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proportionate benefit of the improvement to fixed price, without specifying that the blocks each lot. People ex rel. Scott v. Pitt, 169 should be from plaintiff's quarry or any other N. Y. 521, 62 N. E. 662, 58 L. R. A. 372. In

specified quarry, and without requiring the

blocks to be manufactured in the future from making this assessment, however, the as any specified character of granite. The order sessors appear to have acted upon an erro was accepted and defendant refused to accept neous principle in ignoring the radical dif

the blocks tendered. Held, that the contract,

as alleged in the complaint, was a contract for ference in the benefit conferred upon the

the purchase and sale of merchandise. west side property, which was already sup [Ed. Note.For cases in point, see vol. 43, plied with an adequate sewer paid for solely Cent. Dig. Sales, $ 22.] out of an assessment on the west side, and 2. SAME-BREACHI-MEASURE OF DAMAGES. the benefit conferred upon the east side prop

If merchandise had a general market value erty, which was wholly without any sewer

at the time and place of delivery called for by

the contract, on failure to deliver, the measure until the present improvement. The adop of damages was the difference between the martion of the foot-frontage rule under these cir ket value and the contract price, rendering evicumstances, as applicable to the property on

dence that the article had a market value ad

missible. both sides of the street, is manifestly incon

[Ed. Note. For cases in point, see vol. 43, sistent with the command of the statute that

Cent.. Dig. Sales, $$ 1175, 1194.] the amount to be raised for a local improve

Appeal from Supreme Court, Appellate ment of this character in Utica is to be as

Division, First Department. sessed upon the lands benefited in proportion

Action by the Haddam Granite Company to such benefit. The specific facts alleged in

against the Brooklyn Heights Railroad Comthe petition and not denied in the return of

pany. From a judgment of the Appellate the board of assessors show that the benefit

Division (95 N. Y. Supp. 1131) affirming a to the west side property was insignificant

judgment entered on the verdict in favor as compared with the benefit to the lands on

of plaintiff, defendant appeals. Reversed. the east side of South Hamilton street; so that the application of the same rule to

John L. Wells, for appellant. John Ewen, the premises on both sides involved the

for respondent. adoption of a principle in respect to the assessment as a whole which failed to fulfill HAIGHT, J. This action was brought to the requirement of proportionate equality

recover damages alleged to have been sus. contemplated by the law. Hence the action tained by the plaintiff by reason of the failof the assessors is subject to review here

ure to take and pay for 400,000 granite payeven under the doctrine of the case chiefly

ing blocks, under an alleged contract between relied upon by the respondents. O'Reilley v.

the plaintiff and defendant providing that City of Kingston, 114 N. Y. 439, 448, 21 N.

defendant would take 500,000 granite blocks E. 1004. The circumstances and situation of

from the plaintiff and pay for the same the lands on the different sides of a city

the sum of $62 per thousand. street may be such, and in the present case

Upon the trial it was conceded that 100,000 clearly are such, as to make the adoption of

granite blocks had been taken by the defendthe foot-frontage rule in this particular in ant and paid for, so that the controversy stance inconsistent with the observance of arises with reference to the remaining 400,the proportionate benefit principle which it

000 blocks. The question brought up for was the statutory duty of the assessors to

our determination has reference to the measobserve.

ure of damages adopted by the Trial Court. These views lead to a reversal of the or

The contention on the part of the plaintiff is

that the contract called for goods to be manuder of the Appellate Division and the annulment of the determination of the board of

factured and delivered at specified times; that assessors of the city of Utica, with costs to

such goods had no general market value; appellants in both courts.

and therefore that the measure of damages

was the difference between the cost of proCULLEN, C. J., and EDWARD T. BART duction and delivery and the price agreed LETT, HAIGHT, VANN, WERNER, and upon. On behalf of the defendant, the conCHASE, JJ., concur.

tention is that there was a standard market

value for granite paving blocks of the diOrdered accordingly.

mensions called for, and that the measure

of damages, if any, was the difference be(186 N. Y. 247)

tween the market value and the contract HADDAM GRANITE CO. V. BROOKLYN

price. The plaintiff, in support of its conHEIGHTS R. CO.

tention, called its treasurer as a witness and

asked the question as to "whether or not (Court of Appeals of New York. Oct. 23, 1906.)

there is a general market for that sort of 1. SALES-CONSTRUCTION OF CONTRACT. The complaint, in an action for breach of

blocks,” referring to the paving blocks called contract, alleged that defendant entered into a for by the specifications. To this the decontract with plaintiff whereby the latter agreed fendant's counsel interposed an objection as to furnish defendant, and defendant agreed to

incompetent and immaterial, but the obtake, a specified number of paving blocks at a specified price. Defendant ordered a specified

jection was overruled and the witness was number of granite blocks of sizes specified, for a i permitted to answer, under the exception of

the defendant's counsel, in effect that there sand. It will be observed that there is nothwas not. The plaintiff then, under the ob ing in the complaint that charges that the jection and exception of the defendant's blocks were to be manufactured in the fucounsel, proceeded to show the cost of pro ture, or that they were to be taken from any duction and delivery at the place required particular quarry. They were simply to be by the contract, for the purpose of establish granite paving blocks. ing the measure of damages which it contend It appears from the evidence that the ed it was entitled to have adopted. The de plaintiff did have a quarry, and that there fendant called as a witness on its behalf the had been previous negotiations between the purchasing agent of the defendant company, parties, and at least two different contracts who testified that he was familiar with the had been drawn and submitted for approval; market generally of granite paving blocks but under date of August 14, 1903, a letter of the character and size described in the was written on behalf of the defendant specifications, and then he was asked if he company to the treasurer of the plaintiff had made inquiry and bid for blocks of this company, in which it is stated that "the concharacter in the open market during that tract signed by this company on the second time, alluding to the period referred to in day of April, 1903, which was never executed the contract. The question was objected to by you, and which you have this day surby the plaintiff's counsel as immaterial and rendered, will no longer be considered as an irrelevant. The court sustained the objection order for granite blocks to be furnished by and the defendant took an exception. The your quarry." Apparently this disposed of defendant's counsel then asked the ques the negotiations that had theretofore taken tion as to whether there was a market value place as to any order for granite from the in Brooklyn for these granite blocks. There plaintiff's quarry. Then the defendant's was the same objection, ruling, and excep letter proceeded to make an independent tion. In submitting the case to the jury the order for "five hundred thousand granite Trial Court charged that the measure of blocks, subject to inspection as to quality and damages was the difference between the cost size, the size is length 8 to 12, width 312 to of production and the delivery at the defend- 412, depth 6 inches to 7 inches, one-half of ant's dock and the price agreed upon, to the above to be delivered on or before April which the defendant excepted. The ques 1st, 1904, and the balance on or before June tion, therefore, as to the measure of damages 1st, 1904, any blocks undelivered as above which the plaintiff is entitled to recover, specified to be received only at the option of is squarely presented for our determination. this company. The delivery of these blocks

It is apparent that the plaintiff's counsel to be made on such of this company's docks considered the question as to whether there in Brooklyn, N. Y., as we will from time to was' a general market value for granite time designate, the price to be $62 per thoupaving blocks one of fact, to be determined sand delivered on dock payable within thirty from the evidence, inasmuch as he was care days after delivery.” This order was acceptful to prove by the treasurer of the plaintiff ed by the plaintiff company. that there was no such market value, and It will be observed that there is nothing yet, when the defendant undertook to prove in the new order specifying that the granite that there was such a market value, its should be from the plaintiff's quarry or any counsel was prohibited from so doing by an other specified quarry. It merely calls for objection of the plaintiff's counsel and the granite blocks of the sizes specified to be ruling of the Trial Court in his favor. If delivered upon the company's docks in Brookit was competent and proper for the plaintiff | lyn. Neither is there any provision in the to show that such blocks had no market order requiring the blocks to be manufacvalue, it would seem that the defendant tured in the future from any specified charought to have been accorded the privilege of acter of granite. Indeed, there is nothing in showing that the plaintiff's witness was mis its provisions that would prohibit the plaintaken with reference to the fact, and that tiff from going into the market or to any there was a general market value for such granite quarry owner and purchasing the property. But, passing this question for blocks called for by the contract and fulfill the present, the contention on behalf of the its part of the contract by delivering the plaintiff is to the effect that it sold goods blocks so purchased to the defendant at the to be manufactured and delivered in the fu docks specified. We therefore conclude,

, ture; that it was the owner of a granite reading the contract in connection with the quarry, from which it quarried the blocks allegation of the complaint, that it was simand shipped them to the place designated in ply a contract for purchase and sale of an the contract. Upon referring to the com article of merchandise, and that, if it had plaint, we find that the allegation is that the a general market value at the time and at defendant entered into an agreement where the place of delivery called for by the conby the plaintiff undertook and agreed to tract, the measure of damages would be the furnish the defendant and the defendant difference between the market value and the agreed to take from the plaintiff 500,000 contract price. Todd v. Gamble, 148 N. Y. granite paving blocks and agreed to pay 382, 42 N E. 982, 52 L. R. A. 225. therefor at the rate or price of $62 per thou We consequently conclude that the court

erred in excluding the evidence offered on behalf of the defendant to show that there was a standard market value, and for that reason the judgment should be reversed, and a new trial granted, with costs to abide the event.

CULLEN, C. J., and EDWARD T. BARTLETT, VANN, HISCOCK, and CHASE, JJ., concur. GRAY, J., absent,

Judgment reversed, etc.

(186 N. Y. 164)

PEOPLE ex rel. HUMMEL V. REARDON. (Court of Appeals of New York. Oct. 9, 1906.) 1. CRIMINAL LAW-STATUTES-APPEAL.

The Code of Criminal Procedure supplants all prior methods of review, and entirely and exclusively provides for and measures defendant's rights on appeal from a conviction, so far as such rights are subject to statutory control. 2. BAIL-APPEAL-REASONABLE DOUBT-CERTIFICATE-STAY OF PROCEEDINGS-STATUTES.

Code, Cr. Proc. $ 555, authorizes admission to bail, after conviction of a crime not punishable with death, of a defendant who has appealed, where there is a stay of proceedings, but not otherwise. Section 556 declares that if the appeal is from the judgment imposing a fine only, the undertaking shall be for the payment of the fine, and, if the judgment imposes imprisonment, that appellant will surrender himself, if the judgment be affirmed or modified or the appeal be dismissed, or, in either case, if the certificate of reasonable doubt be vacated. Section 527 declares that an appeal to the Appellate Division stays the execution of the judgment, on the filing of a certificate of reasonable doubt, but not otherwise, and section 529 authorizes a stay of execution until the determination of an application for a certificate of reasonable doubt. Held, that where a defendant has been convicted of an offense mot punishable with death, and has been sentenced to pay a fine and to imprisonment, he is not entitled to bail after appeal pending an application for a certificate of reasonable doubt, though he has obtained a stay pending such application.

[Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Bail, $ 145.] 3. FIABEAS CORPUS-APPEAL-DETERMINATION -BAIL PENDING APPEAL FROM CONVICTION.

Where, at the time relator was released on habeas corpus after obtaining bail pending the determination of his application for a certificate of reasonable doubt, he was not entitled to bail, the order directing his discharge would not be affirmed on appeal because, pending such appeal, a certificate of reasonable doubt was granted on which he was entitled to bail.

O'Brien, J., dissenting.

Appeal from Superior Court, Appellate Division, Second Department.

Habeas corpus by the people, on relation of Abraham H. Hummel, against Edward J. Reardon, a peace officer of the city of New York to obtain relator's discharge from arrest pending an application for certificate of reasonable doubt. From an order of the Appellate Division (98 N. Y. Supp. 399), affirmiņg a final order directing relator's discharge, the people appeal. Reversed.

Wm. Travers Jerome, Dist. Atty. (Robert C. Taylor, of counsel), for appellant. John B. Stanchfield, for respondent.

HISCOCK, J. This appeal involves the sole question whether a person convicted of a crime not punishable with death may be admitted to bail, pending the determination of an application for a certificate of reasonable doubt. The relator was convicted of the crime of conspiracy in New York county and sentenced to pay a fine of $500, and to imprisonment for one year in the penitentiary, and was thereupon committed to the city prison. Upon the same day an order to show cause was granted why a certificate of reasonable doubt should not be granted and a stay of execution directed meantime, and, at the same time an order was made admitting the defendant to bail until the hearing of said application. The relator having thereupon been rearrested upon the theory that the allowance of bail pending the hearing of said motion was without authority and illegal, habeas corpus proceedings were instituted, resulting in his discharge from such custody. This order, upon appeal, was duly affirmed, but, as I think, erroneously so.

The determination of the question presented for our consideration requires an examination of several sections of the Code of Criminal Procedure.

Section 527, entitled "Stay of Proceedings on Appeal,” provides that “An appeal to the Appellate Division of the Supreme Court from a judgment of conviction stays the execution of the judgment * upon filing, with the notice of appeal, a certificate of the judge who presided at the trial, or of a justice of the Supreme Court, that in his opinion, there is reasonable doubt whether the judgment should stand, but not otherwise."

Section 529 provides: “The certificate (of reasonable doubt) mentioned in the last two sections (527 and 529) cannot, however, be granted upon an appeal on a conviction of felony or misdemeanor until such notice as the judge may prescribe has been given to the district attorney of the county where the conviction was had, of the application for the certificate, accompanied by a formal specification in writing of the grounds upon which the application is based, but the judge may stay the execution of the judgment until the determination of such application." Said section also provides that when application for such certificate has been once denied another application shall not be made; also, that in case of specified delay by the defendant in bringing on for argument his appeal application may be made to have said certificate of reasonable doubt vacated.

Section 555 provides that "after the conviction of a crime not punishable with death, a defendant, who has appealed and when there is a stay of proceedings, but not otherwise, may be admitted to bail: (1) As a matter of right, when the appeal is from a judgment imposing a fine only; (2) as a mat. ter of discretion, in all other cases."

Section 556 regulates the nature of bail able to note especially certain provisions in after conviction and upon appeal, and to its the sections already referred to, concerning terms I shall refer more in detail hereafter. appeals as expressive of the requirement for

There is no doubt but that the judge grant greater vigilance in granting stays and ading the order to show cause why a certificate mitting to bail. Bail can be received only of reasonable doubt should not be granted, when a stay of proceedings has been granthad the power under section 529 to stay ed, and a permanent, substantial stay of execution of the judgment of conviction proceedings can be secured only when a against relator until the determination of certificate of reasonable doubt has been such application. It may also be granted granted, after notice to the people through that section 555 read literally and by itself their representative officer, upon due specis broad enough to cover the admission to ification of alleged errors, and even this cerbail of a defendant pending an application tificate and resulting stay may be vacated for a certificate when there is a stay of pro if the defendant delays the hearing of his ceedings granted as provided in section 529. appeal. This line of provisions, beyond quesBut I believe that a broader and more com tion, prevents a defendant who has been conprehensive view, not only of section 555, but victed and committed to the custody of the of other related sections, and of the general law from regaining his liberty upon bail trend of criminal procedure upon appeal without notice to the district attorney, and from conviction, will justify the conclusion without a public record by some judge of that said section does not contemplate admis his deliberate opinion that allegations of ersion to bail under such a temporary and in ror raise a reasonable doubt whether the cidental stay of proceedings, but relates to conviction should stand. Incidentally and admission to bail upon an appeal where a temporarily a stay may be granted pending more permanent stay has been secured this application without any notice. Some of through the granting of a certificate of rea the evil consequences are obvious which sonable doubt, as provided in section 527. might result from ex parte and inadvertent Before statutory enactment to that end action in admitting convicted persons to bail a person convicted of a criminal offense had during this incidental stay without any nono right of appeal. Under the Revised Stat tice to the district attorney, and I think that utes there were available the two methods it is in accordance with the general policy of reviewing a conviction, either by certio evidenced by all of these sections to conrari before judgment or by writ of error strue section 555, giving the right to admit after judgment. Upon the proceeding by to bail pending a stay of proceedings, as recertiorari the defendant might have stay of ferring to the substantial, important stay of judgment and be admitted to bail. Provision proceedings provided for by section 527 as was also made whereby upon review by writ the result of a certificate of reasonable of error there might be a stay of proceed- doubt, and not as meaning and referring ings and the defendant admitted to bail to the temporary ex parte stay allowed through the medium of habeas corpus pro by section 529, pending the decision of the ceedings. Without considering these

these pro

application for such certificate. In the forceedings in detail, it is to be noted as bear mer case a judge has decided, after argument ing upon subsequent legislation and making and consideration, that there is doubt about plain the tendency toward greater caution in the correctness of the conviction, and a reagranting the applications of convicted per son is established for accepting bail and resons for stays and admission to bail, and lieving from imprisonment pending appeal. thus indirectly bearing upon the specific In the latter case no certificate of doubt has question at issue, that no notice to the been granted, and there is no reason for people was required of the application for assuming that the judgment of conviction is either writ or for stays or admission to bail erroneous and that the defendant should not of convicted persons. And an examination be held in custody under it. So much for of the judicial records and literature of those the reasoning which seems to rest upon printimes, and of the suggestions made in con ciples of general policy. It seems to me that nection with the recommendation of adoption the details of the sections relating to bail of a Code of Criminal Procedure, leaves no confirm that reasoning. Section 556, which doubt that those former methods of review alone provides for the nature of the bail to were not only cumbersome, but that often be taken under section 555 when there is a times they were accompanied by undue delay stay of proceedings, requires bail from the and laxity in granting stays with resulting defendant as follows: "(1) If the appeal be admission to bail.

from a judgment imposing a fine only, on The Code of Criminal Procedure was the undertaking of bail, that he will pay the adopted and concededly it supplants the prior same, or such part of it as the appellate methods of review, and entirely and ex court may direct, if the judgment be affirmed clusively provides for and measures the de or modified or the appeal dismissed, or the fendant's rights upon appeal from a convic. certificate of reasonable doubt be vacated as tion, so far as those rights are subject to provided in section five hundred and twenty. statutory control. Here, again, it is desir nine. (2) If judgment of imprisonment have

been given, that he will surrender himself in reality, and that not many persons convicted execution of the judgment, upon its being of criminal offenses and who have good affirmed or modified, or upon the appeal be grounds for appeal will be treated with uning dismissed, or if the certificate of rea due severity. We may anticipate that a sonable doubt be vacated as aforesaid.” judge before whom has been conducted a

It is apparent at once that the undertak criminal trial will be able to determine with ing above provided for is adapted to a re fair accuracy whether a conviction rests upon lease upon bail pending final disposition of debatable grounds, and that if it does a certhe appeal, and is not at all adapted to tificate will be granted forthwith and the desuch release under the temporary stay pend

fendant saved from imprisonment pending ing application for a certificate of reasonable the determination of his appeal. A judge, doubt. The section assumes that a certificate other than the one before whom the trial of reasonable doubt has been granted, and has occurred, has the power, by prescribing therefore relates to bail under a stay fol short notice to the district attorney, to comlowing such certificate, and not to bail under pel a prompt determination of the application the temporary stay preceding such certificate. for a certificate. Remembering always that It is said that this clause was incorporated the statute by granting any right of review into the section by amendment and, there has secured to convicted persons a favor fore, is not significant as indicating the pur which they otherwise would not enjoy, it pose of the statute. If we should grant this will not be too much if the construction adoptexplanation to be more effective than I really ed, under the safeguards mentioned, does rethink it is, we still find the other provisions sult in treating a judgment of conviction obof the section equally requiring an undertak tained by due process, legal and entitled to ing binding the defendant to answer a final enforcement even to the extent of taking the disposition of his appeal, and not an un defendant into custody unless and until some favorable disposition of his application for duly constituted authority shall certify that a certificate. In fact the learned Appellate reasonable grounds exist for questioning its Division ultimately seems to concede that correctness. We can hardly close our minds there is no provision for an undertaking to to the fact that at the present time the unibe executed by a defendant upon release upon versal trend in public discussion of our sysbail pending his application for a certificate. tem of criminal procedure is in the direction But it is said that if the statute has pro of criticising its leniency and tardiness wherevided that he may thus be released he will by criminals entirely escape or unduly postnot be deprived of this right by reason of pone the day of punishment, and the conthis omission; that it is a casus omissus, and struction which I have endeavored to justify not important. This seems to me to be a will close one avenue through which persons begging of the question. The statute has duly convicted, by aid of ex parte statements provided for one stay of proceedings follow and allegations of error, may escape, teming a certificate that there is merit to the porarily, enforcement of the judgment of defendant's appeal, which is a very sub conviction which has been rendered against stantial right, and which ordinarily will con them. The fact has not been overlooked that tinue until the final disposition of the appeal. a somewhat lengthy discussion has been given It has provided for another stay which is to a question which so far as this case is temporary and incidental to an application. concerned has become academic. We have Then it has provided that a defendant may be been assured, however, and readily have been released upon bail when there is a stay of able to see that the question here presented proceedings, and, in prescribing the condi is an important one and liable to arise with tions of the undertaking to be executed, much frequency, and under such circumadapts it entirely to a release under the stances it has been deemed wise to express former stay, and not at all to one under the our views in the case now presented for guidlatter. Under these circumstances, in at ance in the future. tempting to determine whether the Legisla The argument has been advanced that, indeture intended that a defendant should be pendent of the merits of the underlying quesreleased upon bail under both stays, or simply tion, the order releasing the relator was under the former and substantial one, it properly affirmed by the Appellate Division, seems to me that full provision for a form because, at the time said latter court made of bail under such former one and an ab its decision, a certificate of reasonable doubt solute omission to provide for bail under the had been granted entitling the defendant to latter one is not to be regarded as a matter be released upon bail, and that such a fact of inadvertence, but as clearly indicating the could be taken into account as justifying the intention that the provisions for release under original order. I do not find in the statute a stay do not apply to the temporary one. relating to habeas corpus any provision, or

Finally, it is urged that such interpretation in the law relating thereto any established and conclusion may result in the temporary principle, which seems to warrant the view confinement of one who has a meritorious that an order in a statutory proceeding erappeal, and will be harsh and unjust. I be roneous upon the facts existing at the time lieve that this objection will prove to be it is made may be affirmed upon appeal berather based upon a fear than sustained by cause meantime some step has been taken

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