N. Y. Rep.]

Opinion of the Court, per BARTLETT, J.

one Henry H. Bush, and offered same in payment for certain goods purchased of Cole.

The defendant demurred to the indictment upon the ground that more than one crime was charged therein. The demurrer was overruled and defendant required to plead, and we think properly. It is true the statute (Code of Criminal Procedure,

278, 279) provides that the indictment must charge but one crime and in one form, except it may charge in separate counts the crime to have been committed in a different manner or by different means. We do not think this enactment in the Code of Criminal Procedure laid down a new rule, but was merely a codification of the existing law.

The Penal Code makes both the forging of an instrument (511) and the uttering thereof, knowing it to be forged (521), forgery in the second degree.

It may well be that one person may forge the instrument and another utter it, and it is evident that both acts should be deemed equally criminal.

In the indictment now before us the crime charged was the forgery of the indorsement of H. H. Bush, with the intent to defraud Rufus M. Cole. It charges but one offense, and contains only the plain and concise statement of the act constituting the crime which the statute requires. (Code of Criminal Procedure, § 275.)

The allegation that the defendant offered the check with the forged indorsement thereon to Cole in payment for goods purchased does not charge a separate offense, refers to one transaction, and avers a fact which the People were bound to prove before they could convict.

There is nothing in the previous decisions of this court laying down a different rule of criminal pleading.

The counsel for the defendant referred to two cases.

In People v. Tower (135 N. Y. 457) the only point decided was that assuming the offenses of forgery and uttering the forged instrument could not be united in the same indictment the remedy is by demurrer, and where not so taken the objection is waived.

Opinion of the Court, per BARTLETT, J.

[Vol. 147.

In People v. Adler (140 N. Y. 331) the defendant was charged with the crime of forgery in the second degree, and the first count in the indictment charged him with forging a certain written instrument set forth, while the second count charged him with uttering it.

The defendant demurred and the demurrer was overruled; this court sustained the ruling.

It may very well happen that when the district attorney is drawing an indictment for forgery in the second degree he may be in doubt as to whether he can prove the forging, or the uttering, and it would be prudent and proper pleading to set forth the offense in two counts as in People v. Adler.

But in the case at bar the offense charged was, as already pointed out, the forging of an indorsement with the intent to defraud a certain person by offering it to him in payment for goods purchased, and there is nothing in either of the cases cited rendering it improper to set forth such a state of facts in one count of the indictment.

While we have reached the conclusion that this conviction must be reversed upon other grounds, we have dealt at length with the question presented on the demurrer to the indictment in order to settle a point of criminal pleading about which some confusion seems to exist.

When the prisoner was arrested the sheriff searched him and found upon his person not only the forged check and indorsement which are set forth in the indictment, but sundry

other papers.

One paper purported to be the check of W. B. Miller, dated at Hudson, N. Y., September 6, 1894, drawn on the Farmers' National Bank for one hundred dollars and indorsed by H. H. Busch, being the same indorsement as appears upon the check set forth in the indictment. Another paper purported to be the check of W. B. Young, dated at Glens Falls, September 6, 1894, drawn on the Glens Falls National Bank for one hundred dollars; this check bore no indorsement.

Another paper contained nothing but the letters and word "II. H. Bush."

N. Y. Rep.] Opinion of the Court, per BARTLETT, J.

In addition to the above there were six blank checks, Merchants National Bank, Glens Falls, N. Y.; two on First. National Bank, Saratoga Springs, N. Y.; one, Farmers' National Bank, Hudson, N. Y.

At the trial the district attorney offered in evidence the instrument set forth in the indictment and which had been tendered by the defendant to Rufus M. Cole in payment for goods and the indorsement upon which had been proved a forgery.

While this paper was found upon the person of the defendant it was material, was fully proved and properly received, notwithstanding the objections of the defendant.

Thereupon the district attorney offered in evidence the other papers found on the person of the defendant and which we have already described, without giving any proof as to their handwriting or as to whether they were genuine or forged.

The defendant's counsel objected in these words, viz.: "Defendant objects as immaterial and not set out in the indictment and incompetent."

The record then states:

"Objection overruled and papers received in evidence as marked as bearing upon the question of the intent with which the act was committed. Exception to the defendant."

These papers were exhibited to the jury, and it may very well be that the two checks duly filled out and already described were regarded by them as other instruments forged by the defendant, although no proof as to their character had been offered.

There was no attempt to bring the case within the rule laid down by this court, that upon the trial of an indictment for forgery by uttering a forged check, and as bearing upon the question of guilty knowledge of defendant, it is competent to prove the uttering by him of other forged checks upon other occasions. (People v. Everhardt, 104 N. Y. 591.)

It is impossible to say that the defendant was not prejudiced by these papers admitted against his objection. The

147 478 155 471

147 478 156 349 147 478

167 68 167 347

147 478 170 133

rule that an error committed upon a trial may be overlooked
when the party complaining was not prejudiced thereby is
only applicable in cases where the error could by no possibility
have produced injury. (Stokes v. People, 53 N. Y. 164.)
We think the papers were clearly incompetent evidence,
and their admission was error, and the judgment of convic-
tion should be reversed.

The judgment should be reversed and a new trial ordered.
All concur.

Judgment reversed.

EUGENE H. LADD and WILLIAM E. SMALLMAN, Respondents, v. ETNA INSURANCE COMPANY, Appellant.

FIRE INSURANCE — MANUFACTURING ESTABLISHMENT - CESSATION OF OPERATION. A mere temporary cessation of the operation of the machinery in a manufacturing establishment (as, e. g., a water-power saw mill) by reason of sickness, break down, low water or other unavoidable cause, without any intention on the part of the insured to cease operating or to allow the premises to become vacant or unoccupied, is not of itself to be deemed a violation of the provisions of a fire insurance policy avoiding it in case the establishment ceased to be operated for more than ten consecutive days, or became vacant or unoccupied, and so remained for ten days. Reported below, 70 Hun, 490.

(Argued October 31, 1895; decided November 26, 1895.)

APPEAL from order of the General Term of the Supreme Court in the third judicial department, made July 8, 1893, which reversed a judgment in favor of defendant entered upon a verdict directed by the court and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

A. H. Sawyer for appellant. Under the condition of the policy rendering the same void if the subject of insurance be a manufacturing establishment, and it cease to be operated for more than ten consecutive days, there was no question whatever to submit to the jury. (Lovell Co. v. Houghton, 116 N.

Y. 529; Hall v. Stevens, 116 N. Y. 210; Dwight v. G. Ins. Co., 103 N. Y. 341, 358; Wells v. World's Assn., 120 N. Y. 631; Linkhauf v. Lombard, 137 N. Y. 417, 426; Cutter v. Morris, 41 Hun, 575; Deyo v. N. Y. C. R. R. Co., 34 N. Y. 1, 13; Lomer v. Meeker, 25 N. Y. 361; Weed v. Ins. Co., 70 N. Y. 563; Wilds v. H. R. R. R. Co., 24 N. Y. 430; Appleby v. A. Ins. Co., 54 N. Y. 253; T. G. C. Co. v. Smith, 110 N. Y. 87; Wyllie v. Palmer, 137 N. Y. 253; Groat v. Gile, 51 N. Y. 431, 441; St. Luke's Home v. Association, 52 N. Y. 191; Glacius v. Black, 67 N. Y. 563, 567; Blossom v. L. Ins. Co., 64 N. Y. 162.) The policy became void prior to the fire by reason of the mill having ceased to be operated for more than ten consecutive days. (Stone v. H. Ins. Co., 153 Mass. 475; Conlin v. W. A. Co., 57 Md. 515; Day v. M. 0. M. F. Ins. Co., 70 Iowa, 710; Laws of 1886, chap. 486; Laws of 1892, chap. 690, § 121; Quinlan v. P. W. Ins. Co., 133 N. Y. 366.) The sawing of the two logs, three days before the fire, did not constitute an operation of the mill; nor did it relieve the plaintiffs from the forfeiture which had previously occurred. (Mead v. N. W. Ins. Co., 7 N. Y. 530, 535; I. F. Ins. Co. v. Coos County, 151 U. S. 452; Kyte v. C. U. A. Co., 149 Mass. 116; Moore v. P. Ins. Co., 62 N. H. 240; Ferree v. O. F. & L. Ins. Co., 67 Penn. St. 373.) The policy of insurance in this case is not severable. (Stone v. H. Ins. Co., 153 Mass. 475.) The plaintiffs are not mortgagees and have no interest in the insurance herein except through King & Trushaw to whom the policy had been transferred. (Grosvenor v. A. Ins. Co., 17 N. Y. 391; Lasher v. St. J. F. & M. Ins. Co., 86 N. Y. 423; Perry v. L. F. Ins. Co., 61 N. Y. 214; Weed v. L. & L. Ins. Co., 116 N. Y. 106; Moore v. II. F. Ins. Co., 141 N. Y. 219.) There are no equities in this case in favor of the plaintiffs. (Mack v. R. Ins. Co., 106 N. Y. 565.)

John P. Kellas for respondents. Upon this appeal the evidence and inferences to be drawn therefrom must be construed most favorably to plaintiffs; and any fact the jury