App. Div.] SECOND DEPARTMENT, JANUARY TERM, 1903. at which he might try the same. (Harney v. Provident Savings Society, 41 App. Div. 410, 412.) But the Code provides that “if it is made to appear to the court that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term for which the cause is or may be noticed, the amended pleading may be stricken out," etc. We think the facts presented to the learned court justified the conclusion that the amended pleading was not made in good faith, and that it was intended to accomplish delay and loss of privileges to the plaintiff. This is practically conceded by the defendant, but it is urged that the facts thus brought to the attention of the court related to a proposition for a compromise, and that these facts may not properly be taken into consideration upon the motion to strike out. But the provision of the statute is that "if it is made to appear to the court," etc., and if the facts come to the knowledge of the court which justify the conclusion here reached, it is not material how they are conveyed to the court. It is true, of course, that upon the trial propositions looking to a compromise or settlement cannot be placed in evidence. (Tennant v. Dudley, 144 N. Y. 504.) But in a mere question of practice, where the element of good faith is lacking on the part of the adverse party, we know of no legal reason why, in the protection of the rights of his client, an attorney might not convey to the court the substance of letters or oral propositions which not only proposed a compromise, but which contained an express or implied threat to use dilatory tactics if the proposition was not accepted. The order appealed from should be affirmed, with costs. GOODRICH, P. J., BARTLETT, HIRSCHBERG and JENKS, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. SECOND DEPARTMENT, JANUARY TERM, 1903. [Vol. 79. THE PEOPLE OF THE STATE OF NEW YORK ex rel. SAMUEL SANDMAN, Respondent, v. FRED H. TUTHILL, a Justice of the Peace in and for the County of Suffolk, Appellant, Impleaded with EDGAR W. STEELE. Information that a crime has been committed - a statement that certain persons committed the crime of misdemeanor in that, at a time and place stated, they violated the Liquor Tax Law, is insufficient. Section 148 of the Code of Criminal Procedure, which provides, "When an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them," and section 149 of that Code, which provides, "The depositions must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the crime and the guilt of the defendant," contemplate that the information shall set forth that a definite crime has been committed, not with all the particularity of an indictment, but with sufficient definiteness to inform the magistrate that some particular offense against the law is charged. An information which alleges that certain persons "did commit the crime of misdemeanor in that they did, at the time and place above named, unlawfully, wilfully and knowingly violate the Liquor Tax Law of the State of New York," is fatally defective. APPEAL by the defendant, Fred H. Tuthill, a justice of the peace in and for the county of Suffolk, from an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 25th day of February, 1902, granting an absolute writ of prohibition against the said defendant. William Vanamee, for the appellant. Joseph M. Belford, for the respondent. WOODWARD, J.: The writ now under consideration absolutely prohibits and restrains the appellant, a justice of the peace of the county of Suffolk, from issuing any compulsory process of subpoena under a certain information previously laid before him by one Edgar W. Steele, a special excise agent of this State. The information is App. Div.] SECOND DEPARTMENT, JANUARY TERM, 1903. made upon information and belief "that on or after the 1st day of May, 1901, at the town of Riverhead, in said County of Suffolk, one David Sandman and other persons of said town of Riverhead, County of Suffolk, did commit the crime of misdemeanor in that they did at the time and place above named, unlawfully, wilfully and knowingly violate the Liquor Tax Law of the State of New York." Acting upon this information subpoenas were issued and the relator, Sandman, was examined on each of six different days, and was subsequently committed for contempt in refusing to answer a certain question on the ground that it might tend to incriminate him. He was released from the county jail upon a writ of habeas corpus, on the ground that the information on which the proceeding rested was wholly insufficient, but the magistrate continued to take testimony under the information, and the necessary steps were taken to secure the writ appealed from. The question presented is whether the information on which the proceeding before the justice of the peace was instituted and conducted was sufficient to give jurisdiction. There can be no reasonable question upon this point; the information does not comply with the letter or spirit of the statute. Section 148 of the Code of Criminal Procedure, which is the authority for the proceeding, if any, provides: "When an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them." It is not a compliance with this statute to declare generally that "the crime of misdemeanor" has been committed on or after a given date, within a given township, by a violation of the Liquor Tax Law. The statute contemplates that the information shall set forth that a definite crime has been committed, not with all of the particularity of an indictment, but with sufficient definiteness so that the magistrate may know that some particular offense against the law is charged. This is evident from the provisions of section 149 of the Code of Criminal Procedure, which provides that "The depositions must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the crime and the guilt of the defendant." It is "the crime" which the depositions must tend to establish, and section 148 pro SECOND DEPARTMENT, JANUARY TERM, 1903. [Vol. 79. vides for information "of the commission of a crime." To make a general allegation that some one has been guilty of a violation of the Liquor Tax Law, a general statute providing the details regulating the sale of intoxicating liquors, and then to permit a general inquiry of the defendant and others as to the entire details of the conduct of the liquor business, would be an act so entirely hostile to our system of jurisprudence as to shock the sense of justice of English-speaking people generally. It would be, in effect, to make a man his own accuser, and to subject every detail of his business to judicial investigation at the whim or caprice of every person in the community. The statute may serve a useful purpose within reasonable limits, but to give it the construction demanded by the appellant is to make it an instrument of petty persecution, having no sanction in our system. The information must set forth that “ a crime" has been committed in order that the magistrate shall have jurisdiction, and we are clearly of opinion that the information before the justice in this proceeding did not meet the requirements of the law. (See People ex rel. Allen v. Hagan, 170 N. Y. 46, 51.) We are of opinion that under the provisions of section 2100 of the Code of Civil Procedure the court had full power to make the order appealed from. The order appealed from should be affirmed, with costs. GOODRICH, P. J., BARTLETT, HIRSCHBERG and JENKS, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. CARRIE HARRINGTON, as Administratrix, etc., of WILLIAM BEST, Deceased, Respondent, v. ERIE RAILROAD COMPANY, Appellant. Negligence-injury to an employee of a foundry company on its land, on which a railroad company has laid tracks and upon which an engine entered, striking cars thereon which ran over the employee the employee was not a fellow-servant of the engine crew· charge as to the absence of a flagman and a failure to give any signal. -- In an action to recover damages for the alleged negligent killing of the plaintiff's intestate, it appeared that the intestate was an assistant shipping clerk in App. Div.] SECOND DEPARTMENT, JANUARY TERM, 1903. the employ of a foundry company located adjacent to the line of the defendant's railroad; that, pursuant to an arrangement with the foundry company, which was a large shipper, the defendant had constructed or superintended the construction, upon the foundry company's premises, of a number of switches which connected with the defendant's tracks; that the foundry company maintained an engine for shifting cars about its yards, and that it was customary for the engine of one of the defendant's trains to run into such yard each working day and to take out such cars as were ready for shipment; that on the day of the accident the engine of this train entered the company's premises for the purpose of taking out a number of cars which had been standing upon the main switch for a number of hours; that it gave no signal of its approach and struck the cars with such violence as to shove them over a temporary plank crossing which had been constructed by the foundry company over the switch track, killing the plaintiff's intestate, who was then in the act of passing over the crossing. It appeared that the plaintiff's intestate was a man of good habits, fifty-seven years of age, who had good eyesight and good hearing; that before attempting to cross the track he looked in the direction from which the defendant's engine was approaching; that from the point where the intestate approached the track he could only see a short distance in that direction. Held, that a judgment in favor of the plaintiff, entered upon the verdict of a jury, should be affirmed; That the mere fact that the defendant was upon the premises of the foundry company under a license for the purpose of discharging its duties as a common carrier to the foundry company did not make the latter company the employer of the defendant's servants for any purpose and that the plaintiff's intestate was, consequently, not a fellow-servant of the defendant's engine crew; That, upon the evidence, the question whether the plaintiff's intestate was guilty of contributory negligence was properly submitted to the jury; That, while it would have been improper for the court to charge that it was the defendant's duty to station a flagman at the temporary crossing, it was proper for the plaintiff to show that no flagman was, in fact, stationed at the crossing and that no signals were given, in order that the jury might have before it the real situation under which the defendant was operating its engine, so that it might determine whether such operation, under all the circumstances, constituted negligence. APPEAL by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 23d day of November, 1901, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 12th day of November, 1901, denying the defendant's motion for a new trial made upon the minutes. |