proportionate benefit of the improvement to each lot. People ex rel. Scott v. Pitt, 169 N. Y. 521, 62 N. E. 662, 58 L. R. A. 372. In making this assessment, however, the assessors appear to have acted upon an erroneous principle in ignoring the radical difference in the benefit conferred upon the west side property, which was already supplied with an adequate sewer paid for solely out of an assessment on the west side, and the benefit conferred upon the east side property, which was wholly without any sewer until the present improvement. The adoption of the foot-frontage rule under these circumstances, as applicable to the property on both sides of the street, is manifestly inconsistent with the command of the statute that the amount to be raised for a local improvement of this character in Utica is to be assessed upon the lands benefited in proportion to such benefit. The specific facts alleged in the petition and not denied in the return of the board of assessors show that the benefit to the west side property was insignificant as compared with the benefit to the lands on the east side of South Hamilton street; so that the application of the same rule to the premises on both sides involved the adoption of a principle in respect to the assessment as a whole which failed to fulfill the requirement of proportionate equality contemplated by the law. Hence the action of the assessors is subject to review here even under the doctrine of the case chiefly relied upon by the respondents. O'Reilley v. City of Kingston, 114 N. Y. 439, 448, 21 N. E. 1004. The circumstances and situation of the lands on the different sides of a city street may be such, and in the present case clearly are such, as to make the adoption of the foot-frontage rule in this particular instance inconsistent with the observance of the proportionate benefit principle which it was the statutory duty of the assessors to observe.

These views lead to a reversal of the order of the Appellate Division and the annulment of the determination of the board of assessors of the city of Utica, with costs to appellants in both courts.

CULLEN, C. J., and EDWARD T. BARTLETT, HAIGHT, VANN, WERNER, and CHASE, JJ., concur.

Ordered accordingly.

(186 N. Y. 247)

HADDAM GRANITE CO. v. BROOKLYN HEIGHTS R. CO.

(Court of Appeals of New York. Oct. 23, 1906.) 1. SALES-CONSTRUCTION OF CONTRACT.

The complaint, in an action for breach of contract, alleged that defendant entered into a contract with plaintiff whereby the latter agreed to furnish defendant, and defendant agreed to take, a specified number of paving blocks at a specified price. Defendant ordered a specified number of granite blocks of sizes specified, for a

fixed price, without specifying that the blocks should be from plaintiff's quarry or any other specified quarry, and without requiring the blocks to be manufactured in the future from any specified character of granite. The order was accepted and defendant refused to accept the blocks tendered. Held, that the contract, as alleged in the complaint, was a contract for the purchase and sale of merchandise.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, § 22.]

2. SAME-BREACII-MEASURE OF DAMAGES.

If merchandise had a general market value at the time and place of delivery called for by the_contract, on failure to deliver, the measure of damages was the difference between the market value and the contract price, rendering evidence that the article had a market value admissible.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, §§ 1175, 1194.]

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Haddam Granite Company against the Brooklyn Heights Railroad Company. From a judgment of the Appellate Division (95 N. Y. Supp. 1131) affirming a judgment entered on the verdict in favor of plaintiff, defendant appeals. Reversed.

John L. Wells, for appellant. John Ewen, for respondent.

HAIGHT, J. This action was brought to recover damages alleged to have been sustained by the plaintiff by reason of the failure to take and pay for 400,000 granite paving blocks, under an alleged contract between the plaintiff and defendant providing that defendant would take 500,000 granite blocks from the plaintiff and pay for the same the sum of $62 per thousand.

Upon the trial it was conceded that 100,000 granite blocks had been taken by the defendant and paid for, so that the controversy arises with reference to the remaining 400,000 blocks.

The question brought up for our determination has reference to the measure of damages adopted by the Trial Court. The contention on the part of the plaintiff is that the contract called for goods to be manufactured and delivered at specified times; that such goods had no general market value; and therefore that the measure of damages was the difference between the cost of production and delivery and the price agreed upon. On behalf of the defendant, the contention is that there was a standard market value for granite paving blocks of the dimensions called for, and that the measure of damages, if any, was the difference between the market value and the contract price. The plaintiff, in support of its contention, called its treasurer as a witness and asked the question as to "whether or not there is a general market for that sort of blocks," referring to the paving blocks called for by the specifications. To this the defendant's counsel interposed an objection as incompetent and immaterial, but the objection was overruled and the witness was permitted to answer, under the exception of

the defendant's counsel, in effect that there was not. The plaintiff then, under the objection and exception of the defendant's counsel, proceeded to show the cost of production and delivery at the place required by the contract, for the purpose of establishing the measure of damages which it contended it was entitled to have adopted. The defendant called as a witness on its behalf the purchasing agent of the defendant company, who testified that he was familiar with the market generally of granite paving blocks of the character and size described in the specifications, and then he was asked if he had made inquiry and bid for blocks of this character in the open market during that time, alluding to the period referred to in the contract. The question was objected to by the plaintiff's counsel as immaterial and irrelevant. The court sustained the objection and the defendant took an exception. The defendant's counsel then asked the question as to whether there was a market value in Brooklyn for these granite blocks. There was the same objection, ruling, and exception. In submitting the case to the jury the Trial Court charged that the measure of damages was the difference between the cost of production and the delivery at the defendant's dock and the price agreed upon, to which the defendant excepted. The question, therefore, as to the measure of damages which the plaintiff is entitled to recover, is squarely presented for our determination.

It is apparent that the plaintiff's counsel considered the question as to whether there was a general market value for granite paving blocks one of fact, to be determined from the evidence, inasmuch as he was careful to prove by the treasurer of the plaintiff that there was no such market value, and yet, when the defendant undertook to prove that there was such a market value, its counsel was prohibited from so doing by an objection of the plaintiff's counsel and the ruling of the Trial Court in his favor. If it was competent and proper for the plaintiff to show that such blocks had no market value, it would seem that the defendant ought to have been accorded the privilege of showing that the plaintiff's witness was mistaken with reference to the fact, and that there was a general market value for such property. But, passing this question for the present, the contention on behalf of the plaintiff is to the effect that it sold goods to be manufactured and delivered in the future; that it was the owner of a granite quarry, from which it quarried the blocks and shipped them to the place designated in the contract. Upon referring to the complaint, we find that the allegation is that the defendant entered into an agreement whereby the plaintiff undertook and agreed to furnish the defendant and the defendant agreed to take from the plaintiff 500,000 granite paving blocks and agreed to pay therefor at the rate or price of $62 per thou

sand. It will be observed that there is nothing in the complaint that charges that the blocks were to be manufactured in the future, or that they were to be taken from any particular quarry. They were simply to be granite paving blocks.

It appears from the evidence that the plaintiff did have a quarry, and that there had been previous negotiations between the parties, and at least two different contracts had been drawn and submitted for approval; but under date of August 14, 1903, a letter was written on behalf of the defendant company to the treasurer of the plaintiff company, in which it is stated that "the contract signed by this company on the second day of April, 1903, which was never executed by you, and which you have this day surrendered, will no longer be considered as an order for granite blocks to be furnished by your quarry." Apparently this disposed of the negotiations that had theretofore taken place as to any order for granite from the plaintiff's quarry. Then the defendant's letter proceeded to make an independent order for "five hundred thousand granite blocks, subject to inspection as to quality and size, the size is length 8 to 12, width 31⁄2 to 42, depth 6 inches to 7 inches, one-half of the above to be delivered on or before April 1st, 1904, and the balance on or before June 1st, 1904, any blocks undelivered as above specified to be received only at the option of this company. The delivery of these blocks to be made on such of this company's docks in Brooklyn, N. Y., as we will from time to time designate, the price to be $62 per thousand delivered on dock payable within thirty days after delivery." This order was accepted by the plaintiff company.

It will be observed that there is nothing in the new order specifying that the granite should be from the plaintiff's quarry or any other specified quarry. It merely calls for granite blocks of the sizes specified to be delivered upon the company's docks in Brooklyn. Neither is there any provision in the order requiring the blocks to be manufactured in the future from any specified character of granite. Indeed, there is nothing in its provisions that would prohibit the plaintiff from going into the market or to any granite quarry owner and purchasing the blocks called for by the contract and fulfill its part of the contract by delivering the blocks so purchased to the defendant at the docks specified. We therefore conclude, reading the contract in connection with the allegation of the complaint, that it was simply a contract for purchase and sale of an article of merchandise, and that, if it had a general market value at the time and at the place of delivery called for by the contract, the measure of damages would be the difference between the market value and the contract price. Todd v. Gamble, 148 N. Y. 382, 42 N. E. 982, 52 L. R. A. 225.

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 not 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. HABEAS 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), affirming 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." 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.

Said

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 after conviction and upon appeal, and to its terms I shall refer more in detail hereafter.

There is no doubt but that the judge granting the order to show cause why a certificate of reasonable doubt should not be granted, had the power under section 529 to stay execution of the judgment of conviction against relator until the determination of such application. It may also be granted that section 555 read literally and by itself is broad enough to cover the admission to bail of a defendant pending an application for a certificate when there is a stay of proceedings granted as provided in section 529. But I believe that a broader and more comprehensive view, not only of section 555, but of other related sections, and of the general trend of criminal procedure upon appeal from conviction, will justify the conclusion that said section does not contemplate admission to bail under such a temporary and incidental stay of proceedings, but relates to admission to bail upon an appeal where a more permanent stay has been secured through the granting of a certificate of reasonable doubt, as provided in section 527. Before statutory enactment to that end a person convicted of a criminal offense had no right of appeal. Under the Revised Statutes there were available the two methods of reviewing a conviction, either by certiorari before judgment or by writ of error after judgment. Upon the proceeding by certiorari the defendant might have stay of judgment and be admitted to bail. Provision was also made whereby upon review by writ of error there might be a stay of proceedings and the defendant admitted to bail through the medium of habeas corpus proceedings. Without considering these proceedings in detail, it is to be noted as bearing upon subsequent legislation and making plain the tendency toward greater caution in granting the applications of convicted persons for stays and admission to bail, and thus indirectly bearing upon the specific question at issue, that no notice to the people was required of the application for either writ or for stays or admission to bail of convicted persons. And an examination of the judicial records and literature of those times, and of the suggestions made in connection with the recommendation of adoption of a Code of Criminal Procedure, leaves no doubt that those former methods of review were not only cumbersome, but that oftentimes they were accompanied by undue delay and laxity in granting stays with resulting admission to bail.

The Code of Criminal Procedure adopted and concededly it supplants the prior methods of review, and entirely and exclusively provides for and measures the defendant's rights upon appeal from a convic tion, so far as those rights are subject to statutory control. Here, again, it is desir

able to note especially certain provisions in the sections already referred to, concerning appeals as expressive of the requirement for greater vigilance in granting stays and admitting to bail. Bail can be received only when a stay of proceedings has been granted, and a permanent, substantial stay of proceedings can be secured only when a certificate of reasonable doubt has been granted, after notice to the people through their representative officer, upon due specification of alleged errors, and even this certificate and resulting stay may be vacated if the defendant delays the hearing of his appeal. This line of provisions, beyond question, prevents a defendant who has been convicted and committed to the custody of the law from regaining his liberty upon bail without notice to the district attorney, and without a public record by some judge of his deliberate opinion that allegations of error raise a reasonable doubt whether the conviction should stand. Incidentally and temporarily a stay may be granted pending this application without any notice. Some of the evil consequences are obvious which might result from ex parte and inadvertent action in admitting convicted persons to bail during this incidental stay without any notice to the district attorney, and I think that it is in accordance with the general policy evidenced by all of these sections to construe section 555, giving the right to admit to bail pending a stay of proceedings, as referring to the substantial, important stay of proceedings provided for by section 527 as the result of a certificate of reasonable doubt, and not as meaning and referring to the temporary ex parte stay allowed by section 529, pending the decision of the application for such certificate. In the former case a judge has decided, after argument and consideration, that there is doubt about the correctness of the conviction, and a reason is established for accepting bail and relieving from imprisonment pending appeal. In the latter case no certificate of doubt has been granted, and there is no reason for assuming that the judgment of conviction is erroneous and that the defendant should not be held in custody under it. So much for the reasoning which seems to rest upon principles of general policy. It seems to me that the details of the sections relating to bail confirm that reasoning. Section 556, which alone provides for the nature of the bail to be taken under section 555 when there is a stay of proceedings, requires bail from the defendant as follows: "(1) If the appeal be from a judgment imposing a fine only, on the undertaking of bail, that he will pay the same, or such part of it as the appellate court may direct, if the judgment be affirmed or modified or the appeal dismissed, or the certificate of reasonable doubt be vacated as provided in section five hundred and twentynine. (2) If judgment of imprisonment have

been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or if the certificate of reasonable doubt be vacated as aforesaid."

It is apparent at once that the undertaking above provided for is adapted to a release upon bail pending final disposition of the appeal, and is not at all adapted to such release under the temporary stay pending application for a certificate of reasonable doubt. The section assumes that a certificate of reasonable doubt has been granted, and therefore relates to bail under a stay following such certificate, and not to bail under the temporary stay preceding such certificate. It is said that this clause was incorporated into the section by amendment and, therefore, is not significant as indicating the purpose of the statute. If we should grant this explanation to be more effective than I really think it is, we still find the other provisions of the section equally requiring an undertaking binding the defendant to answer a final disposition of his appeal, and not an unfavorable disposition of his application for a certificate. In fact the learned Appellate Division ultimately seems to concede that there is no provision for an undertaking to be executed by a defendant upon release upon bail pending his application for a certificate. But it is said that if the statute has provided that he may thus be released he will not be deprived of this right by reason of this omission; that it is a casus omissus, and not important. This seems to me to be a begging of the question. The statute has provided for one stay of proceedings following a certificate that there is merit to the defendant's appeal, which is a very substantial right, and which ordinarily will continue until the final disposition of the appeal. It has provided for another stay which is temporary and incidental to an application. Then it has provided that a defendant may be released upon bail when there is a stay of proceedings, and, in prescribing the conditions of the undertaking to be executed, adapts it entirely to a release under the former stay, and not at all to one under the latter. Under these circumstances, in attempting to determine whether the Legislature intended that a defendant should be released upon bail under both stays, or simply under the former and substantial one, it seems to me that full provision for a form of bail under such former one and an absolute omission to provide for bail under the latter one is not to be regarded as a matter of inadvertence, but as clearly indicating the intention that the provisions for release under a stay do not apply to the temporary one.

Finally, it is urged that such interpretation and conclusion may result in the temporary confinement of one who has a meritorious appeal, and will be harsh and unjust. I believe that this objection will prove to be rather based upon a fear than sustained by

| reality, and that not many persons convicted of criminal offenses and who have good grounds for appeal will be treated with undue severity. We may anticipate that a judge before whom has been conducted a criminal trial will be able to determine with fair accuracy whether a conviction rests upon debatable grounds, and that if it does a certificate will be granted forthwith and the defendant saved from imprisonment pending the determination of his appeal. A judge, other than the one before whom the trial has occurred, has the power, by prescribing short notice to the district attorney, to compel a prompt determination of the application for a certificate. Remembering always that the statute by granting any right of review has secured to convicted persons a favor which they otherwise would not enjoy, it will not be too much if the construction adopted, under the safeguards mentioned, does result in treating a judgment of conviction obtained by due process, legal and entitled to enforcement even to the extent of taking the defendant into custody unless and until some duly constituted authority shall certify that reasonable grounds exist for questioning its correctness. We can hardly close our minds to the fact that at the present time the universal trend in public discussion of our system of criminal procedure is in the direction of criticising its leniency and tardiness whereby criminals entirely escape or unduly postpone the day of punishment, and the con struction which I have endeavored to justify will close one avenue through which persons duly convicted, by aid of ex parte statements and allegations of error, may escape, temporarily, enforcement of the judgment of conviction which has been rendered against them. The fact has not been overlooked that a somewhat lengthy discussion has been given to a question which so far as this case is concerned has become academic. We have been assured, however, and readily have been able to see that the question here presented is an important one and liable to arise with much frequency, and under such circumstances it has been deemed wise to express our views in the case now presented for guidance in the future.

The argument has been advanced that, independent of the merits of the underlying question, the order releasing the relator was properly affirmed by the Appellate Division, because, at the time said latter court made its decision, a certificate of reasonable doubt had been granted entitling the defendant to be released upon bail, and that such a fact could be taken into account as justifying the original order. I do not find in the statute relating to habeas corpus any provision, or in the law relating thereto any established principle, which seems to warrant the view that an order in a statutory proceeding erroneous upon the facts existing at the time it is made may be affirmed upon appeal because meantime some step has been taken