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(178 N.Y.S.) the presence of Conners, and that there was specifically pointed out to him the proposed columns shown on said plan, and that Lee said those showed the location of columns. This is absolutely denied by both Conners and Lee; the defendant's contention being that the only papers given to Lewis were the contract and specifications, the contract drawings, and a drawing showing subsurface conditions. Lewis further says that relying on this statement as to all the piers, or practically all of them, being behind the existing curb and the showing of this wiring drawing, he prepared his figures and signed a contract and also an option which gave to Conners the right to accept his bid within the next 25 days.

On January 24, 1916, and before the exercise of the right of acceptance of the option by Conners, Lewis wrote to Conners Bros. in part as follows: “I have been giving much time during the past ten days looking into your work on Jamaica avenue, and I find that I have made you a lower price than I would have given, had I taken more time to consider it. However, I will stand by my proposal, if my understanding is correct in the following particulars based upon the information you gave me: (1) Contractor is to be paid for the width of 6 inches outside the line of excavation for each size of footing. (2) Water and gas mains will be allowed to go through footings without change; small service pipes, gas or water, house connections, etc., to be offset around the footings. (3) All footings to be behind the curb. (4) You to turn over to me your price on cement at $1.66 a gross."

Three days later, January 27, 1916, defendant wrote to plaintiff a letter stating: “In accordance with our option, we have executed and signed the contract between you and ourselves for the work on section 2, Jamaica Line, and are inclosing the same herewith.” This letter also stated in terms that it acknowledged "receipt of your favor of the 24th inst. and note the various suggestions made by you.” The defendant then acquiesced to that part of plaintiff's letter concerning payment for excavation to be made on the basis of 6 inches outside the lines of excavation for each size of footing, and also undertook to turn over price for cement at $1.66 gross per barrel. Defendant declined to acquiesce in the other two proposals contained in plaintiff's letter of January 24, 1916. This necessarily declined plaintiff's proposition that "all footings were to be behind the curb." Defendants stated that “we would not like to entertain any of the other suggestions contained in your letter, as it might raise the question of modifying the terms of the agreement, and it is better for both you and ourselves not to do so.”

There is no question that this letter of defendant was received by plaintiff, for it inclosed the contract and option to plaintiff. The latter then discovered that defendant had not signed the contract, but only the option and on January 28, 1916, plaintiff brought the contract to defendant, and it was then properly executed. Nothing was then said about modifying the contract to conform to the terms of plaintiff's letter as to “all footings to be behind the curb.” Plaintiff contends this letter was "interpolated" in the contract, and that he did not see it or read it until three or four weeks afterward. The contract consisted of seven typewritten pages on the letter head of the defendant; the option being on an additional page. I find nothing to support plaintiff's claim that defendant placed his letter with the contract, so as to cause it to be overlooked by plaintiff. The letter and contents were delivered in the ordinary course of business, as the parties customarily did. Subsequently, and on February 1, plaintiff received a letter from defendant, dated February 1, which in express terms state: “Will you kindly forward bond as mentioned in the contract, and referred to in letter of January 27, so that records may be complete on this matter.” This last letter was sent by plaintiff to Mr. Porter, agent of the bonding company, with request that bond be furnished. Mr. Porter, when called as a witness to corroborate plaintiff's theory that the contract was predicated upon the "plans showing wiring conditions,” stated that defendant's employé, Lee, stated to Lewis that these plans (plans showing wiring conditions) “are the electrical drawings, the columns are indicated, but you cannot take that for granted.”

[1, 2] Under this state of facts the plaintiff has not sustained the burden of proving the contract alleged in the complaint, and I find the plaintiff's bid was predicated on the contract of the railroad with defendant Conners Construction Company, and the drawings therein referred to and the "drawings showing existing conditions taken from data furnished from the various city departments, gas companies, and water supply companies.” The express ground of rescission having been the placing of piers and their foundations in front of existing curbs, the plaintiff can be heard on no other ground for rescission. Littlejohn v. Shaw, 159 N. Y. 188, 53 N. E. 810. Nor does the evidence sustain a finding that the placing of piers in front of existing curb increased the cost of the work. The water main east of Queens boulevard was under the sidewalk area, and the piers having been moved out in the roadway, were moved away from the location of the water main. Nor is the evidence satisfactory as to increased costs on the surface.

[3] It must therefore be held that defendant did not breach the contract. It follows from the above that plaintiff has not performed the contract on his part, and is liable over to defendant for the breach on the counterclaim pleaded. The measure of damages is the difference between the contract price and the fair and reasonable cost to the defendant of completing the work. I find the reasonable cost to defendant up to January, 1918, was $79,272.74, that there was paid to plaintiff in cash $3,901.50, that the reasonable value of asphalt to be done is $1,000, sidewalks to be done $400, work with relation to changed curbs to be done $1,875, making a total of $86,449.24, less $825 for expert opinion of engineers and $100 salvage, making $85,524.24 as total costs, and find that the cost at the contract rate fixed by plaintiff's contract $55,019.31, leaving an excess of $30,474.93, for which judgment is directed in favor of defendant against plaintiff, with costs.

Argued before JENKS, P. J., and MILLS, RICH, KELLY, and JAYCOX, JJ.

Edward M. & Paul Grout, of New York City, for appellant.

M. Carl Levine, of New York City, for appellees Conners Bros. Co., Inc., and Massachusetts Bonding & Insurance Co.

PER CURIAM. Judgment unanimously affirmed, with costs, upon the opinion of Mr. Justice Kelby at Special Term.

(189 App. Div. 96)

PEOPLE V. REDMOND.

(Supreme Court, Appellate Division, Second Department. October 3, 1919.) 1. PERJURY mol-ELEMENTS OF CRIME.

To constitute the crime of perjury, under Penal Law, § 1620, not only must the testimony be false, but the witness must know it to be false, and must testify willfully and with a criminal intent.

[Ed. Note.-For other definitions, see Words and Phrases, First and

Second Series, Perjury.] 2. PERJURY 31-AFFIDAVIT TO RETRACT TESTIMONY PRESUMPTIVELY ESTAB

LISHED FALSITY.

Under Penal Law, $ 1627, affidavit of defendant in prosecution for perjury retracting testimony given during trial presumptively established

falsity of testimony, in so far as it was contradicted by the affidavit. 3. PERJURY 31-AFFIDAVIT OF ACCUSED DENYING RECOLLECTION OF FACTS TES

TIFIED TO; EFFECT.

Atfidavit of defendant in prosecution for perjury that his testimony was based on statements made to him presumptively established that he tes

tified to that which he did not of his personal knowledge know to be true. Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(178 N.Y.S.) 4. PERJURY 12–IF WITNESS BELIEVED STATEMENTS TESTIFIED TO, EVIDENCE

NOT WILLFULLY FALSE,

If witness who testified to facts told him by others believed what had been told him, his testimony, though false, was not willfully so, and therefore not perjury, under Penal Law, $ 1620, notwithstanding section

1626. 5. PERJURY 12—WILLFUL FAILURE OF WITNESS TO REMEMBER GIVEN FACT MAY

CONSTITUTE CRIME.

A witness may be guilty of perjury in testifying that he does or does not remember a given fact, but that such testimony is willfully given is an

element of the crime. 6. PERJURY 33(2)— EVIDENCE INSUFFICIENT TO SHOW TESTIMONY WILLFULLY

FALSE,

In prosecution for perjury, verdict of guilty held against weight of evi. dence, on the ground of insufficiency of evidence to show that the testimony given was willfully false.

Jaycox, J., dissenting.

Appeal from Kings County Court.

Edward Bishop Redmond was convicted of perjury, and he appealed from an order denying his motion for new trial and in arrest of judgment. Judgment reversed, and new trial ordered. On reargument of appeal. Judgment reversed, and new trial ordered.

Argued before JENKS, P. J., and MILLS, RICH, BLACKMAR, and JAYCOX, JJ.

A. F. Van Thun, Jr., of Brooklyn, for appellant.

Ralph E. Hemstreet, Asst. Dist. Atty., of Brooklyn (Harry E. Lewis, Dist. Atty., and Harry G. Anderson, Asst. Dist. Atty., both of Brooklyn, on the brief), for the People.

BLACKMAR, J. In the June term of 1917 the judgment of conviction herein was reversed by this court for an error in the charge, and a new trial ordered. 179 App. Div. 905, 165 N. Y. Supp. 1104. At the same term, on motion of the people, the order of reversal was resettled, to recite that the reversal was on law only, as the court had not reached an agreement on the facts. 179 App. Div. 127, 165 N. Y. Supp. 821. The people appealed to the Court of Appeals, and that court, in January, 1919, decided that an appeal to it would not lie unless it affirmatively appeared in the body of the order that the Appellate Division had exercised its power to review the facts and that, being satisfied with the judgment in that respect, the reversal was ordered for errors of law only. The appeal was dismissed, but without prejudice to a new application to the Appellate Division for the amendment and resettlement of the order, by stating in it its decision upon the weight of evidence. 225 N. Y. 206, 121 N. E. 785. Such application was thereupon made, and, as two of the justices who sat when the court passed on the case were no longer members of the court, a reargument of the whole case was ordered. It therefore became and is incumbent on us to consider both the facts and the law. The defendant was indicted and convicted for perjury. In an action For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes for partition pending in the Supreme Court, there was an issue of the legitimacy of Beatrice Barker, a defendant in that action. That issue in turn depended on whether her mother, now named Estelle Dorgeloh, was married to one Alphonsus Murtha, or Murtagh, at the time of her marriage to Charles Barker, the father of the said Beatrice. An issue of fact was framed for trial by jury as follows:

"Was the defendant Estelle Dorgeloh, and the mother of the defendant, Beatrice Arabelle Barker, then known as Estelle Whitney, married on or about May 1, 1897, to Alphonsus Murtha or Murtagh?”.

The issue came on for trial before a court and jury. Complete proof was offered of a ceremonial marriage before a minister of the gospel on the date specified. The fact was not contested, as defendant Dorgeloh claimed that the ceremony did not effect a marriage. That contention was overruled by the presiding justice, who excluded evidence offered to show that the ceremony was not intended to effect a marriage, and directed the jury to bring in a verdict answering the question in the affirmative. This the jury did after protest, resulting from evident disinclination to render a verdict that tended to bastardize the innocent defendant Beatrice.

The defendant Redmond, called as a witness for defendant, testified that on the 1st of May, 1897, at his mother's house in Degraw street, Brooklyn, he met defendant Dorgeloh, then known as Estelle Whitney, and Alphonsus Murtha; that Estelle Whitney then and there said that she had been married to Murtha; that on the 30th of Novem-. ber, 1914, he accompanied the counsel for the defendant to Somerville, N. J.; that there he saw Murtha, who was the same man that he saw in his mother's house on the 1st day of May, 1897. Upon this testimony he was indicted and convicted for the crime of perjury.

In considering the weight of the evidence it is well to keep in mind certain established facts. On the 1st day of May, 1897, Estelle Whitney was 15 years of age and the defendant, Redmond, 11. She was then staying temporarily at the house of Redmond's mother, and it is in evidence, and not denied, that the intimacy of the girl and the little boy was so great that they slept together in the same bed. A ceremonial marriage was on that day performed between the girl, Estelle, and Murtha, and after the ceremony Estelle did return to the home of defendant's mother. It seems to me, therefore, that it is in the highest degree probable that she did speak of the marriage, at which an aunt of defendant was a witness, so that it was no secret. An analysis of the indictment, the evidence taken at the trial, and the charge of the court show that the issues litigated were whether perjury had been committed in three particulars—i. e., in testifying that the witness remembered seeing Murtha at his mother's home on May 1, 1897; that Estelle Whitney was with Murtha, and there stated that she had been married to him; and that 17 years afterwards defendant recognized Murtha as the same man he saw in 1897. The real question in the case is whether the evidence justified the jury in finding as facts all the elements of the Crime in the testimony of defendant that Estelle Whitney said on May 1, 1897, in the home of defendant's mother, that she had been married to Murtha; for the testimony that Mur

(178 N.Y.S.) tha was present, or that defendant recognized him, at Somerville, N. J., is incidental matter not material to the issue.

[1] To constitute the crime of perjury, not only must the testimony be false, but the witness must know it to be false, and must testify willfully. Section 1620, Penal Law (Consol. Laws, c. 40). The evidence that the statement was not made is that of Estelle Dorgeloh only. The contest over the infant Beatrice's legitimacy was exceedingly bitter, and the mother, Estelle, appears to have been in a state of almost frantic excitement over it. One expression of hers on the witness stand indicates her state of mind-i. e.:

“Defend my child's honor? To the end of the earth. It is my duty."

She was incensed with every one on the other side of the civil action, among whom she counted the defendant and the counsel. The question whether she uttered the words on May 1, 1897, that she had been married to Murtha, was not definitely and clearly presented to the jury; and if it could have been dissociated from the emotional elements in the case, and left to the jury, I doubt if they would have found that she did not use them, upon her evidence alone, in view of the probability that she did, and of the contradictory testimony of the mother and aunt of the defendant and the defendant himself. The evidence that undoubtedly had the greatest weight in securing conviction is directed to the question whether the defendant, Redmond, who was 29 years of age at the time he gave the testimony for which he was convicted, and 11 years of age on May 1, 1897, really testified from memory or from suggestion. It seems to be assumed, and I think erroneously, that if his testimony was from suggestion, it was knowingly and willfully false. Estelle Dorgeloh and her counsel went to see Redmond, and Mrs. Dorgeloh, playing upon his sympathy for the infant Beatrice, whose legitimacy was in question, induced him to go to the counsel's office, where he was subjected to cross-examination, both by the witness Dorgeloh and counsel, and during its progress an affidavit was dictated to stenographers, which, after it was written out, Redmond signed, and which was produced against him at the trial.

[2] As the purpose of the interview was to obtain a retraction of his evidence, it may fairly be assumed that the affidavit, formulated by a hostile lawyer, states the substance of what he said, without mitigation in his favor. In so far as the affidavit contradicted the testimony, it presumptively established its falsity. Section 1627, Penal Law. The affidavit did not contradict the facts that the defendant testified to, but in artificial language disclaimed recollection, or, as the words are twice used, "independent recollection," of the occurrences regarding which he testified. He states that he was told these facts by Clifford Barker and his mother, but not that he did not believe them. The effect of the affidavit is that his testimony was based on statements made to him by his mother and Clifford Barker; in other words, that he testified as within his own knowledge to facts that he did not know to be true. Section 1626, Penal Law, provides :

"An unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false.”

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