pretenses is made a species of larceny by 528 of the Penal Code, the the common form of indictment for larceny is sufficient, without alleging any false pretense or representation.

P. Chamberlain, Jr., for applt. J. W. Taylor, Dist. Atty., for respts.

Held, That under an indictment for larceny, alleging that defendant unlawfully and feloniously did steal, take and carry away, defendant may properly be convicted of the commission of a larceny by means of false pretenses under § 528 of the Penal Code.

Section 275, Code Crim. Pro., provides that the indictment must contain a plain and concise statement of the act constituting the crime without unnecessary repetition.

Whilst the indictment does not allege the fraudulent representation or pretense, it does charge that defendant unlawfully and feloniously did steal, etc. In other words, it charges the act, but does not charge the means by which the act was accomplished. A similar question has been considered by the courts in reference to indictments charging the crime of murder under the statute prescribing different degrees of that crime. See 37 N. Y., 413; 80 id., 500; 97 id., 62.

In Phelps v. People, 72 N. Y., 350, it was held a sufficient averment of the crime of larceny in the precise words of the statute.

In People v. Willett, 102 N. Y., 251, Finch, J., observed that " 528 of the Penal Code defines with

considerable detail what acts shall constitute larceny and what intent shall characterize the crime, and in the end provides that he who with such intent does any such acts, steals any such property, is guilty of larceny. The word steal is thus defined by the statute itself as covering all the prescribed details, and its use in the indictment, which charges the taking to have been felonious or with a criminal intent, sufficiently includes the particular intent to constitute a larceny."

In Virginia the statute makes the obtaining of money or other property by any false pretense larceny; and the courts hold that an indictment for the offense may be either in the form of indictment for larceny at common law, or by charging the specific facts which the act declares shall be deemed larceny. 20 Gratt., 716; 9 id., 734.

These authorities appear to sustain respondents' position, and incline us to hold that the indictment is sufficient, and that there was no variance between the proof and the indictment.

In People v. Moore, 37 Hun, 84, this question was not considered by the court.

We are aware that a different rule prevails in California. 18 Cal., 337; 19 id., 600; 12 id., 291. But in view of the authorities of our own State, we think that these cases cannot be followed. Judgment and conviction affirmed.

Opinion by Haight, J.; Smith, P.J., Barker and Bradley, JJ.,

concur.

RECEIVER.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

her sole name; that the taxes, assessments, improvements, etc., have been borne by the joint contributions of the parties; that

Decided Oct., 1886.

An interlocutory judgment was entered, declaring that plaintiff is equitably entitled to an interest in certain premises, the legal title to which defendant wrongfully acquired in her sole name; and decreeing an account to be taken of all the moneys contributed by each of the parties to the payment of the purchase price, and that the interest of each be adjudged in proportion to the amount so contributed. Defendant being insolvent and the premises being incumbered, Held, a proper case for the appointment of a receiver to collect the rents of that portion of the premises which had been leased. Appeal from order denying plaintiff's motion for the appointment of a receiver.

Action to obtain a judgment declaring plaintiff's interest in certain real estate, etc. A trial was had resulting in an interlocutory judgment, in which the following facts were found: Defendant proposed to plaintiff to buy the premises in suit for him and herself and desired his co-operation in paying for the same; he assented to the proposal and agreed to contribute the earnings of himself and family; defendant purchased the premises for $2,800, and paid $300 of her own money, and plaintiff from and after the time of such purchase contributed to the payment of the agreed portion of such purchase money his earnings and the entire wages of his daughters; that defendant wrongfully acquired the title to the premises in

Vol. 25-No. 9.

plaintiff were made in reliance upon defendant's representations that the purchase was upon their joint account, and in pursuance of the agreement before mentioned. It was adjudged that plaintiff is equitably entitled to an interest in the premises, that an account be taken of all the moneys contributed by each of the parties on account of the premises, and that the precise interest of each be adjudged in proportion to the amount so contributed. It was admitted that in May, 1881, defendant gave a mortgage of $1,000 on the premises, and in 1884 she conveyed a portion of the premises, and in the following year she executed a mortgage for $2,863. The parties reside upon the premises, upon which there are other buildings which are rented for the sum of $48 per month. It was charged in the moving papers that defendant is insolvent, and this charge was not denied by her in the opposing affidavits.

John C. Hubbell, for applt.
John Laughlin, for respt.

Held, That under the circumstances disclosed a proper case was presented for the appointment of a receiver. It has been adjudged and determined that plaintiff is a part owner of the premises and is as much entitled to the rents as defendant herself. If, as it is claimed, she is insolvent and is collecting the rents and expending

the same for her own benefit, plaintiff may suffer prejudice in consequence.

Order reversed and motion to appoint a receiver granted of that portion of the real estate which at the time of the motion was rented, but not of that portion occupied by plaintiff and defendant as a residence, and the case remitted to the Special Term to name a proper person to act as receiver and fix the amount of security to be given by him.

Opinion by Haight, J.; Smith, P.J., Barker and Bradley, JJ.,

concur.

PRACTICE.

N. Y. COURT OF APPEALS. Cranston, admrx., respt., v. The

until he has made up his mind beyond all question that he is necessarily right and the others are necessarily wrong." To this statement defendant's counsel excepted. The jury thereupon brought in a verdict for plaintiff.

Edgar L. Fursman, for applt. R. A. Parmenter, for respt. Held, Error; that it was incumbent upon plaintiff, who held the affirmative of the issue, to satisfy the jury by a preponderance of evidence of the facts upon which her right to recover depended. If she failed to do so defendant was entitled to a verdict. The jurors who were not satisfied by the evidence of the truth of plaintiff's allegations were justified in refusing for that reason to find a verdict in her favor, although they might

Decided Dec. 17, 1886. After a failure to agree in a civil case the court sent the jury back with the instruction that "no juror ought to remain entirely firm in his conviction one way or the other until he has made up his mind

beyond all question that he is necessarily right and the others necessarily wrong." Held, Error.

This action was brought to recover damages for the negligent killing of plaintiff's intestate. After the jury had retired to consider their verdict, they came into court, and one of them stated that there was no probability of their agreeing. The court replied: "I can't take any such statement as that. Gentlemen, you must get together upon a matter of this kind." He then added: "No juror ought to remain entirely firm in his own. conviction one way or another,

beyond all question that they were necessarily right and that those who were in favor of finding a verdict for plaintiff were necessarily wrong. To sustain the instruction would be to cast upon defendant in a civil action a burden quite as heavy as that which rests upon the prosecution in a criminal case. If the evidence was so clear as to lead to a conclusion with the degree of certainty required by the charge, there was nothing to submit to the jury, and it was the duty of the court either to direct a verdict or to nonsuit plaintiff.

Judgment of General Term, affirming judgment on verdict for plaintiff, reversed, and new trial ordered.

Opinion by Rapallo, J. All con

cur.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Gilbert M. Vandervoort v. Mary D. S. Dewey.

Decided Oct., 1886.

A lease was made to defendant and her husband for life, with a reservation that the lessor might terminate after the husband's decease by paying to the wife "the sum of dollars." Plaintiff acquired title under foreclosure of a mortgage given by the lessor, and brought ejectment against defendant, whose husband was deceased. Plaintiff offered to prove that the clause quoted was inserted by the draughtsman merely for the purpose of expressing a nominal consideration, etc. Held, That the condition or reservation being defective by reason of the omission to express the consideration, the whole was void for uncertainty,

Motion for new trial on exceptions ordered to be heard at the General Term in the first instance.

Ejectment. In Feb., 1876, defendant's husband was the owner of certain premises, and both joined in a conveyance thereof to their son, A. D., who, on the same day, executed to them a lease, in consideration of such conveyance, for the term of their natural lives, reserving, however, the right to terminate the same at any time after the decease of defendant's husband, when the lessor has an opportunity of selling the premises, "by paying to said Mary D. S. Dewey the sum of lars." This lease was duly recorded. In October, 1882, the said A. D. executed a mortgage upon said premises, under which plaintiff derived his title by purchase at foreclosure sale. Defendant's hus

dol

band was deceased before suit brought, and she was in possession of the land. Plaintiff offered to prove that the clause in the lease relating to the payment of money was inserted by the draughtsman without the knowledge of either party to the lease; that it was so inserted for the purpose of providing for a nominal consideration only; that at the time of the execution of the lease defendant disclaimed any right to compensation for the surrender of the lease, and that she has at divers times since made such disclaimer. This offer was refused by the court and exception taken.

W. H. Adams, for plff.

Smith & Hamlin, for deft.

HAIGHT, J.-The defect in the lease consists in the omission to insert in the blank the amount to be paid to defendant to terminate the lease at the decease of Jedediah Dewey. This defect is a patent and not a latent ambiguity, and consequently cannot be corrected by parol evidence. 2 Pars. on Con., 557, 563; 1 Keyes, 486.

If the question was one of construction as to the meaning of the contract, and the language was such as to be capable of two or more constructions, parol evidence might be competent; there is nothing in the provisions of the contract that gives us the least intimation as to the number of dollars that it was intended to insert therein, but an omission which can only be supplied by the court making for the parties a contract which they have failed to make for themselves; this the court has no power to do.

It therefore follows that the offer to give parol evidence by plaintiff's counsel was properly excluded, and this clause of the lease is void for uncertainty; but it does not follow that the entire lease is void. The demise was to defendant during her lifetime; the consideration was the deed in which she had joined with her husband to her son, the lessor. This part of the lease is separate and independent, and clearly expresses the intention of the parties. The defective clause pertains to the condition upon which the lease may be terminated, but this clause fails to fully express the condition and is void for uncertainty.

Motion for new trial denied, and judgment ordered for defendant upon the nonsuit.

Barker and Bradley, JJ., con

N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

The People, respts., v. John E. O'Sullivan, applt.

Decided Nov., 1886.

Upon a criminal trial evidence that defendant committed another crime on another occasion is not competent.

Appeal from judgment of Court of Oyer and Terminer, convicting defendant of the crime of rape, and from an order of said court denying defendant's application for a new trial.

Defendant was convicted of the crime of rape. Upon the trial the complainant was allowed to testi

fy, under objection to its competency, that on another occasion some four days prior to the offense charged in the indictment defendant made an assault upon her with intent to ravish her.

Ceylon H. Lewis, Dist. Atty., for respts.

John C. Hunt, for applt.

Held, Error. The admission of such evidence is attempted to be justified upon the theory that it was competent to show defendant's purpose and motive in the act complained of. But the purpose and motive of defendant in the crime charged, if proved, was not the subject of doubt. The evidence admitted tended to establish another and different crime from that charged in the indictment. From such evidence, if believed, the jury would more readily infer defendant's guilt of the offense for which he was tried.

In any event such evidence was likely to prejudice the jury seriously and strengthen the chances of a conviction. The evidence of another crime on a former occasion was not competent evidence against defendant upon this trial, and the admission of such evidence was an error fatal to the conviction. 55 N. Y., 81; 56 id., 591: 76 id., 291; 32 id., 141; 17 W. Dig., 383; Roscoe Crim. Ev., 88, 810; 93 N. Y., 470, 473; 6 Lans., 462. There are exceptions to the general rule which are pointed out in the authorities cited; one is where guilty knowledge is an ingredient of the crime, as in cases for passing counterfeit money or receiving stolen property. Another