gether with such taxes as have fallen due since March 1, 1895, and which also shall have been paid by the defendants, or either of them, and interest thereon from the day on which the same shall have been paid, after deducting from the said valuation of the said building the value of the use and occupation of said premises from March 1, 1895, the expiration of said term, to the time of making his, the said referee's, report, with interest thereon, and of all the arrears of rent, taxes, and assessments, if any, with interest, which were due prior to March 1, 1895, as found in said judgment. It is further adjudged that the plaintiffs recover from the defendants the costs and disbursements in this action, to be taxed by the clerk; and that until after the election of the plaintiffs either to renew said lease or to pay the value of the building, either party may apply to the court at the foot of said judgment for any further or other order or relief to which he may be advised that he is entitled, not inconsistent with this judgment, and necessary to final and complete relief in the action." In pursuance of that judgment or order, the referee named took proof upon the questions stated, and made a report thereon to the special term, by which it was confirmed and adopted. At the opening of the trial before the referee the defendants objected to proceeding before him, upon the ground that the appellate division had no power to order such a reference in the action. This objection was overruled, and the defendants excepted. The referee thereupon proceeded to take proof under the order or judgment of the appellate division as it was finally settled by that court.

Upon the report of the referee, which was confirmed, the special term directed judgment thereon, reversing the judgment entered upon the first trial. It then determined that the value of the lot in question on March 1, 1895, was $100,000; that the value of the building on the same day was $15,100, and that, with interest, it amounted to $16,912; that the taxes which had been paid by, the defendants for the years 1895 and 1896 amounted, with interest, to $2,112.71; that the value of the use of the land and building from March 1, 1895, to March 1, 1897, with interest, was $17,627.41, being at the rate of $8,300 per year, payable monthly in advance; that the plaintiffs had the right to elect either to grant a renewal of the lease for the further term of 21 years at the rent of $5,000, or to pay the value of the building which, with interest, amounted to $16,912; that the defendants were entitled to credit for taxes, which, with interest, amounted to $2,287.10; that the value of the building, with the amount of taxes paid by the defendants, together with interest, amounted to $19,199.10; that from that amount should be deducted the value of the use of the premises from March 1, 1895, to March 1, 1897, with interest, amounting to $17,788.

99, and costs to the amount of $616.15, making the total credit to the plaintiffs $18,405.14, and leaving only the sum of $793.96 to be paid to the defendants for the building; that the plaintiffs should elect within 20 days after final judgment and notice thereof either to renew the lease or to pay the value of the building; that, if they elected to renew the lease, they should tender it as of March 1, 1895, at the rent of $5,000 per annum, payable as in former years, but that, if the plaintiffs elected to pay the value of the building, the defendants should forthwith deliver up the possession upon the payment or tender of $793.96; that, if the plaintiffs elected to grant a renewal of the lease, the defendants should still pay $616.15 costs and disbursements; and that the judgment should not be a bar or defense to any action by the plaintiffs to recover for the use and occupation of the premises. From that judgment an appeal was taken to the appellate division, where it was unanimously affirmed, and the defendants have now appealed to this court. The notice of appeal brings up for review not only the last judgment, but also the judgment or order of the appellate division of January 14, 1897, which reversed the first judgment of the special term (42 N. Y. Supp. 404), dismissing the complaint and appointing a referee to determine the questions mentioned. The order reversing the original judgment entered upon the decision of the trial court contained no statement that it was reversed upon the facts, nor did the second judgment, affirming the action of the special term and referee, contain any such statement.

Nelson S. Spencer, for appellants. William Mitchell, for respondents.

MARTIN, J. (after stating the facts). That the learned appellate division was not justified in reversing the judgment of the trial court without awarding the defendants a new trial upon all the issues in the action is thoroughly established by the decisions of this court. Moffet v. Sackett, 18 N. Y. 522; Cuff v. Dorland, 57 N. Y. 560; Whitehead v. Kennedy, 69 N. Y. 462; Andrews v. Tyng, 94 N. Y. 16; Lawrence v. Church, 128 N. Y. 324, 28 N. E. 499; Porter v. Dunn, 131 N. Y. 314, 30 N. E. 122; Altman v. Hofeller, 152 N. Y. 498, 46 N. E. 961; Heller v. Cohen, 154 N. Y. 299, 48 N. E. 527; Benedict v. Arnoux, 154 N. Y. 715, 724, 49 N. E. 326; Snyder v. Seaman, 157 N. Y. 449, 52 N. E. 658; New v. Village of New Rochelle, 158 N. Y. 41, 52 N. E. 647; In re Chapman, 162 N. Y. 456, 459, 56 N. E. 994. Instead of granting a new trial, to which the defendants were clearly entitled, that court made an order appointing a referee to take certain proof and report it to the special term, and then directed that a final judgment should be entered thereon. Without examining in further detail the practice adopted in this case, it is sufficient to say that it was wholly unauthorized and irregu

lar, and must be set aside. We have so often and so recently discussed the absence of authority in the appellate division to grant similar orders or judgments, that any further discussion of the subject would be a work of supererogation.

There is, however, a more serious impediment to the affirmance of either of the judg. ments of the appellate division, arising from the fact that the first judgment of the special term was reversed upon questions of law only. The order of reversal contains no statement that the judgment was reversed upon the facts, and hence, under the mandate of section 1338 of the Code of Civil Procedure, it must be presumed to have been reversed upon questions of law. People v. Adirondack Ry. Co., 160 N. Y. 225, 54 N. E. 698; Bomeisler v. Forster, 154 N. Y. 229, 48 N. E. 534, 39 L. R. A. 240; Petrie v. Trustees of Hamilton Col lege, 158 N. Y. 45S, 53 N. E. 216; Gannon v. McGuire, 160 N. Y. 476, 55 N. E. 7; Lannon v. Lynch, 160 N. Y. 483, 55 N. E. 5; Schryer v. Fenton, 162 N. Y. 444, 56 N. E. 997; Spellman v. Looschen, 162 N. Y. 268, 56 N. E. 741. The trial court was plainly of the opinion that the proof disclosed such a lack of diligence or effort upon the part of the plaintiffs to procure a valuation of the premises and building in the manner prescribed by the lease as to prevent them from maintaining this action, and for that reason dismissed the complaint. It is equally manifest that the learned appellate division was of the opinion that, upon the facts, the complaint should not have been dismissed, and upon that ground reversed the judgment. An examination of the evidence taken upon the first trial renders it obvious that there was sufficient testimony to justify the special term in finding that the plaintiffs were guilty of such inaction and negligence upon their part as to prevent the proper maintenance of this action. The plaintiffs were not entitled to the relief sought unless the defendants were guilty of some improper act or omission to proceed with the arbitration, or to agree upon the value of the property in the manner provided by the lease; especially if there was such neglect upon the part of the plaintiffs as is indicated by the evidence and determination of the special term. It was the duty of each party to act in good faith to accomplish the appraisement in the manner specified. Livingston v. Sage, 95 N. Y. 289; Hood v. Hartshorn, 100 Mass. 117; Kelso v. Kelly, 1 Daly, 419; Uhrig v. Insurance Co., 101 N. Y. 362, 4 N. E. 745. While it may be that, as the appellate division had the right to review the first judgment, both as to the law and facts, it might have properly reversed it upon the facts, still, not having done so, its judgment of reversal cannot be sustained, unless the decision of the special term was without any evidence to support it; and hence a reversal upon the law was justified. An examination of the record renders it manifest that it could not be properly held, as a matter of law, that the special term was not

authorized by the proof before it to dismiss the complaint upon the ground stated. Therefore, the learned appellate division erred in reversing the first judgment upon the law, and its judgment must be reversed, and the judgment of the special term affirmed, unless this court acts upon the consent or stipulation of the defendants' attorney, made upon the argument.

The attorney for the appellants, during the argument, consented that, if this court should be of the opinion that the principle adopted in appraising the value of their building was correct, the judgment might be so modified in other particulars as to conform to the law and proper practice, and, as thus modified, might be affirmed. We have carefully examined that branch of the case which relates to the appraisal and valuation of the interests of the parties in the premises, and are of the opinion that the appraisals were correct, both as to the value of the land and as to the value of the building thereon.

But the judgment of the court below is erroneous in other respects, and must be reversed, and the first judgment of the special term affirmed, unless the respondents shall stipulate to modify the judgment of the appellate division in the particulars pointed out. The court below erroneously charged the ap pellants $8,300 a year from March 1, 1895, to March 1, 1897, for the use and occupation of the premises, when the annual rent reserved in the lease was only $1,000. In this connection it is to be observed that by the terms of the lease the defendants would not have been justified in surrendering or required to surrender possession until the plaintiffs elected either to renew the lease upon terms agreed upon or adjusted, or to purchase the building at a price agreed upon or settled in the manner specified. Such is the plain reading of the lease, and such was the clear intention of the parties making it. Therefore it is obvious that the defendants could not properly surrender possession until the value of the lot and building was agreed upon or thus determined, nor until the plaintiffs made their election. The plaintiffs at no time indicated any willingness to accept the possession, or in any way consented to a surrender thereof by the defendants. We think the continuance of the defendants in possession of the premises must be regarded as under the lease until such time as the plaintiffs actually made their election, which was not until after the second judgment was rendered. Where a lease for a term of years contains a covenant on the part of the lessor that at the expiration of the term the lessee shall be paid the appraised value of the building, or a new lease at an appraised rent shall be granted, the lessee at the expiration of the term is entitled to retain the possession until the covenant shall be performed by the lessor. This binds both the lessor and lessee. The lessee is not, however, discharged from the payment of the rent, but in an action for use and oc

cupation the lessor can recover no more than the rent originally reserved. Holsman v. Abrams, 2 Duer, 435; Ryder v. Jenny, 2 Rob. (N. Y.) 56; Paine v. Rector, etc., 7 Hun, 91; Van Rensselaer v. Penniman's Heirs, 6 Wend. 569. Instead of being charged $8,300 a year, the defendants should have been required to pay only the annual rent of $1,000, reserved by the lease. Therefore the judgment should be modified by deducting from the amount allowed to the plaintiffs for the use of the premises the sum of $15,627.41, the interest thereon, amounting to $161.58, and the costs and disbursements allowed against the plaintiffs, amounting to $616.15, making a total of $16,405.14, which should be deducted from the amount credited to the plaintiffs. The defendants should be allowed for the value of their building $15,100, but the amount credited to them for taxes should be disallowed, and the rent for the two years the premises were occupied by them should be deducted from the value of the building, leaving their due therefor, after deducting the rent, the sum of $13,100. It follows that the judgment of the appellate division reversing the first judgment of the special term should be reversed, the subsequent proceedings and judgment set aside, and the said judgment of the special term affirmed, with costs to the defendants of all the proceedings in all the courts, unless the plaintiffs stipulate to modify the judgment appealed from by directing that the plaintiffs pay to the defendants $13,100, with interest thereon from March 1, 1897, with costs to the defendants in all the courts. If they shall so stipulate, then the Judgment appealed from should be modified in accordance with such stipulation, and, as so modified, affirmed.

1. An indictment charging defendant with killing deceased by wounding her with a revolver loaded with powder and with leaden ball, which revolver he discharged into deceased's person, is sufficiently certain as to the means of killing; there being no uncertainty as to whether deceased was struck by the ball or the revolver.

2. On a trial for murder, the declaration of deceased that her husband had shot her, made after staggering back five feet from where she was standing when shot, placing her baby on the bed, and falling on her knees, was admissible in evidence as part of the res gestæ.

3. A written statement of deceased, made the night before she died, declared: "I realize that I must die; that I am mortally wounded. I say, as I am about to die, that [accused] shot

me." The uncontradicted testimony was that deceased said when making the statement she knew she could not live long, and seemed very weak, and had to "stop between her talk." Held, that sufficient predicate was laid for the admission of such statement as a dying declaration.

4. Where a dying declaration was admitted in evidence, the declarant's statement that she was mortally wounded, and about to die, was admissible to show the surrounding circumstances, that the jury might determine what credit should be given the declaration.

5. On a prosecution for homicide, statements made by the deceased, though not dying declarations, were admissible to impeach her dying declaration introduced by the state, notwithstanding defendant had been allowed to introduce another and contradictory dying declaration by way of impeachment.

6. On a trial for murder, evidence tending to show that a person other than defendant had, subsequent to the killing, admitted his guilt, was inadmissible.

7. A dying declaration introduced by defendant stated that a woman was the murderer rather than defendant, whom declarant had accused in a former statement, and the state's evidence was that the shot was fired from a small-caliber revolver, and that the assassin spoke in an assumed voice that sounded as much like a woman's as like a man's, and had on man's attire, including a long overcoat. Held, that in such a state of the evidence defendant was entitled to show that the woman had a small revolver repaired shortly before the homicide; that in the evening of the killing she was seen to leave her home disguised as a man, with a long overcoat, and go in the direction of the scene of the tragedy.

8. Where, on a murder trial, the defense was that a person other than defendant had done the killing, testimony as to threats made by such person, though not admissible of themselves, yet, in connection with evidence that such other person was guilty, was admissible as showing his motive and disposition to commit the crime.

9. On a prosecution for homicide, expert evidence as the quantity and quality of the light of the moon at the time of the killing was inadmissible, since such matters are not the subject of expert testimony.

Appeal from circuit court, Clark county; James K. Marsh, Judge.

George Green was convicted of murder, and he appeals. Reversed.

L. A. Douglass and H. W. Phipps, for ap pellant. H. C. Montgomery and Bomar Traylor, for the State.

BAKER, C. J. Appellant was convicted of murdering his wife. He complains of the overruling of his motion to quash the indictment, and of the refusal to grant him a new trial.

It is urged that the indictment fails to show with sufficient certainty the means by which the mortal wound was inflicted. The indictment avers that appellant killed Lizzie Green by wounding her "with a certain dangerous and deadly weapon, to wit, a revolver, then and there loaded with gunpowder and leaden ball, which revolver he, the said George Green, then and there had in his hands, and discharged at, against, and into the person of the said Lizzie Green," thereby inflicting a mortal wound, of which she died. The un

certainty is said to arise over the question whether the deceased was struck with the revolver or the leaden ball with which the revolver was loaded. Appellant relies upon the case of Littell v. State, 133 Ind. 577, 33 N. E. 417. The indictments are not exactly parallel; but, if they were, the method of criticism employed in Littell's Case is too fanciful and strained to be accepted as a precedent. Compare Keyes v. State, 122 Ind. 527, 23 N. E. 1097, and Bass v. State, 136 Ind. 165, 36 N. E. 124. To discharge a loaded revolver does not mean to throw the revolver as a missile from the hand, but to free the revolver of the missile with which it is loaded, by firing.

Moran, father of deceased, testified that between 8 and 9 o'clock in the evening he was at his daughter's house, with her and her infant children; that some one outside called, "O, Mis' Lizzie Green, come out; I I want to see you;" that his daughter, with a babe in her arms, stepped to the door, and asked, "Who are you?" that the person shot, and the witness heard the sound of retreating footsteps. "Q. Now, what did she do when the shot was fired? A. She hallooed, 'O, Lord " Defendant objected to anything she said, on the ground that it was not part of the res gestæ. The court overruled the objection, and the defendant excepted. "Q. Now, go on, uncle. A. She said, 'O, Lord; George has shot me!" Motion to

strike out overruled. Exception. On crossexamination, the witness said that when the shot was fired his daughter staggered back about five feet, dropped the baby on the bed which stood near the door, and sank upon her knees, before making the above exclamation. No motion to strike out was predicated on the cross-examination. But, whether the exclamation was made at the door or by the bed, it was plainly the event speaking through the wounded person, and not the wounded person giving an account of a past occurrence. In all cases such as this, it is obvious that the shot has been fired, and the principal act is at an end from the standpoint of the assailant, before the assailed can make any declaration. The admission of the declaration depends upon its being so connected in time and circumstances with the principal act that the assailed appears to be the spontaneous spokesman of the act, and not the deliberate utterer of an afterthought. Gillett, Ind. & Col. Ev. c. 9; Binns v. State, 57 Ind. 46; Jones v. State, 71 Ind. 66; Railroad Co. v. Buck, 116 Ind. 566, 19 N. E. 453; and cases cited on page 576, 116 Ind., and page 458, 19 N. E.; Hall v. State, 132 Ind. 317, 31 N. E. 536; Parker v. State, 136 Ind. 281, 35 N. E. 1105; Shoecraft v. State, 137 Ind. 433, 36 N. E. 1113.

A dying declaration, in which Mrs. Green stated that appellant was the person who shot her, was admitted in evidence over appellant's objection. It is contended that the proof was not clear that the declarant was

under the sense of certain and speedy death. Such proof is necessary, but it may be afforded by circumstances, even in the absence of any express statement to that effect by the declarant. Gillett, Ind. & Col. Ev. §§ 195-197. The declaration in question was made the night before Mrs. Green died. The witness testified that the declarant said she knew she could not live long, and that declarant seemed to be very weak, and "had to stop between her talk." The declaration was reduced to writing, and signed. It contained these statements: "I realize that I must die; that I am mortally wounded.

* I

say, as I am about to die, that George Green shot me." All of this evidence was first for the court to hear in determining the admissibility of the declaration; it was competent; it was uncontradicted; and its sufficiency was such as to satisfy the court that the declaration should be admitted. No error appears in the ruling. Gillett, Ind. & Col. Ev. § 202.

Appellant also urges that the court should have excluded from the jury the declarant's statement as to her sense of impending death. After the court had decided that the declaration as to the slaying and the slayer was admissible, the jurors were entitled to know all of the circumstances surrounding the declarant, in order to determine what credit should be given to the declaration. Gillett, Ind. & Col. Ev. § 203.

Appellant further objects to the declaration because it does not fix the date of the tragedy. The occasion was amply identified.

Appellant was permitted to prove a dying declaration in which Mrs. Green stated that Clara Brown was the person who shot her. Appellant offered to prove statements, made by deceased at various times during the two weeks she languished from the wound, that were contradictory to the dying declaration proved by the state, and to the effect that the fatal shot was fired by Clara Brown. The state objected because the preliminary proof showed that the offered statements were neither part of the res gestæ nor dying declarations. Appellant was entitled to this evidence as an impeachment of the dying declaration introduced by the state. Gillett, Ind. & Col. Ev. § 204; People v. Lawrence, 21 Cal. 368; State v. Lodge, 9 Houst. 542, 33 Atl. 312; Morelock v. State, 90 Tenn. 528, 18 S. W. 258; Carver v. U. S., 164 U. S. 694, 17 Sup. Ct. 228, 41 L. Ed. 602; 10 Am. & Eng. Enc. Law (2d Ed.) 384. Inasmuch as a defendant has no opportunity at the trial to have a cross-examination as to the subject-matter of the dying declaration, it would be most unjust to deprive him of the right of impeachment by contradictory statements, and the right would be lost to him if he were required to lay the usual foundation for that kind of impeachment. But the state claims that appellant had the benefit of the contradiction by proving the dying declaration that inculpated Clara Brown. That declaratica

was primary and direct evidence in favor of appellant, and its admission was not at all dependent upon the introduction of the other dying declaration by the state. True, the one dying declaration contradicts the other. But the same is true of much direct evidence of litigants. And the fact that one party has direct evidence that is in conflict with his adversary's does not curtail his right to uliscredit his adversary's direct evidence by im. peachment.

The mortal wound was inflicted with a bullet from a small-caliber revolver. Moran, the deceased's father, testified that he did not recognize the voice of the person who called his daughter to the door; that it did not sound like a man's voice, nor like a woman's, but seemed to be feigned. In her dying declaration introduced by the state, Mrs. Green said her assailant had a man's hat pulled down over the eyes and wore a long overcoat. Appellant, after introducing the dying | declaration that named Clara Brown as the assassin, offered to prove that Clara Brown a few days before the murder took a smallcaliber revolver to a gunsmith to be repaired; that she got the revolver from the smith on the day of the murder; that she asked the smith if the revolver was in perfect repair, and would snap a cartridge every time. Appellant offered to prove by a neighbor of Clara Brown that a few days before the murder Clara Brown said to the witness that she was jealous of Charley Mitchem and Lizzie Green; that she did not intend to have Charley Mitchem going around with Lizzie Green; that she would kill her, and that the way she would kill her would be to fix herself up to look like a man, go to her house after dark, call her out, and shoot her when she came to the door; that about 7:15 o'clock on the evening of the murder witness saw Clara Brown leave her house, disguised as a man, with a man's hat and a man's overcoat on, and go off in the direction of the home of Lizzie Green, which was about a mile from the house of Clara Brown. Appellant further offered to prove by the same witness that on November 20, 1898, the day after the assault, Clara Brown said to the witness that the person who shot Lizzie Green did not get her this time, but would the next. The tendency of the last offer is to prove that Clara Brown, subsequent to the shooting, admitted her guilt. Such evidence is not admissible. Gillett, Ind. & Col. Ev. § 227; Bonsall v. State, 35 Ind. 460; Jones v. State, 64 Ind. 473, 485. The overt acts of Clara Brown, offered to be proven by the gunsmith and the neighbor, were admissible in connection with the evidence already before the jury. The state had shown that the shot was fired from a small-caliber revolver. that the assassin spoke in an assumed voice that sounded as much like a woman's as a man's; and that the assassin had on a man's attire, including a long overcoat. The dying declaration introduced by the defense was direct and primary evi

dence that Clara Brown was the assassin. In this state of the evidence, appellant was entitled to prove that Clara Brown had had a small-caliber revolver repaired, and that it was received into her possession shortly before the murder, and that in the evening of the tragic day she was seen to leave her home, disguised as a man, wearing a man's hat and long overcoat, and go in the direction of Lizzie Green's. What Clara Brown said to the gunsmith in having the revolver repaired was admissible as explanatory of that act. And, although threats of a third party against the deceased are not competent in and of themselves (Jones v. State, 64 Ind. 473; Walker v. State, 102 Ind. 502, 1 N. E. 856), yet, there being evidence pointing directly to Clara Brown as the guilty person, appellant should have been permitted to show that she had a motive and the disposition to commit the crime. Gillett, Ind. & Col. Ev. §§ 228, 276, 278; Underh. Cr. Ev. § 332; State v. Hawley, 63 Conn. 47, 27 Atl. 417; Com. v. Abbott, 130 Mass. 472; Com. v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235; State v. Davis, 77 N. C. 483; Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174; Worth v. Railroad Co. (C. C.) 51 Fed. 171; Alexander v. U. S., 138 U. S. 353, 11 Sup. Ct. 350, 35 L. Ed. 954; Insurance Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. 909, 36 L. Ed. 706. In State v. Hawley it was said: "In this case the threat was not an isolated, independent transaction. On the contrary, it was a link in a chain of circumstances which the counsel for the accused might with propriety claim connected Mrs. Hawley with the crime itself." The court held in Com. v. Abbott: "It was clearly competent for the defendant to prove that he did not commit the murder, by showing that some other person did; and, as one step towards that end, he had a right to prove such a state of ill feeling on the part of the husband, existing at the time of the homicide, as would furnish him with a motive for the commission of the crime." In Trefethen's Case the defense was that the deceased had committed suicide by drowning. The evidence against the defendant was circumstantial. There was the fact of death by drowning, but no evidence of a struggle or any violence. Held, that the declaration of deceased, made the day before her death, that she intended to drown herself, was admissible. In Worth v. Railroad Co. the threats of third parties to do the act for which the defendant was sought to be held liable were admitted. "The position taken by the defendant on the trial was that the train had been wrecked through the intentional wrongdoing of a third party, and to sustain this defense evidence was introduced tending to show that the train had been derailed by an obstruction in the frog; and, to prove that this had been intentionally placed in the frog, evidence showing the position of the obstruction was given, tending to show that it required human agency to so place it; and it was then shown that there