BEGEN v. CURTIS et al.

(Supreme Court, Appellate Division, First Department. March 20, 1903.) 1. SUBMISSION OF CONTROVERSY-DEFECTS-DISMISSAL.

Where, on a submission of controversy without action, there is opposite the title a memorandum to the effect that it is a case agreed upon in a controversy submitted without action, pursuant to the Code of Civil Procedure, but it is not stated that the case agreed upon contains a statement of the facts, as required by the Code, and there is no stipulation between the parties that the papers constitute a case containing a statement of the facts which have been agreed upon, the submission will be dismissed.

Submission of controversy between Sadie M. Begen as plaintiff and Sarah L. Curtis and others as defendants. Submission dismissed. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, O'BRIEN, INGRAHAM, and LAUGHLÍN, JJ.

Edwin L. Ford, for plaintiff.

I. M. Pettus, for defendant.

PER CURIAM. The proposed submission in this case contains no agreement as to the facts which are admitted and form the subject of the alleged submission. Opposite the title, there is a memorandum to the effect that it is a case agreed upon in a controversy submitted without action, pursuant to the Code of Civil Procedure. That does not form any part of the submission, but is merely descriptive. And, furthermore, it is not stated that the case agreed upon contains a statement of the facts as required by the Code. There is no stipulation whatever between the parties that the papers constitute a case containing a statement of the facts which has been agreed upon.

The submission must therefore be dismissed, with leave to file a new submission.

PEOPLE v. FINUCAN.

(Supreme Court, Appellate Division, Second Department. March 13, 1903.) 1. PRIZE FIGHTING-WHAT CONSTITUTES.

A physical contest, without weapons, lasting 10 or 15 minutes, with intervals of rest, in which one contestant is knocked down once or twice. and finally knocked out, the spectators present being charged an admission to compensate the contestants, is a prize fight, within Pen. Code, § 458, punishing the instigating, aiding, and furthering a fight without weapons, commonly called a ring or prize fight, though no ring was marked off by ropes, and it does not appear what rules were in vogue.

2. SAME-CORROBORATION OF ACCOMPLICES.

Evidence in a prosecution for aiding and furthering a prize fight examined, and held to tend to corroborate an accomplice testifying to defendant's connection with the crime, as required by Code Cr. Proc. § 399.

Appeal from Trial Term, Nassau County.

Thomas Finucan was convicted of aiding and abetting a prize fight, and appeals. Affirmed.

80 N.Y.S.-59

and 114 New York State Reporter

Argued before BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

Henry A. Monfort (Ralph Stout, on the brief), for appellant.
James P. Niemann, for the People.

WOODWARD, J. The defendant was charged by indictment with the "crime of willfully and unlawfully instigating, aiding, encouraging, and furthering a contention or fight between two persons, commonly called a ring or prize fight, in violation of section 458 of the Penal Code of the state of New York," and it was further charged that the said crime was committed by the defendant as the owner, agent, lessee, tenant, and occupant of certain premises known as the "Washington Hotel," in the town of Hempstead, Nassau county, who is alleged to have rented a barn located upon the said hotel premises for the purpose of a prize fight on the 18th day of February, 1902, and that he then and there permitted divers persons, unlawfully assembled, to enter said premises, and witness said contention or prize fight, and did then and there instigate, aid, encourage, and further said fight between one Jack Collier and one Sam Chissel. Upon the trial the evidence tended to show that the defendant was the owner of the barn in question; that he had rented the same to the said Collier, through a friend, for the purpose of having a "smoker," with the privilege of a boxing match; and that upon the night in question 100 or more people assembled at the hotel, where tickets reading as follows were distributed among them: "Smoker. Jack Collier, Sam Chissel. One Dollar." These tickets were subsequently accepted for admission to the barn, where Collier and Chissel, dressed in regulation prize ring costumes, engaged in a contest, in which the latter was struck several times, and was finally knocked down, where he lay until some one counted 10 or more, when Collier was declared the winner, and the party repaired to the barroom of the defendant, where a melee ensued, in which the defendant lost a diamond pin and a sum of money. The defendant was found guilty of the crime charged, and appeals to this court.

It is urged that, as the indictment does not follow the exact language of the statute, the conviction of the defendant cannot be sustained, unless it was proved upon the trial that he was guilty of aiding and abetting a “ring or prize fight." We are of opinion, however, that the evidence was such that the jury might properly arrive at the conclusion that the contest which is admitted to have taken place in the defendant's barn was a ring or prize fight. It was a physical contest, without weapons, between two individuals, for the purpose of entertainment. Those who were present each contributed $1 for the purpose, we may assume, of compensating the contestants; and, as it is conceded that one of the men in the arena was knocked down once or twice, and that the contest lasted for 10 or 15 minutes, with intervals of rest, it is hardly to be doubted that it was such a meeting as the law was intended to prevent. The mere fact that the fighting space was not marked off by ropes into a "ring" of 16 or 24 feet, or that the evidence does not show what rules were in vogue, is of little practical importance. The contest, by whatever name it may be called, was evidently what 99 people of every 100 in the ordinary walks of life would

call a ring or prize fight, and it was this kind of contests which the Legislature sought to prohibit by the provision of the Penal Code now under consideration. The jury having found that the defendant was guilty of aiding and abetting this contest, it should be sustained, unless there was manifest error in the trial.

It is urged that, as the evidence to connect the defendant with the letting of the premises was furnished by one of the contestants, an accomplice in the crime, the conviction cannot be sustained, unless such evidence is corroborated, as provided by section 399 of the Code of Criminal Procedure. It is also suggested that the evidence of the accomplice simply shows that it was represented to the defendant that the barn was wanted for the purpose of holding a "smoker," with "the privilege of having a boxing contest." But the evidence, while declaring that the language used was that quoted above, goes further, and shows that the accomplice asked the defendant if it was all safe, and that the latter said it was all right, indicating that the parties, while talking of a boxing match, had in mind that they were not acting within the spirit of the law. Assuming that one of the contestants who made the bargain for the barn was an accomplice, we think there is no difficulty in pointing out evidence which would tend to connect the defendant with the commission of the crime, as required by section 399 of the Code of Criminal Procedure, entirely independent of that furnished by the accomplice. The very circumstance that the defendant, knowing that the place was rented for the use of a crowd of men, made no effort to find out what use was to be made of the premises, but avoided going into the building during the day, is enough to justify a suspicion, at least, that he did not want to know what was in fact to be done. When it is remembered that the evidence showed that the greater part of the crowd were present in his barroom before the contest, that the tickets were on sale there, or were handed around in his presence, the evidence points unmistakably to the conclusion that the defendant either knew of the real purpose, or took such pains not to know as amounts to the same thing. The defendant could not close his eyes to matters which were passing about him, and allow his premises to be used in violation of law, and escape responsibility. Under the rule established in People v. Everhardt, 104 N. Y. 591, II N. E. 62, we think the evidence did tend to corroborate that of the accomplice, and the question of the sufficiency of such corroboration was for the jury to determine.

The judgment appealed from should be affirmed. All concur.

BACHMANN v. PAUL WEIDMANN BREWING CO.

(Supreme Court, Appellate Division, Second Department. March 13, 1903.) 1. COLLISION IN STREET-NEGLIGENCE OF DRIVER-CONTRIBUTORY NEGLIGence. The driver of a brewery truck, when within about 40 feet of a street crossing, whipped up his horses, and the driver of a butcher's wagon attempting to cross in front of the truck was injured in the ensuing collision. Held, that the question whether the driver of the butcher's wagon 11. See Highways, vol. 25, Cent. Dig. § 473.

and 114 New York State Reporter

was guilty of contributory negligence in attempting to cross in front of the brewery truck was a question for the jury.

2. PERSONAL INJURIES-EXCESSIVE VERDICT-REVIEW.

The modern tendency is against interfering with the jury in its determination of the amount of damages for personal injuries; and, where the verdict is not so far excessive as to warrant the conclusion that the jury was actuated by improper motives, it will not be disturbed.

Goodrich, P. J., dissenting.

Appeal from Trial Term, Kings County.

Action by Joseph Bachmann against the Paul Weidmann Brewing Company. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Affirmed.

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

Grant C. Fox, for appellant.

James C. Cropsey, for responde ̈t.

PER CURIAM. This is an action to recover damages for a personal injury alleged to have been sustained from the negligence of the defendant's driver. The accident occurred on the 21st day of November, 1899, at the intersection of Washington and Greene avenues, borough of Brooklyn. The plaintiff was driving a butcher wagon eastward on Greene avenue, and as he was crossing Washington avenue his wagon was struck by the defendant's brewery truck, which came down Washington avenue from the north. There is evidence in the case from which the jury might properly infer that when the plaintiff was about 20 feet from Washington avenue the brewery truck was at least 100 feet from Greene avenue. The plaintiff saw this situation, and appears to have acted upon the not unreasonable supposition that he had time to cross in safety. At the same time there was an express wagon on Greene avenue, going in the opposite direction to the plaintiff; and the driver of this vehicle, who was about the same distance from the crossing, appears to have acted upon the same theory. The driver of the brewery truck, when within about 40 feet of the crossing, whipped up his horses, and again when they were within 10 feet of the crossing, and there is no suggestion on the part of the defendant that this conduct on the part of its driver did not constitute actionable negligence. The defendant, however, insists that it was contributory negligence on the part of the plaintiff to attempt to drive across in front of the approaching brewery truck in view of the conduct of its own driver. The evidence details the situation at this street intersection, where the rights of the parties were equal, and it presents a question of fact, which it was the province of the jury to determine. The facts have been found in favor of the plaintiff, and with this determination this court is not justified in interfering.

It is urged that the judgment for $10,521.20 is excessive, and a large number of cases in which lesser verdicts have been sustained, and in which the court has modified the judgment, are called to our attention. The modern tendency, however, is against interfering with the jury in determining the amount of damages, and the verdict in this case is not

so far excessive as to warrant the conclusion that the jury was actuated by improper motives in reaching its verdict.

We have examined the exceptions urged in reference to the admission and exclusion of evidence, but do not find reversible error. The trial seems to have been conducted with all due regard to the rights of the defendant, and the plaintiff should not longer be withheld from his rights.

The judgment and order appealed from should be affirmed, with

costs.

GOODRICH, P. J., dissents.

In re CONGER'S WILL.

(Supreme Court, Appellate Division, Fourth Department. March 10, 1903.) 1. WILLS-CONSTRUCTION AS CREATING TRUST-PERPETUITIES.

Testator bequeathed the income of certain stock to his wife and daughter, and to the survivor of them, for life. the income to be paid over to them by his executors. After their death the income of such stock was to go to his son-in-law for life, should he survive them, and after the death of all three the stock was given to various legatees. The three members of his family were named as executors, and after their death the appointment of an "executor or trustee" for the purpose of carrying out the "trusts and bequests" was directed. Held, that no trust was created in the executors, but a mere power in trust, so that in that respect there was no violation of Laws 1897, c. 417, § 2, providing that the absolute ownership of personal property shall not be suspended by any limitation or condition in a will for a longer period than during the continuance of two lives in being.

2. SAME-CONSTRUCTION-VESTED REMAINDER-PERPETUITIES.

Testator bequeathed the income of certain stock to his wife and daughter and to the survivor of them, for life, and further provided that "I give and bequeath" the income of said stock to my son-in-law for life "after the death of" my wife and daughter. Then followed a provision that, "after the death of" my wife, daughter, and son-in-law, "I give, devise and bequeath" said stock to certain legatees. Held, the words of gift being in the present tense, the stock vested in the remaindermen absolutely, the time of enjoyment only being postponed, until after the death of the life tenants, so that in that respect there was no violation of Laws 1897, c. 417, § 2, providing that the absolute ownership of personal property shall not be suspended by any limitation or condition in a will for a longer period than during the continuance of two lives in being.

8. SAME-PERPETUITIES-ABROGATION OF LIFE ESTATE.

Where a will creates three life estates in a fund, contrary to the provisions of Laws 1897, c. 417, § 2, providing that the absolute ownership of personal property shall not be suspended by any condition in a will for a longer period than two lives in being, the last life estate will be abrogated, and the remainder will be allowed to vest in the remaindermen. 4. SAME-CONSTRUCTION-TENANCY IN COMMON.

Testator bequeathed to his wife and daughter, and to the survivor of them, the use, for and during their natural lives, of certain stock, and directed that the income and interest thereof "be annually paid equally to my said wife and daughter during their joint lives, and the whole of said income to the survivor during her life after the death of the other." After the death of both, the use of the stock was to go to his son-in-law for life, with remainder over to other legatees. The statute against perpetuities was violated as to that half of the stock which belonged first