Court of Gen. Sessions, N. Y. County, April, 1921.

Misc.] crime of subornation of perjury is dearly in its nature that of an accessory before the fact to the perjury. Both perjury and subornation are felonies under our statute, being punishable by imprisonment in the State prison. Whoever procures a felony to

be committed, though it be by the intervention of a third person, is an accessory before the fact, for it is not necessary that there should be any direct communication between the accessory and the principal.

And the accessory is a felon, though his felony is different in kind from that of the principal. So it is said to be a principle in law which can never be controverted, that he who procures a felony to be done is a felon. We cannot see that the appli'cation of these principles is changed when the crime of the accessory before the fact is made by statute a substantive felony. The object of making it a substantive felony may be either to provide a distinct or milder punishment upon conviction, or to authorize the indictment and conviction of the accessory where the principal has not been convicted.'

"In People v. Evans (40 N. Y. 1) it was held that the subornation of perjury may not be proved by the uncorroborated testimony of the person suborned, and in People v. Gilhooley (108 App. Div. 234; affd., 187 N. Y. 551) it was assumed that the perjurer was the accomplice of the suborner."

From these cases it is apparent that it does not necessarily follow, because a witness who committed certain acts cannot be convicted of the precise crime as the person with whom he was concerned in the commission of a crime, he is not to be deemed an accomplice. This theory has also been exploded with respect to the relationship between a thief and the receiver. Larceny and criminally receiving stolen property are separate and distinct crimes, and still

Court of Gen. Sessions, N. Y. County, April, 1921. [Vol. 115. the courts have held that the thief is an accomplice of the receiver. People v. Willard, 159 App. Div. 19; People v. Markus, 168 id. 184; People v. Kudon, 173 id. 342.

The third count of the indictment would be valid if the proof established that the police officers and the defendant had not entered into a conspiracy to violate the law. The fact that the defendant, by means of a threat, procured the police officers to violate their duty, does not relieve them from being accomplices in the crime charged under section 1841 of the Penal Law. It, therefore, makes no difference that the police officers could not be prosecuted under section 1824 of the Penal Law, since the defendant, as has already been shown, could be indicted under section 2 of the Penal Law, as a principal in the crime committed by the police officers, and they, in turn, could also be indicted for aiding and abetting the defendant in the crime committed by him. Penal Law, § 1841.

The next question to be determined is whether there was any evidence corroborating the testimony of police officers Wheelwright and Sorger to have warranted the grand jury in returning an indictment against the defendant. I have carefully read the testimony of police officer Cushing and I fail to find anything in his testimony which in the slightest degree tends to corroborate his brother officers.

The Code of Criminal Procedure expressly provides that: "A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime." Code Crim. Pro. § 399. It also provides that an indictment should not be found by the grand jury unless "all the evidence before them, taken together, is such as in their judg

Misc.] Appellate Term, First Department, April, 1921.

ment would, if unexplained or uncontradicted, warrant a conviction by the trial jury." § 258.

It is manifest, therefore, that if the only testimony before the grand jury is the testimony of accomplices, it cannot be said to be sufficient, if unexplained or uncontradicted, to warrant a conviction by the trial jury. People v. Sweeney, 213 N. Y. 37,

42.

These considerations lead me to the conclusion that the case against the defendant rests entirely upon the uncorroborated testimony of two accomplices and that the grand jury, therefore, was not justified in presenting the defendant for trial.

The motion of the defendant to set aside the indictment is granted, but with leave to the district attorney to resubmit the charges to the same or another grand jury.

Motion granted.

SYLVAN MORTGAGE CO., INC., Appellant, v. Albert M. STADLER, Respondent.

(Supreme Court, Appellate Term, First Department, February Term Filed April, 1921.)

Landlord and tenant

sustained

- pleading — when allegation of duress not - Laws of 1920, chap. 136.

The authority of the judicial decisions that chapter 136 of the Laws of 1920 has no application to leases made prior to April 1, 1920, has not been affected by the decision in People ex rel. Durham Realty Corp. v. LaFetra, 230 N. Y. 429. (P. 313.)

While a two years' lease was still subsisting, the parties on March 25, 1920, entered into a new lease for a like term, to commence at the expiration of the old lease but at an increased rental. In an action to recover the first month's rent under the new lease the answer, besides alleging that the rent demanded was unjust and unreasonable, and that the agreement under

Appellate Term, First Department, April, 1921.

[Vol. 115.

which recovery was sought was oppressive, contained allegations to the effect that the new lease was executed under duress. Held, that a judgment in favor of defendant could be sustained only upon proof that he was entitled to be relieved of his obligations under the new lease because it was obtained by duress on the part of the landlord. (P. 314.)

In the absence of proof that the landlord could not have obtained from other persons the same rental as he exacted from defendant, or that he derived any special advantage from making a contract with defendant instead of with another, he was not even bound to first give defendant an opportunity to renew his lease upon any terms. (P. 316.)

Under the circumstances disclosed by the evidence, allegations of the answer to the effect that the new lease was executed under duress held not to have been sustained and the judgment in favor of defendant dismissing the complaint will be reversed and judgment directed for plaintiff for the amount claimed. (P. 320.)

APPEAL by the plaintiff from a judgment of the Muncipal Court of the city of New York, borough of Manhattan, fifth district, rendered after a trial without a jury, dismissing the complaint.

Herman C. Rubino (Franklyn M. Silverstein, of counsel), for respondent.

Katz & Levy (Charles Weishaupt, of counsel), for appellant.

Lewis M. Isaacs, Amicus Curia, on behalf of Apartment House Association, Inc.

LEHMAN, J. On March 25, 1920, the parties entered into a written agreement whereby the plaintiff leased to the defendant an apartment for the term of two years beginning October first, the date of the expiration of the term granted in a previous lease to the defendant. The rent reserved in the old lease was $1,300 per annum and under the terms of the new

Misc.]

Appellate Term, First Department, April, 1921.

lease the defendant agreed to pay a rental of $2,500. The plaintiff now brings this action to recover the first month's rent payable under the lease of March 25, 1920. The answer alleges that the rent to recover which this action is brought is unjust and unreasonable and that the alleged agreement under which the same is sought to be recovered is oppressive" and also contains allegations which are intended to show that the lease was executed under duress.

The learned trial justice has held that the defendant cannot interpose the defense authorized by chapter 136 of the Laws of 1920, that the rent is unjust and unreasonable and that the agreement under which the same is sought to be recovered is oppressive for the agreement in this case was made prior to the time when the statute went into effect, but he has given judgment for the defendant upon the ground that the lease was procured by duress.

The courts have hitherto decided that chapter 136 of the Laws of 1920 has no retroactive application to leases made prior to the 1st day of April, 1920. Paterno Inv. Corp. v. Katz, 112 Misc. Rep. 242; affd., without opinion, 193 App. Div. 897; 78th Street & Broadway Co. v. Rosenbaum, 111 Misc. Rep. 577. The recent decision of the Court of Appeals in the case of People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429, has not affected the authority of these cases. It is true that the Court of Appeals has held that the legislature had the power to take away the remedy of the landlord to enforce an expressed or implied obligation of the tenant to surrender possession at the expiration of the term, even though in a sense the obligation of a contract is thereby impaired, but it has not intimated that the provisions of chapter 136 of the Laws of 1920 were intended to be applicable to leases made before the passage of that act, or that the