
tions, while section 995 has to do with games of chance, such as card or dice
playing. The three months' limitation contained in the latter section is applicable
only to the recovery of money wagered on games. Wilkenfeld v. Attic Club (1911),
74 Misc. 543.

§ 996. Losers of certain sums may recover them.

Complaint, in an action to recover money lost at play, that falls to allege that the
plaintift at any time or sitting lost the sum or value of twenty-five dollars or
upwards, does not state facts sufficient to constitute a cause of action. Wilkenfeld
V. Attic Club (1911), 74 Misc. 543.

It it a good defense, in an action to recover money loet at play, that the cause
of action did not accrue within three calendar months before the action was
commenced. Wilkenfeld v. AtUc Club (1911), 74 Misc. 543.

§ 1044. Murder in first degree defined.

Premeditation and deliberation, sufficient evidence of. People v. Falletto (1911),
202 N. Y. 494.

Murder while committing felony. — ^Evidence held sufficient to sustain conviction
for murder in the first degree while committing the crimes of burglary and rape.
People V. Schermerhom (1911), 203 N. Y. 57; People v. Falletto (1911), 202 N.
Y. 494.

An indictment in the common-law form is sufficient to sustain a conviction for
murder in the first degree, even though there is no evidence of premeditation and
deliberation, where the evidence clearly shows that the crime was committed while
engaged in the commission of a felony. People v. Schermerhom (1911), 203 N.
Y. 57.

Under the common-law form of indictment the court properly submitted the case
to the Jury upon the theory that they could convict the defendant of murder in
the first degree in the absence of any premeditation or deliberation on his part
provided they found that he killed the deceased while engaged in the commission
of a felony. People v. Wolter (1911), 203 N. Y. 484.

While engaged in attempt to commit felony. — On examination of the evidence on



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PENAL LAW. 393



L. 1912, ch. 340. Murder; larceny. || 1046, 1052, 1293-b.

appeal from a judgment on a verdict convicting defendant of murder in the first
degree, held, that there was sufficient evidence to sustain a finding that defendant
personally shot and killed the person for whose murder he was on trial with a
deliberate and premeditated design to eifect death; that it also suffices to uphold
the conviction even if the killing was unintentional, on the ground that the homi-
cide was conmiitted by persons engaged in a common attempt to commit a felony.
If the natural and probable consequence of a conspiracy to obtain money feloniously
and by force is the killing of a person in case of resistance on his part, a defend-
ant who is a party to the conspiracy is liable for murder in the first degree, although
he did not do the actual killing, and a request which assumes that if a defendant
did not fire the fatal shot he could escape liability unless the conspiracy expressly
contemplated the use of such force or violence as might cause death, is properly
refused. People v. Frtedman (1912), 205 N. Y. 161.

§ 1046. Murder in second degree defined.

The conviction of murder in the teoond degree doet not operate at an acquittal of
murder in the first degree and the accused can be put upon trial for the higher grade
of homicide when the original judgment is reversed or the verdict otherwise set
aside at his instance. People v. McOrath (1911), 202 N. Y. 445.

§ 1062. Uanslaugliter in second degree defined.

Negligence in use of ezplosivet. — ^A Jury may find a defendant guilty of man-
slaughter in the second degree, where it appears that, being a licensed blaster
and prosecuting his trade within the limits of a city and in a place where persons
were liable to suffer damage or death by reason of his negligence, he used double
the amount of explosives which carefhl use would require, so that the explosion
threw rocks so as to kill a person standing on the public thoroughfare over 125 feet
from the place of the explosion. Such gross negligence under the circumstances
justified a conviction for manslaughter although there was no malice or evil design.
People V. Clemente (1911), 146 App. Div. 109, 130 N. Y. Supp. 612.

§ 1221. Intoxication in a pnblic place.

Courts of special teitiont have exclusive jurisdiction in the first instances to deter-
mine a charge of intoxication in violation of this section. People v. Quimby (1911),
72 Misc. 421, 131 N. Y. Supp. 349.

§ 1276. Violations of provisions of Labor Law. — Subdivision 7-a, added
by L. 1912, ch. 383, in effect Apr, 16, 1912, as follows:

7-SL. The provisions of article ten-a of the labor law relating to the
bureau of industries and immigration;

§ 1290. Larceny defined.

Proof of the oommitsion of the crime of obtaining money by false pretenses, which
constitutes statutory larceny, will not authorize a conviction under an indictment
also charging common-law larceny. People v. Cohen (1911), 148 App. Div. 206.

See generally Danzer v. Nathan (1911), 145 App. Div. 448, 452, 129 N. Y. Supp.
966.

§ 1293-b. Obtaining property or credit by nse of false statement. — ^Any
person

1. Who shall knowingly make or cause to be made, either directly or
indirectly, or through any agency whatsoever, any false statement in writ-



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394 PENAL LAW.



I $ 1296, 1306, 1308. Grand larceny. L. 1912, ch. 164.

ing, with intent that it ahall be relied upon, respecting the financial con-
dition, or means or ability to pay, of himself, or any other person, firm
or corporation, in whom he is interested, or for whom he is acting, for the
purpose of procuring in any form whatsoever, either the delivery of per-
sonal property, the payment of cash, the making of a loan or credit, the
extension of a credit, the discount of an account receivable, or the making,
acceptance, discount, sale or indorsement of a bill of exchange, or promissory
note, for the benefit of either himself or of such person, firm or corpora-
tion; or

2. Who, knowing that a false statement in writing has been made, re-
specting the financial condition or means or ability to pay, of himself,
or such person, firm or corporation in which he is interested, or for whom
he is acting, procures, upon the faith thereof, for the benefit either of
himself, or of such person, firm or corporation, either or any of the things
of benefit mentioned in subdivision one of this section; or

3. Who, knowing that a statement in writing has been made, respect-
ing the financial condition or means or ability to pay of himself or such
person, firm or corporation, in which he is interested, or for whom he is
acting, represents on a later day, either orally or in writing, that such state-
ment theretofore made, if then again made on said day, would be then
true, when in fact, said statement if then made would be false, and pro-
cures upon the faith thereof, for the benefit either of himself or of such
person, firm or corporation, either or any of the things of benefit men-
tioned in subdivision one of this section.

Shall be guilty of misdemeanor and punishable by imprisonment for not
more than one year or by a fine of not more than one thousand dollars, or
both fine and imprisonment. {Added hy L, 1912, ch. 340, in effect Sept,
1, 1912.)

§ 1296. Grand larceny in second degree. — ^A person is guilty of grand
larceny in the second degree who, imder circumstances not amounting
to grand larceny in the first degree, in any manner specified in this article,
steals or unlawfully obtains or appropriates :

1. Property of the value of more than fifty dollars, but not exceed-
ing five hundred dollars, in any manner whatever ; or,

2. Property of any value, by taking tbe same from the person of an-
other; or,

3. A record of a court or oflficer, or a writing, instrument or record
kept filed or deposited according to law, with, or in keeping of any, public
office or officer. {Amended by L. 1912, ch, 164, in effect Sept, 1, 1912.)

§ 1306. Claim of title a ground of defense.
See Danzer v. Nathan (1911), 145 App. Div. 453, 129 N. Y. Supp. 993.

§ 1308. Buying or receiving stolen or wrongfully acquired property.
Sentence of one oonvioted of receiving stolen goods.— One convicted of receiving



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PENAL LAW. 395



L. 1912. ch. 163. Libel; Injury to property. || 1340, 1344, 1348, 1433.

stolen goods may be sentenced, under the proYlsions of this section, either to a
state prison for not more than five years, or to a county jail for not more than
six months, but may not be sentenced to the penitentiary In the county of New York
for a year. People ex rel. Rodenberg ▼. Warden, etc. (1911), 76 Misc. 77.

§ 1340. Libel defined.

Criminal intent is a necessary element of the crime and the statute must be
construed strictly in favor of the accused. People ex rel. Canralho v. Warden
(1911), 144 App. Dlv. 24, 128 N. Y. Supp. 837.

§ 1344. Liability of editors and others.

Application.^The mere fact that individuals hold the offices of president, treas-
urer and secretary of a corporation publishing a libel is not sufficient to show their
responsibility therefor under this section; there is no presumption that such an
officer is manager of the corporation. People ex rel. Carvalho ▼. Warden (1911),
144 App. Dlv. 24, 128 N. Y. Supp. 837.

§ 1348. Bestriction on indictment for libel.

Application of Act of Oongreis of 1898. — ^Aa the law of New York results in the
unity as one criminal act of the publication of a libel and its circulation, and allows
but a single conviction for the combined act, and affords adequate means for pun-
ishing such circulation on a reservation of the United States within that state,
resort cannot be had to the United States court, under § 2 of the Act of Ck>ngre88
of July 7, 1898, to punish the act of such circulation on the basis that it is a sepa-
rate and distinct offense from the publication. The assimilative crimes act of
1898 cannot be used as a means of frustrating the laws of the state within which
the reservation is situated; had one accused of a crime consisting of several ele-
ments treated a unit by the state law, so that there can be but one trial and con-
viction thereunder, cannot be Indicted and tried in the United States court for a
separate element committed on such reservation, the other elements of the crime
being committed in other portions of the state. United States v. Press Publishing
Co., 219 U. S. 1 (1910).

§ 1433. Injury to property; how punished. — ^A person who unlawfully
and wilfully destroys or injures any real or personal property of an-
other, or who without authority or permission from a person who has
the right to give such authority or permission, loosens any brake or block-
ing of any car standing on any railroad track in this state, or without
like authority or permission, puts upon or runs any handcar, or other
car, on any railroad track in this state, or without like authority or per-
mission, interferes or meddles with any brake or coupling of any car while
standing or moving on any railroad track in this state, or takes any part
therein, in a case where the punishment is not specially prescribed by
statute, is punishable as follows:

1. If the value of the property destroyed, or the diminution in the
value of the property by the injury is more than fifty dollars, by imprison-
ment for not more than four years.

2. In any other case, by imprisonment for not more than six months,
or by a fine of not more than two hundred and fifty dollars, or by both
such fine and imprisonment.



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396 PENAL LAW.



fi§ 1630, 1620, 1692, 1897. Dangerous weapons. L. 1912, ch. 163.

3. And in addition to the punishment prescribed therefor, he is liable
in treble damages for the injury done, to be recovered in a civil action by
the owner of such property, or the public officer having charge thereof.
(Amended by L. 1912, ch. 163, in effect Sept, 1, 1912.)

§ 1530. Public nuisance defined.

The keeping of a door looked, bolted and fastened in a factory during working
hours is a violation of statutory law. If in that way the owners render a consid-
erable number of persons insecure in life, they maintain a public nuisance according
to the terms of this section. People v. Harris (1911), 74 Misc. 353, 362.

§ 1620. Perjury.

XateriaUty of testimony. — ^Wilfully and knowingly testifying to an immaterial
fact is not perjury. People v. Peck (1911), 146 App. Div. 266, 130 N. Y. Supp. 967.

An indictment for perjury need not charge that any or all of the sworn state-
ments of the defendant were material or were of and concerning a matter material
in a proceeding then being legally conducted, provided the facts set forth are
sufficient in themselves to show that the alleged false statements were material.
Such materiality, however, must be shown in the indictment itself, either by direct
statement or by the facts therein set forth. People v. Peck (1911), 146 App.
Div. 266, 130 N. Y. Supp. 967.

§ 1692. Rescue of a prisoner.

Application. — Sections 1692 and 1696 of the Penal Law, read together, provide a
complete scheme for the punishment of a person who rescues a prisoner held in
lawful custody, etc., and for the punishment of one who aids and assists a prisoner
under arrest in escaping or attempting to escape. People v. Marks (1912), 75 Misc.
404.

Indictment. — ^Upon evidence before the grand Jury that a police officer had in
lawful custody upon a charge of felony one who he had reasonable cause to believe
had committed the crime; that his prisoner attempted to escape and that defendant
attempted to rescue him from the police officer, defendant is indictable under both
sections 1692 and 1696 of the Penal Law, and, there being sufficient legal evidence
to bring defendant's acts within said section 1692, the failure to include a count
under the other section does not vitiate the indictment People v. Marks (1912),
75 Misc. 404.

§ 1820-a. Notaries and conunissionen of deeds.

Subdivision 2. — ^A notary public who draws and takes the affidavit of an indi-
vidual in such form as to lead the affiant to believe that it is of the general character
of a passport is guilty of a violation of subdivision 2 of this section. Rept. of
Atty. Genl. (1911), Vol. 2, p. 550.

§ 1824. Attempting to prevent officer from performing duty.

See People ex rel. Fried v. Frank (1911), 73 Misc. 1, 130 N. Y. Suw). 701.

§ 1897. Carrying and nse of dangerous weapons.

The amendment of 1911, making it a misdemeanor to have in one's possession
certain weapons of a size which may be concealed on one's person, means a physical
and not a constructive possession, and does not extend to having a weapon of the
kind described in a cabinet at home. People ex rel. Darling v. Warden (1911), 74
Misc. 151.

The Commissioner of Agriculture, his appointees and employees may carry danger-
ous or deadly weapons in any public place at any time without a written license



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PENAL LAW. 397



L. 1912, ch. 812. Sunday; waiver of immunity. §2446.

therefor when enforcing the provisions of article 5 of chapter 9 of the Laws of
1909 as amended. Rept. of Atty. Genl. (1911), Vol. 2, p. 631.

The carrying or possessing of a slnngshot even without proof of specific ulterior
criminal intent is within the character of acts which the Legislature may condemn.
Such legislation does not violiCte the provision of the Constitution of the United
States that the right of the people to keep and bear arms shall not be infringed,
which is not designed to control legislatibn by the state. Moreover, a slungshot
is not one of those weapons intended either by the Constitution or the Bill of
Rights. Such possession must be a knowing and voluntary one which places the
weapon within the immediate control and reach of the accused and where it is
available for unlawful use if he so desires, and should not be construed to mean
a possession such as would theoretically and technically follow from the legal
ownership of a weapon in a collection of curious and interesting objects or which
might result temporarily and incidentally from the performance of some lawful
act People v. Persce (1912), 204 N. Y. 397.

§ 1942. FimishmeiLt for fourth conviotion of felony.

The penalty imposed by this section is not Justified where the defendant has
pleaded guilty of a lesser ofTense. People v. Bretton (1911), 144 App. Div. 282, 129
N. Y. Supp. 247.

§ 2010. Bape defined.

Age of female, sufficiency of evidence as to, see People v. Marks (1911), 146 App.
Div. 11.

§ 2013. No conyiction for rape on nnsnpported testimony.
See People v. Morrison (1911), 144 App. Div. 280.

§ 2034. Forcible entry and detainer.

This section applies only to forcible entry on and taking or keeping possession of
real property, and not to the mere taking or retaining possession of a chattel which
constitutes simply a trespass. Where defendants without force entered the premises
of complainant and took possession of a stove upon the claim that it had not been
paid for under the terms of a conditional contract for its sale, they cannot be
convicted of a violation of this section though the complainant testifies that she
was intimidated and threatened and the peace of the household was disturbed by
defendants in their efforts to remove the stove. People v. Baldwin (1911), 74 Misc.
384.

§ 2146. Public sports on Snnday.

A public exhibition of flying machines in operation, open to the public on payment
of an admission fee, or if otherwise carried on in such manner as to disturb the
peace of the neighborhood, is forbidden on Sunday. Rept of Atty. Qenl. (1911),
Vol. 2, p. 642.

§ 2152. Theatrical and other performances on Sunday.

Contracts providing for Sunday performances of a character prohibited by the laws
of this state are void and unenforceable. Albera v. Sciaretti (1911), 72 Misc. 496.

§ 2411. TTsing false weights and measures.

See People v. Golaberg (1911), 146 App. Div. 960, 131 N. Y. Supp. 481.

§ 2446. Waiver of immunity. — ^If it be provided by this chapter or any
other general or special law that a person shall not be prosecuted or



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398 PENAL LAW.



$ 2446. Waiver of immunity. L. 1912, ch. 312.

subjected to any penalty or forfeiture for or on account of any transac-
tion, matter or thing concerning which he may testify or produce evi-
dence, documentary or otherwise, or that testimony so given or produced
shall not be received against him upon any criminal investigation, prosecu-
tion or proceeding, such person may execute, acknowledge and file in the
office of the county clerk a statement expressly waiving such immunity or
privilege in respect to any transaction, matter or thing specified in such
statement and thereupon the testimony of such person or such evidence
in relation to such transaction, matter or thing may be received or pro-
duced before any judge or justice, court, tribunal, grand jury or other-
wise, and if so received or produced such person shall not be entitled to
any immunity or privilege on account of any testimony he may so give or
evidence so produced. (Added by L, 1912, ch, 312, in effect Apr. 15, 1912.)



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PERSONAL PROPERTY LAW. 399

Suspension of ownership. § 11.



PERSONAL PROFERTT LAW.

(L. 1909. ch. 45.)

§ 11. Suspension of ownership.

limitations of future interest in personal property are governed by the statute
regulating future estates in real property. Matter of Hansen (1911), 72 Misc. 610,
132 N. Y. Supp. 257.

Trust; lawfiQ suspension. — ^A will devised the use of the testator's residence to
his wife for life, at her death the property to become part of a trust The testator
placed his residuary estate in trust, to be converted into cash and to be divided
into six shares, to be set apart for each of the testator's six children, the funds
to be placed at interest for their benefit and for the benefit of the testator's wife.
The trustees were directed to pay over to the wife two-fifths of the net income
of each of the six portions for the term of her life, the remaining three-fifths of
the income to be paid to the children. It was further provided that upon the death
of the wife the share of two of the testator's children should be paid to them and
that the shares of the other children be retained by the trustees, and the income
be paid over to them until such time as the male children reached the age of thirty-
five years when they were to receive the principal, the female children to receive
the principal on reaching the age of thirty years. It was further provided that
if any of the children should die without issue after the testator and before reaching
the age which would entitle them to receive the principal, the share of such child
should be apportioned among the surviving children equally and that the trust
share of any child not having reached the prescribed age be proportionately in-
creased upon the trusts aforesaid, and that those who were not cestui que trustent,
nor within the age limitations prescribed by the will, should receive in cash the
share so accruing to them respectively. It was further provided that in the case
of the death of a child leaving issue before reaching the age entitling him to receive
the principal, the share of the decedent should go to the issue, but be held in trust
during the minorities of the issue and to be paid over to them at majority. It was
held, that the provision giving the wife for life two-thirds of the income from the
portions of the trust fund set apart for the children merely created a charge upon the
income of the several trusts and did not also create a trust estate for the benefit
of the widow, and hence the provision for the wife should not be considered on the
question as to whether the trust was to continue for more than two lives in being at
the testator's death. It was also held that the provision that in case a child should
die without issue his share should be divided and added to the shares of the
surviving children did not offend the statute against perpetuities by continuing
the trust for three lives, because the direction to apportion such share among the
survivors referred only to the original portion left to the several children, and if
a child having taken a share of a deceased child should himself die, the sub-share
would not pass to the trust shares of the survivors, but would be assets of the
testator's estate undisposed of by the will. Orr v. Orr (1911), 147 App. Div. 758.

A bequest of funds in trust will be upheld only when, by every possible con-
tingency provided by the terms of the trust, it will terminate at the end of two
lives in being at the death of the testator. Bailey v. Buffalo Loan, etc., Co. (1911),
75 Misc. 23.

Unlawful suspension. — Gift of a legacy to a hospital incorporated at a certain
place at testator's death or within five years thereafter, with directions to testator's
executors to retain the amount for five years after his decease is, in the absence of
any such hospital at the time of the testator's death, an unlawful suspension. South-
ampton Hospital Association v. Fordham (1911), 72 Biisc 247, 131 N. Y. Supp. 91.



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400 PERSONAL PROPERTY LAW.

§§ 12, 19-21, 23, 81. Investment of trust funds.

Where a trust is invalid for illegal suspension of the power of alienation, provi-
sions as to accumulations of income which might otherwise be valid fall with the
principal of the trust fund. Bailey v. Buffalo Loan, etc., Co. (1911), 75 Misc. 28.

§ 12. Gifts and bequests of personal property for charitable purposes.
See cases cited under Real Property Law, section 113.

§ 19. Disaffirmance of fraudulent acts by executors and others.

The creditor of a decedent may sue on his own behalf and for the benefit of all
other creditors of the decedent to set aside conveyances formerly made by the
decedent for the purpose of defrauding creditors without a prior demand on the



Online LibraryClarence Frank Birdseye New York (State)Annotated consolidated laws of the State of New York as amended to January 1 ... → online text (page 50 of 81)