Page images
PDF
EPUB

and exact payment therefor. He contends that he should have commissions, not only upon the amount of the personal property left by the decedent, but upon the amount voluntarily paid by him to the legatees, as well as the debts and expenses of the administration of the estate. He also asks for commissions upon the real estate.

The basis for the claim of commissions is found in section 2753 of the Code of Civil Procedure. It reads as follows:

"The value of any real or personal property, and the increment thereof, received, distributed or delivered, shall be considered as money in making computation of commissions."

[4] The real estate has not been delivered, nor distributed, nor has it been converted into money; therefore there could be no commissions upon the real estate. Matter of Wanninger, 120 App. Div. 273, 105 N. Y. Supp. 4; Matter of Hardenbrook, 23 Misc. Rep. 528, 52 N. Y. Supp. 845; Matter of McGlynn, 41 Misc. Rep. 156, 83 N. Y. Supp. 975.

[5] The legacies not having been expressly charged upon the real estate, and it not being the intention of the decedent so to do, the legatees were only entitled to be paid pro rata. Evidently the executor, the husband of the decedent, desired to carry into effect the wishes of his wife, and did contribute from his own pocket the difference between what would have gone to the legatees on the theory of an abatement and the amount the will gave.

[6] I cannot hold, with the contention of the appellant, that a conversion of the real estate resulted, and that by reason thereof the executor is entitled to commissions upon the entire amount of the estate. I think the report of the appraiser is a proper one, when it gave commissions to the executor on the amount of the entire personal property of the decedent, out of which personal property, in the orderly distribution of the estate, he should pay all expenses and debts; the balance thereof to be paid to the legatees pro rata. For any contribution that he has made over and above this rightful procedure, he cannot secure commissions upon.

The report of the appraiser is affirmed.

(178 N.Y.S.) (189 App. Div. 699)

FINEGAN V. H. O. & A. I. PIERCY CONTRACTING CO. et al.

(Supreme Court, Appellate Division, First Department. December 5, 1919.)

MASTER AND SERVANT 301(4)-HIRER OF TRUCK WITH CHAUFFEUR LIABLE FOR

NEGLIGENT DRIVING.

P. not having been engaged as an independent contractor to deliver goods for D., but having let its truck and driver to D. with which D. could make its own deliveries, D. alone was the driver's superior, responsible to a third person for injury from the driver's negligence in making a delivery, even if the ultimate liability as between D. and P. was, under their contract, on P.; that liability not inuring to the benefit of the injured person.

Smith, J., dissenting in part.

Appeal from Trial Term, New York County.

Action by Christine Finegan, administratrix, against the H. C. & A. I. Piercy Contracting Company and the A. De Pinna Company, Incorporated. There was judgment on a verdict for plaintiff, motions to set aside the verdict and for new trial were denied, and defendants appeal. Reversed in part, and affirmed in part.

Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and MERRELL, JJ.

Levy & Levy, of New York City (Elias V. Levy, of New York City, of counsel), for appellant Piercy Contracting Co.

William Dike Reed, of New York City (Murray G. Jenkins, of New York City, of counsel), for appellant A. De Pinna Co.

Sidney L. Teven, of New York City, for respondent.

PAGE, J. The action was to recover damages for personal injuries resulting from the alleged negligence of the driver of an automobile truck. The truck in question was owned and the chauffeur was employed by the defendant H. C. & A. I. Piercy Contracting Company. The agreement whereby the motor truck was hired by the defendant De Pinna Company provided :

“Second. The employés to be furnished, supplied, and paid for by the party of the first part, H. C. & A. I. Piercy Contracting Company, as hereinafter set forth, shall be under the control and orders of the party of the first part, H. C. & A. I. Piercy Contracting Company, it being understood and hereby intended to establish the fact that said employés are working in the business of the party of the first part, H. C. & A. I. Piercy Contracting Company, and that the relation of master and servant shall not exist as between them and the party of the second part, A. De Pinna Company, Incorporated, to the end and in the event of accident or damages caused by the negligence of said employé or employés, no claim by reason thereof shall be made against the party of the second part, A. De Pinna Company, Incorporated.”

The contract further specifically provided that, in the event of legal liability attaching to the A. De Pinna Company, Incorporated, through any act of the chauffeurs supplied by the H. C. & A. I. Piercy Contracting Company, the H. C. & A. I. Piercy Contracting Company should be held to indemnify the A. De Pinna Company, Incorporated, for its said loss. It was further agreed between the parties that indemnity insurance should be taken out by the H. C. & A. I. Piercy Contracting Company indemnifying the A. De Pinna Company, Incorporated, against liability for damage or loss caused by the operation of these automobiles.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

178 N.Y.S.-50

The chauffeurs were paid by the H. C. & A. I. Piercy Contracting Company. They reported morning and night to the H. C. & A. I. Piercy Contracting Company's garage. They received their orders from the H. C. & A. I. Piercy Contracting Company. The right to hire them and discharge them was exclusively reserved to the H. C. & A. I. Piercy Contracting Company.

When the chauffeur arrived with the truck at the place of business of the De Pinna Company, he was subject to the directions and orders of the De Pinna Company in making delivery of its goods. While in the course of making such a delivery the accident happened to the plaintiff's decedent. The sole question presented on this appeal is the liability of each defendant, each claiming that the other was the employer, and therefore liable. The court held as a matter of law that they were both liable, and sent the case to the jury upon the questions of negligence, contributory negligence, and damages,

In our opinion, the defendant the H. C. & A. I. Piercy Contracting Company could not be held liable for the injury. Whatever may be the ultimate liability between the De Pinna Company and the Piercy Company as a result of the contract, that liability does not inure to the benefit of the injured party. The questions to be determined are: Under whose direction and control was the chauffeur? and in whose business was he engaged at the time? Recourse to the contract can be had to determine this question. From that it appears that the De Pinna Company hired the truck and driver from the Piercy Company; that the De Pinna Company used the truck and chauffeur to make delivery of its goods, and gave directions as to how those deliveries were to be made. It was therefore liable for a negligent act of the chauffeur while engaged in its business and subject to its direction and control. The Piercy Company was not an independent contractor. It did not agree to deliver goods for the De Pinna Company. It merely let to the De Pinna Company the truck and chauffeur with which the De Pinna Company could make its own deliveries. Howard v. Ludwig, 171 N. Y. 507, 64 N. E. 172; Hartell v. Simonson & Sons Co., 218 N. Y. 345, 113 N. E. 255; De Perri v. Motor Haulage Co., 185 App. Div. 384, 173 N. Y. Supp. 189. Where the concurrent negligent acts of two persons contribute to the injury, they may be held jointly liable. In this case the injury was occasioned by the negligent act of one person, and the question is simply who was the superior who was bound to respond for that person's act. Clearly it was the De Pinna Company.

The judgment against the defendant H. C. & A. I. Piercy Contracting Company is therefore reversed, with costs, and the complaint as

PEOPLE. W T.S.) ont against thorder f

Sup. Ct.)
PEOPLE V. VOLLERO

787 (178 N.Y.S.) to it dismissed, with costs. The judgment against the A. De Pinna Company is affirmed, with costs to the respondent. Order filed.

CLARKE, P. J., and DOWLING and MERRELL, JJ., concur.

SMITH, J., dissents as to the H. C. & A. I. Piercy Contracting Company.

(108 Misc. Rep. 635)

PEOPLE v. VOLLERO. (Supreme Court, Special Term, Kings County. September, 1919.) 1. CRIMINAL LAW Om 1023(13)-RULING ON MOTION FOR NEW TRIAL FINAL AND

UNAPPEALABLE.

On a motion for new trial in a prosecution for homicide, after affirmance of a conviction by the Court of Appeals by a divided court and without opinion, under Code Cr. Proc. § 542, the decision of a justice of the Supreme Court on defendant's motion for a new trial on the ground of newly discovered evidence is final and unappealable, either by defend

ant or by the people. 2. CRIMINAL LAW Ow59(1)-WHAT CONSTITUTES AN “ACCOMPLICE.”

To be an "accomplice" one must be so connected with a crime that at common law he might have been convicted, either as a principal or as an accessory before the fact.

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

Second Series, Accomplice.] 3. HOMICIDE 30(1, 3)-ACCOMPLICE LIABLE AS PRINCIPAL.

If a conspiracy was entered into to murder six persons, and three or them were murdered by different members of the conspiracy, all the conspirators were principals in the commission of each murder, within Penal Law, § 2, and thereunder those aiding or abetting in their commission were "connected with the commission" of all the crimes, whether, present or absent when each crime was committed, and became accessories before the fact, and liable as "principals,” though not actually participating

in any of the homicides. 4. CRIMINAL LAW Om511(10)—ACCOMPLICE TESTIMONY AS CORROBORATION.

In a prosecution for murder growing out of an alleged conspiracy to . kill six men, three of whom were murdered, the testimony of an accomplice to such crime was insufficient to corroborate that of a confessed ac

complice, under Code Cr. Proc. § 399. 5. CRIMINAL LAW Om510_CORROBORATION OF ACCOMPLICE TESTIMONY.

Code Cr. Proc. $ 399, requiring corroboration of accomplice testimony to warrant a conviction, extends to proceedings before the grand jury which

found the indictment, in view of section 258. 6. CRIMINAL LAW Om511(10)-CORROBORATION OF ACCOMPLICE TESTIMONY BY

ANOTHER ACCOMPLICE.

Corroboration of testimony of an accomplice, necessary under Code Or. Proc. 399, to a conviction, is subject to the exception that the fact that if, on trial of an indictment, two accomplices testify as to defendant's guilt, instead of one, is not a corroboration, and in such a case it requires the same amount of other evidence to connect the defendant with the

crime as if but one accomplice testified, in order to establish his guilt. 7. CRIMINAL LAW Om511(10)-CORROBORATION OF ACCOMPLICE TESTIMONY.

Corroboration by independent evidence is not dispensed with, where several accomplices testify against accused, as the accomplices are not deemed to corroborate each other, so that, where one was not only an accomplice in fact, but on the testimony of a confessed accomplice, was an

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

accomplice at law, his testimony was wholly ineffective to corroborate

the testimony of the confessed accomplice. 8. CRIMINAL LAW Om9 15(1)-NEW TRIAL ON ACCOUNT OF NEWLY DISCOVERED EVI

DENCE.

In prosecution for murder growing out of a conspiracy of one gang to kill six members of another gang, where a witness for prosecution, in corroboration of a confessed accomplice, was an accomplice, but was not so treated by parties or by court, and was subsequently indicted, a motion for new trial under Code Cr. Proc. $ 465, subd. 7, for newly discovered evi. dence, would be granted, as a different verdict would be probable after

his relation to the offense became known, in view of the trial proceedings. 9. CRIMINAL LAW C 949(1)-SUFFICIENCY OF MOTION FOR NEW TRIAL.

Defendant's motion for a new trial, after his conviction of murder in the first degree had been affirmed by the Court of Appeals by a divided court and without opinion, under Code Cr. Proc. & 542, based upon section 465, subd. 7, authorizing a new trial where defendant on another trial can produce evidence which would probably change the result after a showing of due diligence, held sufficient in form to authorize the grant of a new trial.

Alessandrio Vollero moves for new trial after a conviction of murder in the first degree. Motion granted.

Edward J. Reilly, of Brooklyn, for the motion.

Harry E. Lewis, Dist. Atty., of Brooklyn (Herbert N. Warbasse and Ralph E. Hemstreet, both of Brooklyn, of counsel), opposed.

BENEDICT, J. The defendant, Alessandrio Vollero, was convicted by a jury in this court of the crime of murder in the first degree. Upon appeal the Court of Appeals affirmed the conviction by a divided court and without opinion, under section 542 of the Code of Criminal Procedure; the section providing that the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties. 226 N. Y. 587, 123 N. E. 883. The defendant has moved this court at Special Term for a new trial under section 465 of the Code of Criminal Procedure upon the ground of newly discovered evidence. Although the motion was heard on June 7th last, the brief of the district attorney was, with the court's concurrence, not submitted until July 5th, and the great length of the printed record, comprising more than 1,000 pages, and the importance of the questions involved in the motion, both to the defendant and to the public, have precluded an earlier determination.

Whatever doubt this court may entertain as to the legality of the original conviction must remain unexpressed, in deference to the judgment of the Court of Appeals that any technical errors or defects upon the trial as disclosed by the record did not affect the defendant's substantial rights. The only question which now requires solution is that raised by the defendant's motion for a new trial upon the grounds which the statute expressly authorizes, as set forth in the section above referred to. That section, in subdivision 7, provides that the court has power to grant a new trial"where it is made to appear, by affidavit, that upon another trial the defendant can produce evidence such as, if before received, would probably have

For other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

« PreviousContinue »