FALSE PRETENSES. N. Y. COURT OF APPEALS. Therasson, plf. in error, v. The People, defts. in error. Decided Sept. 28, 1880. terially influenced his action. This may be shown by direct interrogation of the prosecutor, or, in the absence of direct proof, may be inferred from the facts and circumstances, provided that the inference is one which could be legitimately drawn therefrom. Proof of the falsity of the pretense to defend ant's knowledge is not to be considered on the question whether the prosecutor acted upon or was influenced by it or not. a materially controlling and operating cause leading to the act of the party deceived, and that it was not necessary to ask the prosecutrix the direct question whether or not she was influenced or induced to sign the satisfaction piece by the repreTo justify a conviction for false pretenses it must be proved that the prosecutor parted sentation proved, and that in the with his property or signed the written absence of such a direct question instrument by reason of some of the preten- that fact might be found by the jury ses laid in the indictment, or, if not solely if the surrounding circumstances by reason of such pretenses, that they majustified it. The judge then added that when the party states that such a representation was made and he acted upon it and the object had been accomplished, and the jury saw as a result that he was cheated and defrauded, and they found evidence of an intent to cheat and defraud, and that the representation made was false, from these and surThe plaintiff in error was indicted, rounding circumstances they would tried and convicted for having by be justified in concluding that the false and fraudulent pretenses ob- party was induced to act upon such tained a satisfaction of a mortgage representation. On the conclusion from Z, who was one of his clients. of the charge, defendant's counsel Z. was examined on the trial as a stated that he understood the court witness for the people, but was not directly asked whether in signing the satisfaction piece she relied upon the statement made by the defendant. The character of the representations proved, and the circumstances under which the satisfaction piece was executed would have justified, although it could not be said to have absolutely required, a finding that it was executed in reliance upon the representations of defendant. The judge, after ex- material influence over the mind of plaining to the jury the other elements of the offense, stated that the representations should not only be false and made with intent to cheat and defraud, but that it should be to charge that the jury, in determining whether the prosecutrix relied upon the alleged or proven false pretense, or whether it exerted any material influence over her mind, were at liberty to consider the evidence showing, if it did show it to their minds, the fraudulent intent of defendant, and asked the court to charge that although the jury should find the necessary fraudulent intent, in determining whether it exerted a the prosecutrix, they had no right to consider the question on the evidence as to the fraudulent intent or as to the false representation. The judge in response charged that the jury had a right to consider all the firming judgment of conviction, reevidence in the case bearing upon versed. the subject, directly or indirectly. Held, error; that it must be assumed that she was ignorant of the falsity of the pretense when made, and of the fraudulent intent in making it, and the prosecution was bound to show that they existed, but the question whether the prosecutrix was influenced by the representation was a distinct one, having no necessary connection with the others, and proof of its falsity to defendant's knowledge sheds no light upon the point whether the prosecutrix acted upon it. Defendant was entitled under the circumstances to the explicit instruction of the court requested. Opinion by Andrews, J. All concur, except Miller, J., in result, and Folger. Ch. J., and Rapallo, J., not voting. MASTER AND SERVANT. N. Y. COURT OF APPEALS. A superintendent of a factory, although having power to employ men, or represent the master in other respects, is, in the management of the machinery, a fellow servant of the other operatives. One B. was placed in charge of defendant's works as general superintendent and manager, having foremen under him. While plaintiff was at work about an engine he was injured by steam carelessly let on by B. Held, That B. only represented defendant in respect of those duties which defendant had confided to him; that his act in letting on the steam was that of a mere operative, for which defendant would not be liable to a fellow servant of B. In order to justify a conviction upon a trial of an indictment for false pretenses it must be proved that the prosecutor parted with his property or signed the written instrument, as the case may be, by reason of some of the pretenses laid in the indictment, or, if not solely This action was brought to reby reason of such pretenses, that cover damages for injuries alleged they materially influenced his ac- to have been received through detion. In the absence of such evi- fendant's negligence. At the time dence the essential averment in the the injuries were received plaintiff indictment would not be supported. was a laborer in defendant's employ 11 Wend., 557; 14 id., 546. It is at his iron works. He was at work not necessary that this fact should about an engine, and one B., also in be shown by direct proof. It is defendant's employ, carelessly let competent to establish it by direct on the steam, and in consequence interrogation of the prosecutor, 13 thereof the injuries were caused. Wend., 87, but in the absence of Defendant's iron works were in direct proof it may be inferred by Oneida County. He lived at New the jury from the facts and circum- York and carried on an extensive stances, provided the inference is business there, and visited his works one that could be legitimately drawn about once a month. A large numtherefrom. ber of men were employed there. Judgment of General Term, af- B. was his nephew and lived near A. J. Vanderpoel, for applt. Nicholas E. Kernan, for respt. Held, That B. was a fellow servant of plaintiff, and defendant was not liable for the injuries to plaintiff arising from B.'s negligence. The liability of a master to his servant for injuries sustained while does not depend upon the doctrine of respondeat superior. If the employé whose negligence caused the injury is a fellow servant of the one injured, the doctrine does not apply. Irish R., 11 C. L., 353. the works, in a house belonging to defendant, and the latter usually, when he visited his works, made B.'s house his home. B. was a practical engineer. When he first went to the works he was placed in charge of them, and was general superintendent and manager, having foremen under him. Some time be- in his employ by the wrongful or fore the accident to plaintiff, B. had negligent act of another employé, testified that one M. was made foreman by defendant. Neither B. nor plaintiff were called as witnesses, although near at hand. It was claimed that M. superseded B. in the practical management of the works, yet in the temporary absence of M. A servant assumes all risk of inB. was in control, as he was after juries incident to and occurring in M. left defendant's employ without, the course of his employment, exso far as appeared, any new delega- cept such as are the acts of the tion of authority. Substantially all master himself, or of a breach by defendant's correspondence in refer- him of some term, express or imence to his works was carried on with plied, of the contract of service, or B., and he was the medium of com- of the duty of the master to his munication between defendant and servants, viz., to employ competent others connected with the works fellow servants, provide safe machinwhen defendant was absent. B. em- ery, &c.; but for the mere negliployed and discharged laborers, gence of one employé the master is bought and paid for material and not responsible to another engaged paid the laborers, and reported to in the same general service. The defendant whatever of importance master's liability does not depend he noticed about the works. Prior to the accident printed rules and regulations were posted in the works, to be observed by the workmen. A superintendent of a factory, alThese were signed by defendant as though having power to employ proprietor, M., as foreman, and B. men, or represent the master in as "business and financial man." other respects, is in the manageThere was proof tending to show ment of the machinery a fellow serthat the workmen understood that vant of the other operatives. 6 B. was the head man at the works, Cush., 75; Wood's Master and Serand that, when he chose to, he or- vant, 431, 436, 437, 438; 53 N. Y., dered the men about their work and 549, 533. had the general oversight of the work. Vol. 10.-No. 22* upon the grade or rank of the employé whose negligence causes the injury. Also held, That although B. may, as financial agent or superintendent, overseer or manager, have represented defendant and stood in his Such a liability is not provable in bankruptcy and a discharge in bankruptcy is not avail. able as a defense. place, he did so only in respect to Affirming S. C., 9 W. Dig., 495. those duties which defendant had confided to him as such agent, &c. This was a question of law. The court was requested to charge that B., in letting on the steam, was not acting in defendant's place. This request was refused. This action was brought by plaintiff as receiver of the Central Savings Bank against defendants, who were trustees of the bank, to recover damages alleged to have been caused it by their misconduct Held, error; that B.'s act in let- as such trustees. It appeared that ting on the steam was that of a the bank had been in existence mere operative, for which defendant about six years, doing a losing busiwould be liable to a stranger, but ness. Its deposits had not innot to a fellow servant of B. As creased. It had occupied hired between master and servant, it was rooms and changed its location the servant's and not the master's once without any benefit. In 1873, duty to operate the machinery. its receipts had fallen behind and Judgment of General Term, af- its expenses exceeded its income firming judgment on verdict for plaintiff, reversed. Opinion by Rapallo, J.; Folger, Ch. J., Andrews and Miller, JJ., concur. Earl, J., reads for affirmance; Danforth and Finch, JJ., concur. TRUSTEES OF SAVINGS N. Y. COURT OF APPEALS. several thousand dollars. It owed depositors $70,000 and its assets were in an unsatisfactory shape to meet any sudden or unusual call, there being but $13,000 in cash on hand, and the balance being mostly in mortgages on real estate. The trustees voted to purchase a lot and erect a banking house thereon ; the only reason put on record in the minutes being to better the financial condition of the bank. They purchased four lots for $74,500 of which $1,000 was to be paid down, $9,000 on the first day of condition the trustees voted to purchase May then next,and gave a mortgage land and erect a banking house at an expense for $64,000, payable May 1, 1875, $100,000, which was done. When plaintiff and payment to be extended to May was appointed receiver the building and lot 1, 1877, provided a building should without unavoidable delay be erected on one of the lots worth not less than $25,000. The purchase was made and the cash paid and four mortgages executed, the one on the lot on which the bank was to be erected being for $30,500. Upon While a savings bank was in an insolvent with about $1,000 worth of assets constituted the entire property of the bank and the building and lot were swept away on foreclosure. Held, a case of improvidence and reckless extravagance and that the trustees were liable for the damages caused thereby; that an action to recover such damages is triable by jury; that all the trustees need not be made parties defendant. this lot, in the spring of 1875, the tain any action it could have maintrustees contracted for a bank tained; that the trustees could be building to be erected at a cost of treated as agents of the bank, 27 $27,000. The three other lots were Eng. L and Eq., 158; 19 Me., 455; 48 disposed of, and when the reciver Penn. St., 29; 38 Barb., 181; 4 Den., was appointed the lot on which the 299; 35 Mo., 13, and for any misbuilding was with the building and feasance or nonfeasance, causing other assets which produced less damage to the bank, they were rethan $1,000 constituted the whole sponsible to it. property of the bank. The lot and building were subsequently swept away by a mortgage foreclosure. E. Ellery Anderson, for applts. Also held, That this being an action at law it was not necessary that all the trustees should be joined as parties defendant. 22 Session Cas., 2d series, 475 (Scotch); Barb. Two of the defendants filed peti ruptcy after this action was commenced and were discharged before judgment. Held, That this was a case of im-on Parties, 203. providence and reckless and unreasonable extravagance in which tions for their discharge in bankthe trustees failed in that measure of reasonable care and skill which the law required of them and they are liable for the damages caused Held, that such discharges were thereby. 1 Edw. Ch., 513, 543; 1 R. not available as a defense in this I., 312; 2 Atkyns 405; 3 Sandf., 545. action; that the claim herein was Also held, That the trustees were purely for unliquidated damages not relieved from liability by the fact occasioned by a tort; that such that their charter was amended in a claim was not provable in 1868, chap. 294, empowered them bankruptcy, and therefore was not to purchase a lot for a banking house discharged. U. S. R. S., 2d ed., §§ requisite for the transaction of its 5115, 5119, 5067-5071; 2 Abb., N. business." S., 216; 2 Den., 73; 6 Hill, 250; 2 Biss., 71; 2 Ben., 508; 2 N. B. R., 77. This case was moved for trial at the Circuit and before the jury was empanelled defendants claimed that the case should be tried at Special Term. The court ordered that the trial proceed. At the close of the evidence defendants' counsel moved for a dismissal of the complaint on the ground that it was not a proper case to be tried before a jury and should be tried before the equity branch of the court. The motion was denied. Held, no error; that the receiver represents the bank and can main Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Earl J. All concur. RECORDING ACT. ASSIGN- N. Y. COURT OF APPEALS. Bryan, admr'x, applt., v. Judson, respt. Decided Sept. 21, 1880. The record of an assignment of mortgage is not constructive notice to subsequent pur |