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where liquor is sold. They are required, during the hours and days when sales are made unlawful, to keep the places of sale open to the public view, so if the vendor violates the law he may be detected. The validity of this regulation has never been questioned. So, also, a requirement that vendors shall report the sales of liquor and exhibit their books showing such sales has been held not to violate the privilege against self-incrimination. State v. Smith, 74 Iowa, 580, 38 N. W. 492; State v. Cummins, 76 Iowa, 133, 40 N. W. 124; People v. Henwood, 123 Mich. 317, 82 N. W. 70.

claim his privilege. I also appreciate that the right to justify a disobedience of this statute by proof that the circumstances rendered him liable to criminal prosecution would be of little advantage to the defendant. He would acquit himself of one crime only by convicting himself of another. Nevertheless, when we bear in mind not only the great danger occasioned by the use of motor vehicles, but also the fact that the great speed at which they can be run enables the person causing injury to readily escape undetected, leaving parties injured in person or property unable to tell from whom they shall get redress, I think it involves no violation of public policy or of the principles of personal liberty to enact that, as a condition of operating such a machine, the operator must waive his constitutional privilege and tell who he is to the party who has been injured or to the police authorities, if indeed, requiring him to give such information is an impairment of his constitutional privilege,

which we do not decide.

The judgment of the Appellate Division and that of the Court of General Sessions should be reversed, and judgment rendered for the people, disallowing the demurrer, with permission to the defendant, at his election, to plead to the indictment.

HOGAN, J. (dissenting). The statute under consideration requires a person operating a motor vehicle, knowing that injury has been done to a person due to the culpability of the operator, to stop and give his name and residence, including street, and street number, and operator's license number, to the injured party, or to a police officer, or in the absence of a police officer to make a report to the nearest police station or judicial officer. A failure to comply with the statute is made a felony.

[4] The learned counsel for the respondent cites in support of his position the opinion of O'Brien, J., in Matter of Peck, 167 N. Y. 391, 60 N. E. 775, 53 L. R. A. 888. But that opinion, so far as it discusses the question here involved, received the approval of no other member of the court. See erratum in vol. 168 N. Y. It is not necessary to discuss at length the history and nature of the constitutional inhibition against being compelled to testify against oneself in a criminal case. That subject has received a most elaborate review in the opinion rendered by Mr. Justice Moody in the Supreme Court of the United States in Twining v. New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97. It is sufficient to say that to permit its voluntary waiver violates no fundamental guaranty of liberty or personal right. On the contrary, since 1869 in this state, and I think now throughout the whole country, a defendant in a criminal case is permitted to testify in his own behalf; but when he does so he waives his constitutional privilege, and his examination is subject to the same rules as any other witness, and his guilt or bad character may be proved from his own mouth. Brandon v. People, 42 N. Y. 265; Connors v. People, 50 N. Y. 240; People v. Webster, 139 The indictment demurred to alleges that N. Y. 73-84, 34 N. E. 730; People v. De the defendant, while operating a a motor Garmo, 179 N. Y. 130-134, 71 N. E. 736; vehicle, did run into and strike a carriage in People v. Hinksman, 192 N. Y. 421-433, 85 which two ladies were riding, which said runN. E. 676. Moreover, as already said, the ning into and striking was due to the culpabiloperator is not obliged to report the circum-ity of the defendant, and which resulted in stances from which his culpability may be inferred, and if he be culpable it does not necessarily follow that he has been guilty of a crime. A long distance separates the negligence which which renders one criminally liable from that which establishes civil liabil- If the charge alleged in the first count of ity. That a defendant can be compelled as the indictment were established, the defenda witness to testify to facts establishing his ant might be convicted of a homicide (Pecivil liability is unquestionable. This statute nal Law, § 1052), and he would also be does not prescribe any new criminal liability subject to indictment and conviction for a for injury to persons by a motor vehicle. The felony for the failure to furnish evidence operator commits a crime only when his con- which might tend to connect or identify him duct is such as would, in any other action on with the homicide by the statute here conhis part producing like results, make him a sidered. From the prevailing opinion I criminal. The primary object of the statute, quote the following language: "Undoubtedly in my judgment, is not to convict any person it (the statute) does require him (the operaof crime, but to subject him to civil liability. tor) to make known a fact which will be a I appreciate that when examined as a wit- link in the chain of evidence to convict him

the death of one of the ladies and serious injuries to the second lady. A second count of the indictment states the same facts except that the running into and striking was an accident.

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any." For that reason stated, it is my judg-| 195, 35 L. Ed. 1110; People v. Sharp, 107 N. ment that the statute under consideration is in conflict with section 6 of article 1 of the Constitution, which provides that "no person shall be compelled in any criminal case to be a witness against himself."

In People ex rel. Lewisohn v. O'Brien, 176 N. Y. 253, 264, 265, 68 N. E. 353, 356, Judge Edward Bartlett, writing, quotes the language of Chief Justice Marshall in the Circuit Court of the United States for the District of Virginia (June, 1807) in Burr's Trial (1 Burr's Trial, 244), on the question whether a witness was privileged not to accuse himself, as follows: "If the question be of such a description that an answer to it may or may not criminate the witness according to the purport of that answer, it must rest with himself, who alone can tell what it should be, to answer the question or not. If in such a case he may say upon his oath that his answer would criminate himself, the court can demand no testimony of the fact. According to their statement (counsel for the United States) a witness can never refuse to answer any question, unless that answer, unconnected with other testimony, would be sufficient to convict him of crime. This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible, but a probable case, that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would be stating every circumstance which would be required for his conviction. That fact of itself might be unavailing, but all

Y. 427, 14 N. E. 319, 1 Am. St. Rep. 851; People ex rel. Ferguson v. Reardon, 197 N. Y. 236, 90 N. E. 829, 27-L. R. A. (N. S.) 141, 134 Am. St. Rep. 871.

While the defendant in the case at bar might waive a constitutional provision, and incriminate himself, the Legislature is powerless to enact a law which will require him to waive such a provision involving his personal liberty as a condition precedent to operating a motor vehicle upon the highway. While the conduct of an operator of a vehicle, in the failure to stop and render aid to an injured party, is to be deplored, the remedy here sought to correct the evil is an infringement upon the rights of individuals protected by the Constitution. Such rights it is the duty of courts to preserve, though the legislation may seem desirable to meet certain cases. Wright v. Hart, 182 N. Y. 330, 333, 75 N. E. 404, 2 L. R. A. (N. S.) 338, 3 Ann. Cas. 263; Matter of Sherrill v. O'Brien, 188 N. Y. 185, 198, 81 N. E. 124, 117 Am. St. Rep. 841; Ives v. South, Buffalo Railway Co., 201 N. Y. 271, 94 N. E. 431, 34 L. R. A. (N. S.) 162, Ann. Cas. 1912B, 156.

The judgment should be affirmed.

WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur with CULLEN, C. J. HOGAN, J., reads dissenting opinion.

Judgment accordingly.

(208 N. Y. 367) OBERNDORF v. FARMERS' LOAN & TRUST CO. et al. (Court of Appeals of New York. May 13, 1913.)



Testator gave property in trust to pay a part of the income to his son for life "for the benefit of himself and family" and provided that on the death of the son without issue the surviving widow should receive the income for life. The son and his wife separated and the tees should pay to her $1,000 a year of the inagreement of separation provided that the truscome. There were no children of the marriage. Held that, independent of the separation agreement, the son received the income under a trust in part for the support of his family, which included his wife, and the wife could sue to compel an appropriation of the income for her benefit by showing that she required support from her husband but received none.

other facts without it would be insufficient. While that remains concealed within his own bosom he is safe, but draw it from thence and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description. What testimony may be possessed, or is obtainable, against any individual, the court can never know. It would seem, then, that the court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws." Judge Bartlett continued: "A clearer and more cogent statement of the rule it would be difficult to find." This language adopted by this court would seem to cover the case at bar. The principle therein laid down, it seems to me, has been upheld in other cases. People ex rel. Taylor v. Forbes, 143 N. Y. 219, 38 N. E. 303; Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct.

Dig. § 510; Dec. Dig. § 345.*] [Ed. Note.-For other cases, see Trusts, Cent.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Minnie G. Oberndorf against the Farmers' Loan & Trust Company and others for the construction of a will. From a judgment of the Appellate Division (148 App. Div. 227, 132 N. Y. Supp. 1004) reversing a judg

ment for plaintiff, she appeals. Modified and questions of law" only, and the complaint affirmed.

I. N. Jacobson, of New York City, for appellant. Russell Lord Tarbox, of New York City, for respondents.

was dismissed. Mr. Justice Dowling, who spoke for the court, considered that the plaintiff's contention should be decided solely by reference to the provisions of the will. Construing those provisions, he reached the conclusion that the trustees had no discretionary powers in the application of the income, and as the wife was not named as a beneficiary, except in the event of her husband's death, that she was in no position to maintain such an action, whatever might be her rights to support out of her husband's income. While the view of the testamentary authority of the trustees in their application of the income was correct, we think that it does not follow that the court was without jurisdiction to direct the appropriation, in part, of the income to the plaintiff's benefit upon proof that her husband had refused to contribute to her support.

GRAY, J. The plaintiff, as the wife of the beneficiary of a trust created by the will of Julius Oberndorf, deceased, brought this action to obtain a judicial construction of the will and to have it adjudged that the trustees thereunder pay to her annually $1,000 from the income of the trust fund. The following facts have been found and may be regarded as established: The plaintiff was married to the defendant, William D. Oberndorf, in 1893. In 1895 his father, Julius Oberndorf, died and by his will gave his residuary estate to trustees. One of the purposes of the testamentary trust was contained in the following provision: "I authorize and direct my said executors and trustees to pay out of the trust fund an equal one-half part of the net income of my said residuary estate to my son, William D. Oberndorf, during the period of his natural life, for the benefit of himself and his family, and that the said one-half part of the income of my said residuary estate be paid to him in equal quarter-yearly installments on the first days of January, April, July and October." Provision was made, upon the death of his son, that the income should be paid to his "lawful heirs" until they respectively arrived at the age of 40 years, when they were to receive, each, his share of the principal, and, in the event of there being no lawful issue, that the income and principal should go to certain grandchildren, nephews, and nieces in the same manner as provided for William's issue. By a codicil to his will, the testator directed the trustees "to pay over the income to the wife of my son, William, during the pendency of her natural life, in the event of the death of my said son William, no children him surviving." There were no children of the son's marriage with the plaintiff and some years after the death of the testator, in September, 1907, they separated; the marriage, however, still continuing in full force and effect. Subsequently to their separation, the plaintiff's husband, by an instrument in writing, authorized the trustees to pay over to the plain- the trustees of the trust fund in such wise as tiff the sum of $250 quarter-yearly. Later this authorization was formally revoked by him, whereupon the trustees discontinued making any payments to the plaintiff. Upon finding these facts, the court, at Special Term, directed judgment for the relief demanded by the plaintiff, holding that she, as "William D. Oberndorf's only 'family,'" is entitled to maintain the action to establish her right to a portion of the income. There was no finding, however, that the plaintiff's husband refused to support her. On appeal to the Appellate Division, the judgment re

The direction to the trustees is to pay the half of the net income "to my son, William D. Oberndorf, during the period of his natural life, for the benefit of himself and his family." It was held below, correctly, and it is expressly conceded here by the respondent, Oberndorf, that his wife constituted his "family," within the meaning of the term. There was no discretion in the trustees with respect to the payment of the trust income to the beneficiary named; but the words "for the benefit of himself and his family" are explanatory of a testamentary purpose, which a court of equity may enforce, upon it being made to appear that that purpose is nullified by the beneficiary's conduct. He takes the income under a trust and will not be allowed to defeat a provision, which was intended to be, in part, for the support of his family. The beneficial gift of the testator was to assist him in that respect, and he had recognized his wife's claim to be supported, after they agreed to live separately, by authorizing the trustees to pay her $1,000 a year. In intervening to enforce a due appropriation of a part of the trust income to the plaintiff, a court of equity, so far from acting in any wise in contravention of the testator's intention, would be maintaining it. The exceptional circumstances of the case would justify its interference to control the application by

to effectuate the testamentary provision. Oberndorf was not solely interested in the trust estate; he was clothed with a power, in respect thereof, for the benefit of another, his wife, as well as of himself; and he will not be allowed to escape the performance of a duty, which, the receipt of the trust income carries with it. See Ireland v. Ireland, 84 N. Y. 321; Haynes v. Sherman, 117 N. Y. 433, 22 N. E. 938; Chase v. Chase, 2 Allen (Mass.) 101, and cases cited in Perry on Trusts, § 117.

We think the reversal by the Appellate Division of the Special Term judgment to have

have been dismissed. While there was no evidence that the plaintiff's husband refused to support her, and there is no finding upon the subject, such evidence may be supplied upon a new trial. The plaintiff would only be entitled to the intervention of the court to compel an appropriation of the trust income for her benefit in the event of her affirmatively showing that she required and failed to receive support from her husband. In this action all the parties to be affected are before a court with equity powers, whose jurisdiction is ample and general over trusts and trustees. No other action, therefore, need be instituted. The plaintiff's demand in her complaint to have it adjudged that the trustees apportion to her annually $1,000 of the trust income could not be allowed as a matter of bare right thereto. The agreement of separation between the parties gave no right to such an appropriation. It will have to appear that she was not receiving that support from her husband, which the testator intended by the trust provision to assist him in rendering.

provide statutory barriers as actionable negli-
gence, which would justify a recovery.
Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-
[Ed. Note.-For other cases, see Master and
1015, 1017-1033, 1036-1042, 1044, 1046-1050;
Dec. Dig. § 286.*1

Appeal from Supreme Court, Appellate Division, First Department.

Action by Ruth A. Egan, as administratrix of the goods, chattels, and credits of Edward Egan, deceased, against the Thompson-Starrett Company. From a judgment entered on an order of the Appellate Division (153 App. Div. 891, 137 N. Y. Supp. 1119), affirming, by divided court, the judgment of the trial court entered on a verdict for plaintiff, defendant appeals.


James J. Mahoney, of New York City, for appellant. Francis X. McCollum, of New York City, for respondent.

HOGAN, J. In April, 1911, the defendant was engaged in the erection of a municipal building in the city of New York. In the course of the work defendant had construct

For these reasons the judgment of the Ap-ed elevator shafts, and in such shafts, known pellate Division should be modified so as to direct a new trial of the action, and, as so modified, it is affirmed, without costs to either party.

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as Nos. 3 and 4, hoist elevators were in use for the purpose of the delivery of materials to the floors where the same were required to be used. The two wells or shafts were side by side. On the tenth floor of the build

CULLEN, C. J., and WILLARD BART-ing, on the easterly and westerly sides, the LETT, CHASE, CUDDEBACK, HOGAN, and shafts were protected by boards securely MILLER, JJ., concur.

Judgment accordingly.

(209 N. Y. 110)

EGAN V. THOMPSON-STARRETT CO. (Court of Appeals of New York. June 17, 1913.)



fastened, and on the northerly and southerly sides defendant had placed a plank extending across the opening of both shafts which was attached to the framework of the shafts with a clamp and a slot to raise and lower the same. The plank could be raised to a height of six or seven feet when necessary to remove materials from the hoist elevator. When lowered the plank rested at a height of 32 feet above the place where the floor was to be laid. On the day in question the hoist in shaft No. 3 had been running to the Labor Law (Consol. Laws 1909, c. 31) § eleventh floor for about one hour prior to the 20, provides that, if elevators are used in the accident. The hoist in shaft No. 4 was emconstruction of a building, the shafts must be fenced by a barrier at least eight feet in height, ployed in carrying materials to the tenth except on two sides, which may be used for floor, and a signal man in charge of the latter taking off or putting on materials, and which shaft was employed on that floor. The plank may be guarded by an adjustable barrier. Two elevator shafts were maintained in a building guard was raised to a height of about six in process of construction by defendant and feet. The plaintiff's intestate, an ironworker, used for hoisting material. On the tenth floor in the employ of defendant, was at work on the east and west sides were protected by the tenth floor of the building engaged in boards, and on the north and south sides defendant had placed a plank across the opening placing a nut on a tie rod in the shaft No. 3. of both shafts which was attached to the frame- His hand was underneath the iron beam adwork of the shafts with a clamp and a slot to jacent to the well, and his head and shoulraise or lower the same. Plaintiff's intestate, an ironworker, was placing a nut on a tie rod ders protruded into the shaft. While in that in one of the shafts so guarded, his head and position the hoist in shaft No. 3 descended shoulders protruding into the shaft. While and struck him, and the injuries received in this position the hoist descended, and struck him. Held that, since the failure of the barrier to comply with the statute had no relation to the accident in view of the fact that the work on which decedent was engaged necessitated his presence inside any barrier that

by him resulted in his death immediately thereafter. This action was brought to recover damages occasioned by his death. Upon the trial the defendant did not intromight have been erected under the statute, it duce any evidence, a verdict was rendered in was error to submit defendant's failure to favor of the plaintiff, and the judgment

thereon was affirmed by the Appellate Divi- height in extending his body out into the sion by a divided court. shaft, to which modification counsel for the defendant excepted.

The plaintiff asserted that defendant was guilty of negligence among other reasons for a failure to comply with section 20 of the Labor Law (Consol. Laws 1909, c. 31), which provides, in substance, that, if elevators or elevating machines or hoisting apparatus are used within a building in the course of construction, the contractors or owners shall cause the shafts or openings in each floor to be inclosed or fenced in on all sides by a barrier at least eight feet in height, except on two sides, which may be used for taking off or putting on materials, and those sides shall be guarded by an adjustable barrier not less than three or more than four feet from the floor, and not less than two feet from the edge of such shaft or opening.

What precautions, if any, were taken by defendant to warn plaintiff's intestate of the descent of the hoist the record does not disclose. There was evidence tending to show that the barrier at shaft No. 3 was only six inches from the opening into the shaft, and it was also claimed by plaintiff that the statute contemplated a separate guard for each shaft, and that only one plank was used to guard the opening of the two shafts.

The trial justice called the attention of the jury to the statute in question and the alleged violation of the same by the defendant and left it to the jury to determine as a question of fact whether or not the barrier was

constructed and arranged in accordance with the terms of the statute and was a substantial compliance therewith. He also charged the jury that if they were satisfied that the arrangement and construction of the barrier was negligent, and that such negligence was the proximate cause of Edward Egan's death, then they might find for the plaintiff on that particular point providing the plaintiff's intestate himself was free from negligence which contributed to the accident. The court refused to charge the defendant's request (No. 10), which was as follows: "No violation of section 20 of the Labor Law relative to guarding the shaft, even if one be found, was the proximate cause of the accident," to which exception was taken by the defendant.

Counsel for the defendant also took exception to the court's charge in submitting the question to the jury whether or not there was a violation by the defendant of section 20 of the Labor Law and permitting the jury to find, if they found a violation of that section, that there was negligence upon the part of the defendant upon which a verdict might be based. The court modified his instructions to the jury by saying that the jury might consider that evidence in determining whether the deceased was justified from the absence of the barrier at the 32 feet

Whether the barrier was or was not a compliance with the statute could not have any relation to the accident. If the barrier had been in strict compliance with the provisions of the Labor Law the accident might have resulted, as a safety device could not afford protection to the deceased in view of the fact that the work on which he was engaged necessitated his presence upon the very edge of the shaft inside any barrier which might be erected pursuant to the provisions of the statute. As the jury might have decided the case upon this erroneous theory, we deem it sufficient error for a reversal of the judgment and the granting of a new trial, costs to abide event.

CULLEN, C. J., and WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur; WERNER, J., concurs in result.

Judgment reversed, etc.

(209 N. Y. 12)


(Court of Appeals of New York. June 3, 1913.) 1. ASSIGNMENTS (§ 49*)-BANKS AND BANKING ($ 139*)-PAYMENT OF CHECKS-OBLIGATION TO PAYEE.

A check upon a bank is a mere order for the payment of money, not operating as an assignment of the fund, and may be revoked by the drawer.


[Ed. Note.-For other cases, see Assignments, Cent. Dig. 88 85-98; Dec. Dig. § 49; Banks and Banking, Cent. Dig. §§ 406-409; Dec. Dig. § 139.*

For other definitions, see Words and Phrases, vol. 2, pp. 1109-1112; vol. 8, p. 7600.] 2. BANKS AND BANKING_(§ 139*)—PAYMENT OF CHECKS-DEATH OF DRAWER.

The death of the principal revokes the authority of the payee to collect a bank check. Banking, Cent. Dig. §§ 406-409; Dec. Dig. § [Ed. Note.-For other cases, see Banks and 139.*1



The death of a principal revokes the agent's power, even as to persons dealing with him in good faith without knowledge of the principal's death, which is an exception to the general rule that the revocation of the agent's authority does not affect third persons dealing with him in good faith and without notice. Agent, Cent. Dig. §§ 67-71; Dec. Dig. § 43.*] [Ed. Note.-For other cases, see Principal and 4. BANKS AND BANKING (§ 139*)-PAYMENT OF CHECKS-DEATH OF DRAWER-PAYMENT WITHOUT NOTICE.

The rule that an agent's authority is revoked by the death of the principal without by a bank without knowledge of the drawer's notice does not apply to the payment of a check death; since such an application would be ut

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