FIRST DEPARTMENT, MAY TERM, 1902. [Vol. 72. they are regarded as dangerous and should always be received with caution and should not be admitted unless the evidence clearly brings them within the rule. Declarations or statements made in the presence of a party are not received as evidence in themselves, but for the purpose of ascertaining the reply the party to be affected makes to them. They are only competent when the person affected hears and fully comprehends the effect of the words spoken and when he is at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement by his remaining silent.” Judged by this rule it would seem that this statement was incompetent. The paper was read to the defendant, but he was cautioned that he was not required to speak as anything he said might be used against him, and was told that the object of reading the statement to him was to inform him of the nature of the evidence that the police had against him. There was certainly nothing under these circumstances which called upon the defendant to reply or from which his failure to reply could be deemed an assent to the truth of the statement. It might well be that the defendant being thus charged with murder, under arrest, cautioned by the captain not to speak, would consider his proper course to be to follow the captain's caution and say nothing. His silence under these circumstances cannot be deemed an assent to the truth of the statement made. While we think the evidence as to the defendant's identity was quite sufficient to justify the finding of the jury without Bauman's statement, yet as the identification of the defendant was the principal question at issue, and as this statement bore directly on that point and, if true, was conclusive against the defendant, its admission was an error of such a character as to require us to reverse the judgment. It follows that the judgment appealed from must be reversed and a new trial ordered. VAN BRUNT, P. J., and MCLAUGHLIN, J., concurred; HATCH and O'BRIEN, JJ., dissented. HATCH, J. (dissenting): No one, we think, can read this record without reaching the conclusion that the defendant was guilty of the offense charged in the App. Div.] FIRST DEPARTMENT, MAY TERM, 1902. indictment, and the jury would have been justified in convicting him of murder in the first degree. They did, however, as was their right, give the defendant the benefit of whatever doubt was raised by the testimony and found the defendant guilty of murder in the second degree. While the evidence is in a large measure derived from polluted sources, yet it is to be borne in mind that the only witnesses who could give testimony concerning it were those persons with whom the defendant consorted and cohabited; and immunity should not be given to the commission of crime simply because witnesses to guilt are themselves of bad character or criminals. If such rule should obtain many crimes of a heinous character would go unpunished. Confessedly, the defendant is of the same character, if not worse, than the worst of the witnesses against him, and he is not to be heard in complaint that his guilt may not be established by the evidence of those persons with whom he habitually associated. The law has placed about the consideration of such testimony sufficient safeguards to save every legal right of which this defendant was possessed. There are some known facts and circumstances which concededly exist and to which the defendant bore relation. The oral testimony of the witnesses fits into the known facts and circumstances in such manner and form as satisfies the mind beyond a reasonable doubt that truth proceeded from the mouths of these witnesses, even though moral degradation was their normal state. We have, therefore, presented a case where no member of this court has a reasonable doubt of the guilt of this defendant of the crime of which he has been convicted. He should not now be permitted to escape just punishment therefor if within any principle of law the conviction may be sustained. It must be conceded that the statement which was read in evidence made by Bauman to Police Captain Diamond, and by him read to the defendant, constituted error within the decision of People v. Kennedy (164 N. Y. 449). As the question of identity of the defendant was one of the principal features of the case, this testimony was important, as it bore directly upon such issue. The only point, therefore, which the case presents is whether this testimony may be disregarded without prejudice to any substantial right possessed by the defendant. By the provisions of section 542 of the Code of Criminal Pro FIRST DEPARTMENT, MAY TERM, 1902. [Vol. 72. cedure the court is authorized upon appeal to "give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties." In speaking of this section the court, in reviewing a conviction of murder in the first degree, said: "The spirit of this legislation, as is its letter, is that if the accused has had a fair trial upon his accusation, and if this court is satisfied that the conviction is sufficiently supported by competent evidence, that conviction shall stand. We are not justified by those provisions of the Code (§§ 528, 542) any more than by a true sense of justice in reversing a conviction, if the rights of the accused have not been violated and the verdict against him was not reached by error, or by ways of passion or prejudice." (People v. Hoch, 150 N. Y. 291.) In People v. Wayman (128 N. Y. 585) testimony was permitted by an accomplice of the defendant, of the contents of a letter written by the defendant, but not produced. While not material as tending to support the commission of the crime, it was material as affording support to the accomplice's testimony as to his meeting the defendant at a particular time. Cousequently it was material testimony and the point was presented by exception. The court, however, held that, in view of the strength of the case against the defendant, furnished by other testimony, the error would be disregarded within the rule announced by the Code. In the present case it can be safely said that the jury would have reached a like result if this statement had been entirely stricken from consideration by them. Defendant had in all other respects a perfectly fair trial and his rights were not in the slightest degree invaded. The crime proved was most heinous in character, and failure to punish it would constitute a gross miscarriage of justice. Under such circumstances, in view of the provisions of the Code of Criminal Procedure, we think that this error may not be said to have seriously affected any substantial right of the defendant, and that, therefore, it should be disregarded. If this view obtain, it follows that the judgment of conviction should be affirmed. O'BRIEN, J., concurred. Judgment reversed, new trial ordered. App. Div.] FIRST DEPARTMENT, MAY TERM, 1902. JEANNETTE H. FRANCIS (formerly JEANNETTE H. MARTIN), as Executrix, etc., of ISAAC P. MARTIN, deceased, Respondent, v. BENJAMIN F. WATKINS and Others, Respondents. RUBE R. FOGEL, Appellant. Mortgage foreclosure sale· - error in the diagram attached to the published notice of sale it does not excuse the purchaser from completing it. Where the notice of the sale in foreclosure, of property situated in the city of New York, correctly describes the property as being certain lots designated upon a specified map filed in the office of the registrar of the city and county of New York, and the plaintiff's attorney, in compliance with rule 15 of the rules for the regulation of Special Terms of the Supreme Court in the first department, requiring a diagram of the property to be published with the notice of the sale, furnishes a correct transcript of the map to the newspaper in which the notice of sale is to be published, the fact that through the unintentional failure of an employee of the newpaper to accurately reproduce the diagram, the published diagram apparently represents the lots as larger than they actually are, although it correctly states the length of the boundary lines, will not entitle the purchaser at the sale to be relieved from his purchase. APPEAL by Rube R. Fogel, the purchaser at the foreclosure sale in the above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of March, 1902, denying his motion to be relieved from his purchase. Louis Marshall, for the appellant. George A. Strong, for the plaintiff. Ernest P. Hoes, for the defendants Elisha M. Fulton and others. INGRAHAM, J.: The property that was sold under the judgment in this action consisted of a plot of ground in the twelfth ward of the city of New York. In the notice of sale the property to be sold was described as three certain plots, pieces or parcels of land in the city of New York, "laid down and designated on a certain map entitled 'Map of lands in the Twelfth Ward of the City of New York belonging to Isaac P. Martin, June 22, 1870, William Rumble, Surveyor,' and FIRST DEPARTMENT, MAY TERM, 1902. [Vol. 72. filed in the office of the Register of the City and County of New York, in Tin Case 719, by the numbers 3, 4 and 7, and which said plots, taken together, are bounded as follows, this is to say: On the north by the Fort Washington Depot road; on the east by the said Fort Washington Depot road and by a private road laid down on said map and by a part of plot number two laid down on said map; on the south by said plot number two, and on the west by the Boulevard Lafayette." There was annexed to this advertisement of sale what purported to be a diagram of the property to be sold, which correctly set forth the number of feet upon the lines bounding the plot; but it is claimed by the purchaser that from the diagram he formed an inaccurate idea of the size of the plot, although the number of feet was correctly stated, because the diagram was incorrect as to the direction of various lines bounding the property, and apparently represented the plot as larger than it actually was, and that in consequence of this mistake the purchaser should be relieved from his purchase. The written description of the property correctly described it. It referred to a certain map on file in the register's office which contained a correct description. It further appeared that a correct transcript of this map was furnished by the plaintiffs' attorney to the newspaper from which a diagram was to be prepared, but those connected with the newspaper in preparing the diagram annexed to the notice of sale did not quite accurately reproduce the diagram submitted to them, and that it was in consequence of this inaccuracy, without the fault of any of the parties to the action, or the referee appointed to conduct the sale, that the plaintiff was misled. This diagram was annexed to the notice of sale under the provision of rule 15 of the Rules for the regulation of the Special Terms of the Supreme Court in the First Judicial District. That rule provides: "The referee or officer making such sale shall cause to be published with the notice of sale a diagram of the property to be sold, or of which an interest therein is to be sold, showing the street or avenue upon which such property is located, its street or avenue number, if any, and specifying the number of feet to the nearest cross street or avenue. tional error, however, in such diagram, * * * * * An uninten shall not invali date the sale, nor authorize the court to relieve the purchaser, or order a new sale." |