from disinterested witnesses who may have observed the conduct of the parties, it is not rendered incompetent because it comes from the complainant herself. Speaking of such testimony from the complainant, Judge Earl said: "It is not as valuable, or trustworthy, or important as if it had come from other witnesses. * * * But, whether it was important or not, there is no rule which condemns it, and there is abundant authority to justify its reception."

But it will be observed that, while evidence of this character is admissible, it is so for the purposes of corroboration only. It is not admissible and never was for the purpose of showing the commission of separate offenses of the character of the one charged in the indictment, in order to convict the defendant of one of the crimes thus proved. The receipt of evidence of this character necessarily presupposes the introduction of some evidence at least tending to prove the crime charged in the indictment; for, until evidence tending to prove the crime charged has been introduced, there is nothing to corroborate, and therefore there is no justification for the introduction of evidence indicating that the parties had sustained similar relations to each other on prior occasions, upon the view that acts of illicit intercourse are not apt to be sporadic, but instead are evidence of an adulterous disposition in the parties, and are upon opportunity quite likely to be repeated. We do not mean to say that a trial court should not, under any circumstances, admit corroborative evidence in advance of evidence tending to prove the offense charged, but there was no excuse for taking that course in this case. The grievance of the defendant herein is founded upon much broader lines than the mere order of procedure, and is that the court sustained the efforts of the district attorney to prevent him during seven days of the trial from finding out as to which one of the seven offenses testified to by the complainant he was indicted for and was to be tried for. This was done on the erroneous view of the law that the indictment covered, not simply one offense, but each and every one of seven distinct offenses, down to such time as the district attorney should be pleased to elect, or the court should compel him to choose, one offense for presentation to the jury, at which moment the other six offenses would cease to be covered by the indictment. This

is a view for which we have been unable to find any support, either in principle or authority.

Again, the court erred in charging the jury touching the alteration of the baptismal record. Upon that subject it said, among other things: "On the other hand, the people claim that there was opportunity to change it, and that the defendant was the only person who could be interested in the change of the record, and they ask you to infer from that that he is the man who did it. * * If, however, you do come to the conclusion

that he did it, then you are to give it such weight as corroborating testimony as you deem it entitled to." Such evidence as there was on the subject was given by Mr. Peck, Father Hendricks, and Bridget King, and its tendency was not only to establish that the defendant did not do the deed, but, further, that he did not have the opportunity. And yet, without evidence to the contrary, and in the face of evidence strongly indicating that the defendant did not alter the record, the jury were permitted seriously to weigh the speculations of the prosecution based upon the defendant's being in the presence of the record with Father Hendricks and Mr. Peck, as against the testimony of the last-named persons, which included a statement by Mr. Peck that he took a copy of the record then and there, and the record had not then been changed.

The people were also allowed to show by the testimony of Jennie Skillen the reasons given by the complainant, nearly nine months after the first act of sexual intercourse, that induced her to consent and persuaded her to silence. Those reasons must have been most prejudicial to the defendant with the jury, and yet no authority can be found for their admission. The charge of rape made against a man, if promptly made, may be received in evidence, although hearsay, in corroboration of the complainant's story. People v. O'Sullivan, supra, and cases cited. But declarations made months afterwards, for the purpose of excusing her consent to the act, are not admissible for any purpose. And it is not seriously contended otherwise, the claim now made being that defendant's counsel in cross-examining the witness Skillen opened the door wide enough to let in this hearsay and improper testimony. A district attorney should not be looking for openings through which he may pass, without danger to his case on appeal, testimony not favored by any rule of evidence, in the hope that he may affect defendant's case to his prejudice by considerations that are justly abhorred by the law and its faithful administrators. It is his duty to seek a conviction through lawful methods, and that includes legal evidence, and the court should not encourage new devices that aim at different results. Now, the district attorney having brought the fact that the ac cusation against defendant by Marie Sweeney was first made to the Skillen family, the defendant sought to show, on cross-examination, that Jennie Skillen had first suggested the name of Father Flaherty to Marie Sweeney as the author of her misfortune. Counsel said: "Didn't you say to her, 'Wasn't it Father Flaherty?' and she said, 'Yes'? A. No, sir; I did not. Q. How did you say that? A. As near as I can remember, I asked her who she had been with. She didn't answer. I said, 'Marie, you know and I know you have been with some one, and I want you to tell me who the author of your

Q.

trouble is.' She wouldn't tell me. Q. I only ask you for the question and the answer,-the time when the name of Father Flaherty was used. What did you say and what did she say? A. I said, 'Who was it?' She then said it was Father Flaherty. And that was the first mention she made of the name of Father Flaherty in the matter? A. Yes, sir." This was all of the cross-examination on that subject. The counsel for the people then put the question which, after referring to the statement of Marie Sweeney that Father Flaherty was responsible for her condition, concluded as follows, "Did she give you any reason why she had intercourse with him?" These reasons were not competent as evidence prior to the cross-examination of the witness, nor were they made either necessary or competent by that crossexamination. This was not a case where, a part of a conversation being given, the rest was needed in order to present the situation fairly; nor did the question call for the rest of the conversation, but instead it asked for the reasons only, and they were not competent as evidence for any purpose; nor is there even excuse for suggesting that they were made so by the fact that the hearsay declarations of the complainant as to the name of the person responsible for her condition was perhaps drawn out by the defendant instead of the people. The judgment of conviction should be reversed, and new trial ordered.

O'BRIEN, BARTLETT, VANN, and LANDON, JJ., concur. HAIGHT, J., concurs, except as to the competency of jurors, and MARTIN, J., in result.

Judgment of conviction reversed, etc.

(162 N. Y. 453)

CARNEY v. NEW YORK LIFE INS. CO. (Court of Appeals of New York. April 17, 1900.) CORPORATIONS-CONTRACTS-POWER OF OFFICERS.

A by-law of a corporation, adopted by the board of trustees, whose terms of office continued only four years, authorizing the president and actuary of the company to appoint, remove, and fix the compensation of each and every person employed by the company, does not authorize a contract by the president and actuary in behalf of the corporation employing a person for life.

Appeal from supreme court, appellate division, First department.

Action by Sidney H. Carney, Sr., against the New York Life Insurance Company. From a judgment of the appellate division (45 N. Y. Supp. 1103) affirming a judgment dismissing the complaint on the opening of plaintiff's counsel, plaintiff appeals. Affirmed.

James D. Fessenden, for appellant. William B. Hornblower, for respondent.

HAIGHT, J. The action was brought to 1ecover damages for a breach of contract of employment. The plaintiff's counsel, in his opening, repeated the allegations of his complaint, which were, in substance, that in December, 1869, the president and actuary of the defendant entered into an oral contract with the plaintiff, by the terms of which he was to enter the employment of the defendant in a medical capacity, and that such employment should continue during his life; that for the first year his salary should be $5,000, the second year $5,500, and the third year $6,000, and that it was to remain at that figure until changed by the parties; that, pursuant to such contract, he entered the employment of the defendant, which continued until the year 1895, with a salary which was increased from time to time until it reached $12,000 per annum; and that on the 20th day of June, 1895, he was wrongfully discharged. The complaint further alleged that the board of trustees had adopted a bylaw which was in force at the time of the making of the contract in 1869, by which the president and actuary were empowered "to appoint, remove, and fix the compensation of each and every person, except agents, employed by the company." He demanded as damages $168,000. The answer denied that the contract was for life, and alleged that it was void.

It is claimed that the alleged contract was void under the statute of frauds, and, further, that it was a contract which neither the executive officers nor the board of trustees had the power to make, under the authority of Beers v. Insurance Co., 66 Hun, 75, 20 N. Y. Supp. 788; but passing, without determining, these questions, we are of the opinion that the plaintiff has no cause of action, for other reasons, which may be briefly stated. The by-law alluded to must be given a reasonable interpretation. We may assume that the power given to appoint was intended to include the power to employ, and to agree upon the compensation that should be paid; but in assuming this we cannot believe that the board of trustees, in adopting the by-law, intended to invest the executive officers named with the power to enter into unreasonable contracts as to the term of employment. Under the statute, the board of trustees consisted of twenty individuals, whose terms of office continued for four years, five being elected each year. The management and control of the corporation was given to the trustees. In construing the action of the board in adopting the by-law in question we must assume that they had in mind the provisions of the statute fixing their terms of office, and that, at the expiration of that period, other persons may be chosen in their places, upon whom would rest the responsibility of the conduct and management of the business of the company; and that they had no right to interfere with the powers of future boards of trustees by imposing upon them unreasona

ble contracts. This provision of the statute may properly be taken into consideration by the court in determining whether the contract is reasonable. Having in view the provisions for the election of new officers upon whom would be cast the responsibility of the management of the company, and the evident purpose of the statute that the hands of the future officers should not be tied, or their action unreasonably hampered, we think the contract in question must be held to be unreasonable, and one not contemplated by the by-law, and, consequently, one that should not be executed. In this case there is no dispute as to the facts, and, consequently, the questions arising with reference to the meaning of the by-law, and as to whether the contract is reasonable, is for the court, and not for the jury. Wright v. Bank, 110 N. Y. 237, 249, 18 N. E. 79, 1 L. R. A. 289; Mead v. Parker, 111 N. Y. 259, 262, 18 N. E. 727; Sullivan v. Cement Co., 119 N. Y. 348, 355, 23 N. E. 820; Colt v. Owen, 90 N. Y. 368. The judgment should be affirmed, with costs.

PARKER, C. J., and O'BRIEN, BARTLETT, MARTIN, VANN, and LANDON, JJ.,

concur.

Judgment affirmed.

(163 N. Y. 1)

BENNETT v. LONG ISLAND R. CO. (Court of Appeals of New York. May 1, 1900.) RAILROAD - CONSTRUCTION MASTER AND SERVANT INJURY TO SERVANT SWITCH WITHOUT LOCK OR TARGET-NEGLIGENCE.

Where a railroad company, in constructing a road, puts in a siding for temporary purposes, and closes it with a switch without lock or

target, and plaintiff, an employé, is injured, while riding in a caboose over the road, by jumping to avoid a collision with cars on the siding, made possible by the switch having been opened either by a co-employé or a third person, a refusal to dismiss the action against the company is error; it being shown by uncontradicted evidence that switches without lock or target are in customary use in railroad construction.

Appeal from supreme court, appellate division, Second department.

Action for injuries by Charles M. Bennett against the Long Island Railroad Company. From a judgment in favor of plaintiff, affirmed by the appellate division (47 N. Y. Supp. 258), defendant appeals. Reversed.

William J. Kelly, for appellant. George C. Case, for respondent.

PARKER, C. J. The defendant, while building an extension to its railroad of about 10 miles in length, put in for temporary use a switch without either lock or target, and by means of that switch, while open, a caboose propelled by an engine was run at considerable speed into a flat car loaded with rails standing on the side track. The plain tiff, an employé of the defendant, was, with

a number of other employés, in the caboose, en route to the point where they were to begin the labors of the day; and, discovering that a collision was imminent, he jumped, receiving injuries to the right arm, for which damages have been awarded to him by the judgment now under review. The switch had been in use for a number of months, was perfect of its kind, and when the engine and caboose passed by it the night before the accident the switch was closed; and, had it not been opened by human agency between that time and the return of the engine and caboose the next morning, the accident could not have happened. Neither passenger nor freight trains had been run over this track down to this time, nor were they so run for several months thereafter; and no engine was run over this road in the time intervening the passing of this engine and caboose at night, and their return in the morning. There was some evidence of threats of mischief by one or more Italians who had formerly been employed in the construction of the road, and of the close proximity of one of them at the time of the accident; and, while there was not sufficient evidence to require a finding that the switch had been thrown open by one of them, the fact was conclusively established that there was no defect in the switch, and that it required a man to open it. Therefore it must have been opened either by a fellow servant or by an outsider, and in either event the defendant is not liable to respond to this plaintiff for the results of such an act, because in the former case it was the act of a co-employé; in the latter, the felonious act of a third party. The Penal Code makes an interference with a switch by a third party a felony. Section 636. The learned trial justice correctly charged the jury as to these propositions, and with his conception of the law the appellate division agreed. The questions submitted to the jury were whether defendant should have provided a lock for the switch "for the purpose of securing it against trespassers who might inadvertently throw it out of place, or prevent temptation to persons maliciously minded, who might find it so easy to turn the switch, by having it secured, to make it more difficult," and also "whether or not it was its duty to have provided a signal, called a 'target,' so that an approaching construction train could have seen it at a distance so far that they could have stopped the train in time to prevent the accident," and, in effect, that an affirmative finding would establish the liability of the defendant to respond to the plaintiff in damages. The prevailing opinion at the appellate division agreed with this view of the law, and justified the trial court, upon those grounds only, in refusing to dismiss the complaint, and submitting the case to the jury.

When the plaintiff rested, he had proved the character of the switch, that it was closed the night before and open at the moment

of the accident, and that it was without lock or target, but had not offered any evidence tending to show that it was customary to either lock or place targets on switches made use of during the construction of railroads. The motion for nonsuit having been denied, the defendant proceeded to introduce evidence tending to show that the switch actually used was such as is ordinarily used during the construction of railroads, and that, during constructions, switches are never locked and never targeted. William A. Cattell, formerly assistant chief engineer on defendant's railroad, testified that the siding in question was put in for temporary use during the construction of the railroad, and, further, that during his 12 years' experience on various railroads, in which he had much familiarity with construction work, he did not think he had ever seen a locked switch on a construction track, and targets very seldom, if ever. The assistant engineer on the New York division of the Pennsylvania Railroad testified that he had had 18 years of experience on various railroads, was familiar with construction work on new railroads, and had never seen a switch locked on tracks in process of construction, nor had he ever seen targets on such switches; and, of this particular switch, he said it was of the regular standard variety of switch found on construction work, and that it was not customary to lock or target such switches during the process of construction. No witness was called who attempted to contradict the testimony given by these witnesses. At the close of the trial, therefore, the uncontradicted testimony showed that the switch in use had not only performed its work perfectly during the months that it had been in operation, and was a perfect switch of its kind, but, further, that the switch was of the standard variety found on construction work, and that it was not customary either to lock or target such switches. The question, therefore, was presented to the court, on a motion for a nonsuit, whether the jury could be permitted to say, notwithstanding this evidence, that the defendant failed in the duty which it owed to its employés, in not providing the switch with a lock or target, or both.

The rule of law is that the master's duty to his servants does not require him to furnish the best known appliances, but such only as are reasonably safe; and the test by which to determine whether he has performed that duty is not satisfied by an answer to the inquiry whether better appliances might have been obtained, but whether the selection made was reasonably prudent and careful. Stringham v. Hilton, 111 N. Y. 195, 18 N. E. 870, 1 L. R. A. 483; Kern v. Refining Co.. 125 N. Y. 50, 25 N. E. 1071; De Vau v. Railroad Co., 130 N. Y. 632, 28 N. E. 532; Harley v. Manufacturing Co., 142 N. Y. 31, 36 N. E. 813. Applying the test prescribed by the cases above cited to the evidence presented by this record, for the purpose of determining

whether this defendant, as master, discharged its full duty, the result is necessarily reached that this defendant fully performed its obligation to its employés engaged in the construciton of its road when it made selection of this particular switch, without putting on it elther a lock or target. True, it might have made use of one or both of these appliances; but, according to the record, the switch selected was such as is generally and efficiently used on construction work by other railroads, and hence in making selection of it the defendant acted with reasonable care and prudence. The best known appliance for completed railroads that are in actual operation is a switch with a lock and a target, but the defendant was not called upon during the construction of this road to do more than to furnish a switch that was reasonably safe. In Brick v. Railroad Co., 98 N. Y. 211, this court had before it a case where the plaintiff's intestate lost his life while riding upon a construction train over a dilapidated railroad, which the defendant was engaged in reconstructing; and in denying the plaintiff's right to recover the court asserted the general principle that it is the duty of the master to provide and maintain for the use of his employés suitable machinery and other in strumentalities for the performance of the duties enjoined upon them, and within that principle is generally included the duty of a railroad to provide a track sufficient for the purpose in view, and to maintain it in good order. But the court further said that, while this principle is generally applicable to railroads which are in a state of completion, it must be considered with some qualification in reference to a road which has become dilapidated and out of repair, and is in the process of being reconstructed. "It may be assumed, we think, that the deceased, in performing the services in which he was engaged, and in traveling on the construction train, understood that he was not working upon a road that was finished and in good repair, but upon one which, having been long neglected, and little traveled,-latterly only by construction trains,-subjected him to greater risks and perils than would be incurred under ordinary circumstances, and in entering defendant's service he assumed hazards incident to the same." The reasoning in that case is as applicable generally to the construction of a railroad as to its reconstruction. The master who, while constructing a railroad, makes use of such appliances as the experience of others engaged in similar work has shown to be sufficient and reasonably safe, performs his duty. Therefore this defendant performed its duty in selecting and using the switch in question; for, according to the evidence contained in this record, it selected the kind of switch that had been in use on other railroads during construction,a switch that had stood the practical test of user for so long a time that it had become the custom to use it without either lock or

target during the period of construction by railroads generally, and particularly by all those with which the witnesses had become familiar during their long and varied experience in railroad building. The record, therefore, was barren of any evidence authorizing a jury to find that in selecting this switch for use during construction, without either lock or target, the defendant acted unreasonably or imprudently, and therefore the motion to dismiss the complaint should have been granted. The judgment should be reversed, and a new trial granted, with costs to abide the event.

GRAY, BARTLETT, MARTIN, VANN, and WERNER, JJ., concur. CULLEN, J., not sitting.

Judgment reversed, etc.

(162 N. Y. 491)

BRENNAN v. CITY OF BUFFALO. (Court of Appeals of New York. April 17, 1900.)

MUNICIPAL CORPORATION IMPROVEMENTSASSESSMENTS-ACTS OF MUNICIPALITY-VACATING TAX SALE-SEVERANCE OF JUST AND EXCESSIVE TAXES.

1. A municipality made an assessment for local improvements on property of an adjoining owner, and thereafter arbitrarily added $581 to the assessment against plaintiff's property. In an action by plaintiff to have a sale made under the assessment set aside, and the entire assessment declared illegal, the sale was set aside, and the assessment corrected by striking out the $581. Held, that the entire assessment was nor void, as the amount arbitrarily added could be separated from the rest, though the trial court inaccurately characterized the assessment as "fraudulent."

2. Where a municipality, after making an assessment for local improvements, arbitrarily adds $581 to the assessment of plaintiff's property, and makes a sale of the property, an action to set aside the sale under the assessment is not an action to set aside the assessment, which must be brought, under the charter, within one year.

3. The court, in removing a cloud from the property under the illegal sale, having obtained jurisdiction of the parties and subject-matter, could, in addition to setting aside the sale, correct the illegal assessment.

Bartlett and Vann, JJ., dissenting.

Appeal from supreme court, appellate division, Fourth department.

Action by Caroline K. Brennan against the city of Buffalo to set aside a tax sale and the certificate issued thereon, and to vacate the assessment. From a judgment of the appellate division in favor of plaintiff (43 N. Y. Supp. 597), defendant appeals. Reversed.

W. H. Cuddeback, for appellant. Adolph Rebadow, for respondent.

O'BRIEN, J. The plaintiff sought in this action to set aside a sale of her real property made by the municipal authorities upon an assessment for a local improvement. The complaint attacked not only the validity of 57 N.E.-6

the proceedings resulting in the sale, including the certificate given to the purchaser, but the assessment upon which it rested, as illegal and void, and a cloud upon her title. It is conceded, I think, that subsequent to the delivery of the assessment roll by the treasurer to the comptroller there were irregularities in the proceedings sufficient to justify the trial court in setting aside the certificate of sale, and all the proceedings for that purpose subsequent to the transmission of the roll, to the comptroller by the treasurer. It seems that subsequent to the assessment for this improvement the assessors, for the purpose of general taxation, divided the property in question into two parts, and so represented it upon a map made for the use of the assessors. When the comptroller received the roll for this local assessment, he apportioned the whole amount to one part of the property, and in that form it was sent to the collector, and returned without collection to the comptroller again, who then discovered the error, and corrected it by spreading the assessment upon the whole property instead of a part only. It is sufficient to say that in the proceedings for a sale there was a material departure from the provisions of the statute, and it was open to the property owner to question the sale.

The most important question arises, not upon the proceedings resulting in the sale, but with respect to the validity of the assessment upon which the sale was based. If the assessment was void, as is claimed by the property owner, she was entitled to have that set aside as well as the sale. The facts that bear upon that question were all found by the trial court, and are undisputed. The improvement consisted in the paving of a street. The common council had full power to order the work to be done and proceeded regularly. The expense of the improvement was fixed in accordance with the statute at $19,420. It seems that, under the defendant's charter, when the expense of an improvement exceeds $20,000, and is to be paid by local assessment, the money is payable by the property owner in five annual installments. The finding of the trial court is that the assessors, in order to bring the assessment within the provision of the charter, at the instance and request of some person unknown, prepared the roll in the following manner: They first entered upon the roll against each parcel of property included within the district the proper sum or the ratable part of the whole expense as fixed according to law. Thus far they proceeded regularly, and their work was not affected by any jurisdictional or other error. But this distribution did not bring the total up to the required amount, in order to come within the provisions of the charter referred to authorizing payment in five installments, and so the assessors, at the suggestion of some person not identified by the proofs, proceeded to add to the assessment on the plaintiff's property the sum of $581, thus making the total just one dollar more than the limit in the charter.