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and 140 New York State Reporter the walk was to be first-class. The agreed price was 18 cents per square foot. It is also undisputed that when completed it was not first-class, was a poor walk, did not harden properly, and several weeks after completion was still soft and easily broken, and did not fulfill the agreement under which it was constructed; and the defendant refused to pay for the same. The plaintiff testified that he offered to put on a new top dressing, and was forbidden to do so by the defendant, which is denied by the defendant; and the weight of evidence on that point seems to be with the defendant. The evidence also shows conclusivly that the walk could not be made first-class even by a new top dressing, and the condition of this walk was in no way the fault of the defendant, who was paying per square foot for a first-class walk more than a firstclass walk could be built for as shown by the evidence. The contract not having been fulfilled by the plaintiff on his part, the defendant was justified in refusing to pay for the same.

The appellant has called attention to errors committed on the trial. I have examined the evidence very carefully, and find none, either in the exclusion or admission of testimony, which require a reversal of the judgment. To justify the reversal of the justice's judgment, the error should be apparent. Southard v. Becker, 15 Misc. Rep. 436, 37 N. Y. Supp. 927; Merris v. Hunt, 71 Hun, 483, 24 N. Y. Supp. 976.

It is also urged on the part of the appellant that there is no evidence to sustain the judgment of $12; that it should have been for more, or nothing. Evidence was offered as to the value of the materials, the excavating and labor, and what it would cost to put on a new top dressing, etc.; also evidence that the walk was worth nothing, and that the real estate was worth less by reason of the walk as it was constructed. The evidence was conflicting, and on it the jury might well have found for the defendant; but, taking the whole evidence into consideration, they rendered a verdict in favor of the plaintiff for $12, and I see no good reason for disturbing their verdict. Where the evidence is conflicting, the appellate court cannot reverse the judgment. Clark v. Daniels, 29 App. Div. 600, 51 N. Y. Supp. 177; Ludlum v. Couch, 10 App. Div. 603, 42 N. Y. Supp. 370; Burnham v. Butler, 31 N. Y. 481.

The justice rendered two judgments-one in favor of the plaintiff for $12 and $1.40 costs, being costs to date of offer, and one in favor of the defendant for $8.60, being the costs of defendant after the offer. He should have deducted the defendant's costs after offer from the judgment of the plaintiff, and entered only a single judgment. Code Civ. Proc. § 2892; Southard v. Becker, 15 Misc. Rep. 436, 37 N. Y. Supp. 927.

In that case the court well says:

"It certainly would seem that it was not intended to leave the defendant with a simple claim against the plaintiff for the costs which accrued subsequent to the offer. It certainly is the object of all litigation to as nearly as possible by a judgment determine the exact rights of the parties and have the judgment as simple as possible, and in a matter involving only a money obligation, when each litigant has a money judgment against the other, seems to be far from a simple determination of their rights. * . It seems to me that the ends of justice will be furthered in this case by the entry of a single judgment."

There is also another reason why there should be but a single judgment, and that is that, should either party desire to appeal from the judgment, there would be no question in regard to the amount of costs required to be paid to perfect the appeal. Section 3047 of the Code of Civil Procedure requires the appellant to pay “the costs of the action included in the judgment,” indicating but a single judgment to appeal from. It was urged by the respondent herein that the appellant had failed to perfect his appeal by not paying all of the costs. If the judgment had been properly entered, as indicated above, there would have been no uncertainty in that respect; and, the appellant having paid the $1.40 included in the judgment, the appeal was properly perfected.

I think the judgment against the plaintiff for $8.60 should be reversed, and the judgment against the defendant as to the balance, $4.80, should be affirmed; but, for the same reasons set forth in Southard v. Becker, supra, such modification should be without costs to either party. Also see Code Civ. Proc. § 3066, subd. 5, as to costs where the judgment is affirmed in part.

Judgment in favor of the defendant reversed, and judgment in favor of plaintiff modified, and, as so modified, affirmed, without costs. Ordered accordingly.

(54 Misc. Rep. 459.)

PEOPLE v. SULLIVAN.

(Court of General Sessions, New York County. May, 1907.) CRIMINAL LAW-CONVICTION-CORRECTION OF SENTENCE.

The court, after conviction, is without power to revoke a sentence law. fully imposed and partly executed for the purpose of imposing a heavier sentence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, $ 2549.] Daniel Sullivan was convicted of crime and the people move to set aside the judgment. Motion denied.

William Travers Jerome, Dist. Atty., for the motion.
Carl Fischer-Hansen, opposed.

CRAIN, J. This is a motion that a judgment rendered against Daniel Sullivan by this court on the 19th day of April, 1907, by which judgment the said Daniel Sullivan was sentenced to imprisonment in the penitentiary of the county of New York for a term of two months, be vacated and set aside, and that a judgment and sentence be imposed upon the said Daniel Sullivan of a different character and for a longer term, in the light of the record of said Daniel Sullivan, as disclosed in the affidavits upon which the motion was made.

A preliminary objection to the consideration of this motion on the merits is taken in behalf of the defendant, based on the contention that this court, after the pronouncement of sentence of imprisonment, is without power to revoke the sentence for the purpose of imposing a heavier one, where the sentence is itself lawful and has been, in part, executed by the commencement thereunder of the imprisonment of the defendant. I am referred to a number of cases in other states in

and 140 New York State Reporter which the question involved in this contention in discussed, and in some of which such power in the court is denied. I am referred to no case directly in point in this state; and, in the short time which has been at my disposal, I have been unable to find any. The objection to the exercise ɔf such power by the court is that, could it be exercised, a defendant, in violation of his constitutional rights, might be punished twice for the same offense; first by undergoing imprisonment under the first sentence, and, then, by undergoing imprisonment under the second. This is the view taken by the Supreme Court of the United States in the case of Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. In the case of Grisham v. State, 19 Tex. App. 504, the court says on this point, at page 515 :

“But in criminal cases the power of courts over their judgments during the term at which they are rendered does not extend to cases where punishment has already been inflicted in whole or in part. Ex parte Lange, 18 Wall. (U. S.) 163, 21 L. Ed. 872. 'A conviction followed by an endurance of punishment will bar further prosecution for the same offense.' Wharton Crim. Prac. & Pl. (8th Ed.) § 460. citing Comm. v. Loud, 3 Metc. (Mass.) 328, 37 Am. Dec. 139; Comm. v. Keith, 8 Metc. (Mass.) 531; Fritz v. State, 40 Ind. 18. In the judgment of conviction rendered in the county court, and which was read as evidence by the defendant in support of his plea of former conviction, it is recited and ordered that he be remanded to the custody of the sheriff of Hunt county till such fine and costs are fully paid. It was, as stated a day or two after the rendition of this judgment, that the court of its own motion set it aside. It is but fair and reasonable to presume that in the interim between its rendition and attempted annulment and vacation the defendant had, according to its terms, either paid the fine and costs imposed, or been held in custody by the sheriff in default of such payment. If so, in either event, he had suffered some punishment under said judgment, and it was then beyond the power of the court either to set it aside, vacate, annul, or change it in any substantial respect, unless at the instance or on motion of the defendant."

See, to the same effect, Brown v. Rice, 57 Me. 55, 2 Am. Rep. 11; where the question is discussed at considerable length by Judge Kent; also, State v. Davis, 31 La. Ann. 249; People v. Meservey, 76 Mich. 223, 42 N. W. 1133, and People v. Kelley, 79 Mich. 320, 44 N. W. 615.

On these and other cases, I am inclined to the view that this preliminary objection is well taken and sustained by authority. This view constrains me to deny the present motion.

Motion denied.

(121 App. Div. 420.)

HANNA V. PITT & SCOTT, Limited. (Supreme Court, Appellate Division, Second Department. October 11, 1907.) CARRIERS-CARRIAGE OF GOODS-DUTY OF SHIPPER TO STATE TRUE WEIGHT.

It is not a part of the implied contract of shipment that a shipper should declare the true weight of an article shipped, and a shipper is not liable for negligence in understating the weight of an article of obvious nature, where an injury occurs because the tackle used in unloading it is insufficient, though adequate for the weight stated.

Appeal from Municipal Court, Borough of Brooklyn, Second District.

Action by William E. Hanna against Pitt & Scott, Limited. From an order overruling a demurrer to plaintiff's complaint, defendant appeals. Reversed, with directions.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, HOOKER, and MILLER, JJ.

Thomas A. Stoddart, for appellant.
Norman B. Beecher, for respondent.

HOOKER, J. The complaint alleges that the defendant, a corporation, delivered to the plaintiff's assignors, the Oceanic Steam Navigation Company, at New York City, a piece of machinery for transportation to Liverpool, England, and reshipment thence to Oporto, Portugal, and represented at the time of such shipment that the said piece of machinery, together with the timber in which it was packed, did not weigh more than 9,000 pounds, whereas the true weight was more than 19,000 pounds, and that the defendant in making said false representation acted negligently and carelessly; that, relying on said statements, the plaintiff's assignor furnished to its servants in Liverpool appliances for unloading the machinery which would safely stand a strain of more than the 9,000 pounds represented, to wit, a strain of 14,000 pounds, but which were insufficient appliances for lifting 19,000 pounds; that part of this discharging tackle broke while the machinery was being unloaded, which break was caused solely by the strain of the great and unforeseen weight of said machinery, and this accident caused personal injury to a stevedore, who was engaged in the unloading and who was exercising due care; that the stevedore became entitled to recover damages from the plaintiff's assignor on account of his injury, and that in settlement of his claim the plaintiff's assignor has been obliged to pay, and has paid, the stevedore a sum in settlement which was reasonable for that purpose. The complaint also alleges the assignment of the cause of action to the plaintiff, and demands judgment against the defendant for the sum paid by the plaintiff's assignor to the stevedore in settlement of his claim for personal injuries.

Neither the briefs of counsel nor our own somewhat extended research have disclosed any authority upon the question raised by this appeal, either ir. this country or in England. It is entirely apparent that the complaint does not state a cause of action, unless it be one for neg. ligence, and then only upon the theory that the defendant has omitted

106 N.Y.S.-10

and 140 New York State Reporter to perform some general or contractual duty it owed to the plaintiff's assignor, or negligently performed that duty. The contract of shipment is not set forth in the complaint, and hence we must presume that it contains such implied terms as the law reads into contracts of that nature.

The first question which should be determined in reaching a decision is whether there was an implied term of the contract that the defendant should disclose to the plaintiff's assignor the weight of this bulky piece of machinery. The cases have never gone to the extent of holding that such a duty rested upon the shipper. The duty of the shipper and the obligation of the carrier have been noticed in cases arising where articles of a dangerous nature have been shipped. In Brass v. Maitland, 6 Ell. & Bl. 470, a corrosive substance was packed in casks and delivered to the plaintiff as bleaching powder, to be carried in a ship. The plaintiff was ignorant that bleaching powder contained a corrosive substance, and the casks appeared outwardly to be sufficient. The corrosive substance escaped and destroyed the cargo; and Lord Campbell, in pronouncing judgment sustaining the declaration, said:

"Where the owners of a general ship undertake that they will receive goods and safely carry them and deliver them at the destined port, I am of opinion that the shippers undertake that they will not deliver, to be carried in the voyage, packages of goods of a dangerous nature, which those employed on behalf of the shipowner may not on inspection be reasonably expected to know to be of a dangerous nature, without expressly giving notice that they are of a dangerous nature."

In Farrant v. Barnes, 11 J. Scott (N. S.) 353, 362, the language of Lord Campbell in the Brass Case, supra, was quoted, and the principle approved. See, also, Williams v. East India Company, 3 East, 192, and Alston v. Herring, 11 Exch. 822.

In Pierce v. Winsor, 2 Sprague, 35, Fed. Cas. No. 11,151, mastic shipped in cakes ran together and adhered to the sides of the ship. The character of mastic was not generally known, and it was not understood by the carrier. Sprague, J., sitting in the District Court of the United States for the District of Massachusetts, said:

"In Brass v. Maitland, 6 Ellis & B. 470, the Chief Justice evidently took the view that the shipper of goods in a general ship impliedly contracts that the goods shipped shall not be injurious to other goods shipped in the usual course of lading a ship. * * This principle is a sound one. It throws the loss upon the party who generally has the best means of informing himself as to the character of the articles shipped.

This case is not between the shipper and the shipowner; but the rule applies equally well to the case of a charterer."

See, also, Standard Oil Company v. Tierney, 92 Ky. 367, 17 S. W. 1025, 14 L. R. A. 677, 36 Am. St. Rep. 595; B. & A. R. R. Co. v. Shanly, 107 Mass. 568.

The rule as finally deduced in Hutchinson on Carriers (3d Ed.) $ 798, is this:

“In every shipment there is an implied contract on the part of the shipper that his goods are not of such character as to cause injury to other goods, and that, no matter how innocent or how ignorant he may bave been of their real character, the law will impute to him knowledge of the fact, inasmuch as he has had a better opportunity of acquiring it than any other person."

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