NORTHEASTERN CONST. CO. v. CITY OF was required to do and furnish under the

NEW YORK.

(Court of Appeals of New York. Feb. 29, 1916.) 1. CONTRACTS 198(1) — CONSTRUCTION OF CONTRACT.

A contract prepared by a municipality pro viding for the furnishing and installation of mechanical and electrical equipment on piers contained a number of articles under "General Conditions" applicable to all of the classes of work, while the work was divided into five separate classes. Under class 1, entitled "Electric Generating, Distributing, and Lighting Equipment," there was an article declaring that the piers had been constructed with the intention of installing the apparatus called for in the specifications, but, should the city accept a proposal for such class of work based on other apparatus, the cost of making changes should be borne by the contractor. This provision was Lot incorporated in the "General Conditions," while the contract under the class "Elevators" provided that the city should provide hatchways, including the extension of the same above the roof level where such extension should be necessary to allow the car to travel to the top landing. The city approved the type of elevator offered by plaintiff contractor. Held, that the city was bound to make any changes necessary in the hatchways and penthouses; the provision as to expense of changing the pier by reason of change in apparatus being applicable only to electrical equipment.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 861; Dec. Dig. 198(1).] 2. CONTRACTS

198(1)

CONTRACT-TESTS.

CONSTRUCTION OF

Where a contract for the equipping of a pier with machinery provided that, when the equipment was sufficiently completed to require the occupation of the electric generating plant, the contractor should furnish a competent crew to operate the plant for the period of six days, during which time proper tests should be made, the contractor could not recover from the city for coal and labor used in operating the plant to make the tests.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 861; Dec. Dig. 198(1).] Cuddeback and Seabury, JJ., dissenting. Appeal from Supreme Court, Appellate Division, First Department.

Action by the Northeastern Construction Company against the City of New York. From a judgment of the Appellate Division (160 App. Div. 884, 144 N. Y. Supp. 1132) affirming a judgment of the Trial Term dismissing the complaint, plaintiff appeals. Reversed and remanded.

Chase Mellen, of New York City, for appellant. Lamar Hardy, Corp. Counsel, of New York City (Charles J. Nehrbas, of New York City, of counsel), for respondent.

terms of said contract, and, notwithstanding its protest and denial to the contrary, it was required to and did perform such work and furnish such materials. This action was

brought to recover damages for a breach of the contract.

[1] The work for which plaintiff sought to recover was of two classes: (a) Preparing hatchways, including the extension of the same above the roof level, and cutting of penthouses over the passenger elevator shafts; (b) furnishing and delivering coal, 306 tons, and labor for firing boilers in connection with portions of electrical generating plant.

The contract in question covered nine several piers. The invitation to bidders divided the whole work into five several classes. The specifications annexed to and forming a part of the contract contain articles 1 to 26 under "General Conditions." The work is then specified under separate classes, five in number. The separate "classes" necessary to be considered here are class 1, entitled "Electric Generating, Distributing, and Lighting Equipment," class 2, entitled "Boiler and Mechanical Draft Plant, Steam Piping, Auxiliaries, Heating, etc.," and class 3, entitled "Elevators." Under the last class elevators were to be furnished by the contractor complete and ready for operation, but provision was not made as to the particular make of elevators to be supplied. Article 217 of this class provided:

"The city will prepare hatchways, including the extension of the same above the roof level where the extension is necessary to allow the of necessary pit at proper distance below the car to travel to the top landing and the making lowest level. All machinery shall be carried overhead," etc.

The plaintiff seeks to recover for preparing the hatchways, including the extension of the same above the roof level and cutting the penthouses over the passenger elevator shafts, asserting that, defendant having constructed the hatchways as above stated, the work required of plaintiff was work the city covenanted to perform, and, the latter having approved a pattern of elevators, it was the duty of the city to perform the work, and not the duty of plaintiff to perform the same. The trial justice at the close of plaintiff's case so held, but at the close of the

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trial his attention was called to the following | pattern of elevators submitted by plaintiff, provision of the contract under class 1, entitled "Electric Generating, Distributing, and Lighting Equipment," and being article 27 of the same:

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defendant knew that such injury had been caus- The second count of the indictment is in ed, and, notwithstanding such knowledge, left all respects like the first, except that it the scene of the accident without complying charges the injury to have been caused by see Criminal accident.

with the law.

-

[Ed. Note.-For other cases, Law, Cent. Dig. § 1267; Dec. Dig. 561(2).] [1] The demurrer attacked the indictment 3. HIGHWAYS 186 VIOLATION OF HIGH- as insufficient because it omitted to state WAY LAW-EVIDENCE-ADMISSIBILITY. that the injury was caused or that the acUpon the trial of an indictment for a viola-cident occurred on a public highway or on a tion of the Highway Law, § 290, subd. 3, while evidence might properly be given showing how much a person was injured in an automobile collision as bearing upon the seriousness of the accident and tending to show that it should not escape the notice of the defendant, subsequent suffering of the injured person or the length of time he remained in the hospital and the details of the medical or surgical treatment which he received could have no legitimate bearing upon any of the issues arising on the trial of an indictment and were inadmissible.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 476, 477; Dec. Dig.

186.]

public highway of any sort. A majority of the members of the court are of the opinion that this objection was not well taken or that the omission is not serious enough to warrant a reversal on that ground. Under these circumstances it does not seem worth while to discuss the alleged insufficiency of the indictment.

[2] The prosecution grew out of a collision between an automobile driven by the defendant and a milk wagon driven by Brainard

4. HIGHWAYS 186 VIOLATION OF HIGH-W. Cole. All the witnesses who testified to WAY LAW-EVIDENCE-ADMISSIBILITY.

On the trial of an indictment for a violation of the Highway Law, § 290, subd. 3, testimony of a witness that he had seen an automobile near the time and place of the accident running at a high rate of speed, without being able to identify it or state any fact warranting an inference that it was the defendant's, was inadmissible. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 476, 477; Dec. Dig. 186.]

Seabury and Pound, JJ., dissenting.

the circumstances of the accident agree that it was caused by the skidding of the automobile. There were two other persons in the car with the defendant, Martin D. Gilligan and Charles W. H. Lytton. Immediately after the collision occurred the defendant stopped his automobile and Gilligan and Lytton went back to the scene of the accident. Gilligan testified that he ascertained that Cole had not been hurt, and upon return

Appeal from Supreme Court, Appellate Di- ing to the automobile he so informed the devision, Fourth Department.

Raymond J. Curtis was convicted in the county court of a violation of the Highway Law and such conviction was affirmed by the Appellate Division (168 App. Div. 935, 153 N. Y. Supp. 1132), which also affirmed a judgment of the county court overruling a demurrer to the indictment, and defendant appeals. Reversed.

Pardon C. Williams, of Watertown, for appellant. Claude B. Alverson, District Attorney, of Watertown, for respondent.

fendant, adding that there was no need of remaining there. Lytton, on the other hand, swore that when he came back and got into the car he said: "That man is pretty badly hurt." He admitted, however, that he did not know whether the defendant heard him make this statement or not. The defendant himself testified that when Gilligan came back he told him that the man had been thrown from the wagon but was not hurt, and that no damage had been done at all. The defendant thereupon said to Gilligan: "Make mighty sure he isn't hurt." Gilligan then went back to the place where Cole was and almost immediately returned, saying that "the man was not hurt, but was merely mad and scared." The defendant positively denied that Lytton said anything to him when he got into the car or after he got in. "When I left the scene of the accident," he said, "I did not have any knowledge that Mr. Cole was injured or that any damage had been done to his property. No one told me that Mr. Cole was hurt on that night or that any one was hurt."

WILLARD BARTLETT, C. J. By the first count of the indictment the grand jury of Jefferson county accused the defendant of the crime of violating subdivision 3 of section 290 of the Highway Law of the state of New York, committed as follows: On October 11, 1913, at the city of Watertown, in said county and state, the said Raymond J. Curtis wrongfully, unlawfully, and feloniously, while operating an automobile, through his own culpability, caused injury to the property and person of one Brainard W. Cole, and the said Raymond J. Curtis then and there This brief statement of the evidence serves well knowing that injury had been caused to to show that the case was a close one on the such person and property with wrongful, un- facts, and that its determination depended lawful, and felonious intent did leave the largely upon the knowledge which the deplace of said injury without giving his name, fendant had as to the consequences of the address, or license number to the said Brain- collision. His position upon the trial was ard W. Cole or to any other person at the that having been assured by his companions scene of the injury, and wrongfully and un- that nothing serious had happened as the lawfully failed to report said injury to the result of the collision, he did not regard it nearest police station or judicial officer. as an accident which it was his duty to reFor other cases sec same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

port to the authorities under the statute. hospital, and that he made an external exThere was very little basis in the evidence for questioning the truthfulness of his statement to this effect except the testimony of Lytton, and, as has already been pointed out, Lytton would not swear that the defendant heard what he said to the effect that the man was pretty badly hurt.

It was essential to a conviction under either or both counts of the indictment that the jury should be satisfied beyond a reasonable doubt not only that an injury had been caused to Brainard W. Cole or his property, but that the defendant knew that such injury had been caused, and notwithstanding such knowledge left the scene of the accident without giving his name, address, or license number, and that he neglected subsequently to report the injury to the nearest police station or judicial officer as the Highway Law requires. The most important question in the case, therefore, was the knowledge of the defendant. Where a case is as close as this was on the facts, a substantial error in the admission of evidence to the prejudice of the defendant cannot well be disre garded, and we are convinced that the learned trial court committed errors in this respect which demand a reversal of the judgment.

The case was tried as though it were an action against the defendant for negligence, rather than as a prosecution for a statutory crime. Evidence was admitted in reference to the injuries suffered by the complainant which was wholly irrelevant and very harmful.

amination four weeks before the trial which showed the same conditions as those discovered at the time of making the X-ray pictures. The witness was not still treating the patient, but he was giving him advice. Mr. Cole himself was also permitted to testify, over objection and exception, that he remained in the hospital seven weeks and five days after being hurt; that he was injured in his back and that he had not at the time of the trial recovered from the injuries which he received on the night of the accident.

We think that this evidence was inadmissible and must have been highly injurious to the defendant. It tended to convince the jury that he had inflicted serious injuries upon another traveler to whose fate and sufferings he was so indifferent that he had driven on without onering him any aid after the accident; especially as the trial judge refused to allow him to prove that when he learned how seriously Mr. Cole was hurt he promptly paid him the sum of $5,600 by way of reimbursement without disputing his liability for the collision.

[4] Another error was committed in receiving the testimony of a witness named William H. Place to the effect that he saw an automobile running through Washington street in the city of Watertown about 12 o'clock on the night of the accident at a speed of 40 or 50 miles an hour. The witness did not and could not identify the car, nor did he state any fact which warranted the inference that it was the automobile of [3] Upon the trial of an indictment for a the defendant. Counsel for the defendant obviolation of section 290 of the Highway Law, jected to this testimony and excepted to its evidence might properly be given showing admission. The exception was well taken. how much a person was injured in an auto- | While this erroneous ruling might not require mobile collision as bearing upon the serious- the reversal of the judgment standing alone, ness of the accident and tending to show that it ought not to have escaped the notice and attention of the defendant. The subsequent suffering of the injured person, how ever, and the length of time he was compelled to remain in the hospital and the details of the medical or surgical treatment which he received could have no legitimate bearing upon any of the issues arising on the trial of the indictment. Testimony of this character was offered by the prosecution in the present case and admitted over the objection and exception of counsel for the defendant. The physician who treated the complainant was allowed to testify that he had an X-ray picture taken of the spine of his patient, and that this picture showed that the tenth vertebra was fractured and that two ribs were displaced; that he saw the patient every day for seven or eight weeks; that a second X-ray photograph was taken revealing the same conditions as those previously found; that it was about eight weeks after the injury before he left the

it adds to the weight of the more serious error which has already been considered and illustrates the adverse attitude of the trial court toward the defendant. The objectionable testimony of Place only served as a suggestion to the jury to guess that the defendant was driving his automobile at an unlawful rate of speed just before or just after the collision. The conclusions of the jury in a criminal case ought not to be based to any extent on mere guesswork.

The judgment of conviction should be reversed, and a new trial ordered.

HISCOCK, CHASE, COLLIN, and HOGAN, JJ., concur.

SEABURY and POUND, JJ., dissent on the ground that no substantial right of defendant upon the merits is prejudiced by the judgment herein. Code of Criminal Procedure, §§ 282, 285, 542.

Judgment of conviction reversed, etc.

date by curative act any proceedings which it PEOPLE ex rel. KASTNING v. MILITZER might have authorized in advance.

Where the result of an election establishing Where on appeal the bill of exceptions contained an agreed statement of facts, whose corsions of Hurd's Rev. St. 1913, c. 122, §§ 97aa township high school district under the provirectness was attested by the attorneys for each 97g, providing for elections to establish such party, but the bill did not state that it contain-districts, was contested by quo warranto on the ed all the evidence, the want of such recital did not require the affirmance of the judgment on the ground that, where all the evidence does not appear in the record, it will be presumed that sufficient proof was made to sustain the judgment of the trial court, since such agreed statement of facts in the record takes the place of a bill of exceptions, and it will be presumed that the statement contains all the facts.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2873; Dec. Dig. 673(1).] 3. ELECTIONS 65- WOMAN'S SUFFRAGE TOWNSHIP HIGH SCHOOLS-RIGHT TO VOTE. Under the provision of the Woman's Suffrage Act (Hurd's Rev. St. 1913, c. 46, §§ 546, 547), that women may vote upon all questions submitted to the electors of the various munici-J. palities and political subdivisions of the state, women are not authorized to vote upon the question of organizing a high school district, under the Township High School act of 1911 (Laws 1911, p. 505), since school districts are not among the municipalities mentioned in the Suffrage Act of 1913, and do not become political subdivisions until after their organization.

[Ed. Note.-For other cases, see Elections, Cent. Dig. 8 62; Dec. Dig. 65.]

4. SCHOOLS AND SCHOOL DISTRICTS 42(2) filed their plea of justification to the informaTOWNSHIP HIGH SCHOOLS-ELECTION-CuRATIVE ACT-VALIDITY.

tion, and upon hearing the court, on January 22, 1915, found the issues for respondents, defendants in error. This writ of error has been sued out to review that judgment.

The plea of defendants in error discloses, and the proof shows, that more than 50 of the legal voters of certain territory in Cook county signed a petition to organize such territory into a high school district under the

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