cident, in the manner pointed out in the evidence, would not of itself entitle the plaintiff to a recovery as a matter of law. The negligence of the defendant may not have been such as to impose a liability upon the defendant, but it did present a question of fact for the jury, whether the cars were operated in a reasonably prudent manner, and the failure of the defendant to make any explanation of the accident would warrant a jury in finding that the defendant did not exercise that degree of care which the circumstances demanded. The court in the Griffen Case, supra, quote the language of a Maryland case, that "this phrase [res ipsa loquitur], which literally translated means that the thing speaks for itself,' is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as the cause of that accident." While this negligence might not be of a degree to impose a liability under all circumstances, it yet affords some evidence of negligence, which, in the absence of any explanation on the part of the defendant, would support a verdict for the plaintiff, under a proper charge as to the degree of care which the defendant owed under the circumstances. The exceptions should be sustained, and a new trial granted, costs to abide the event. All concur. RAYNOR v. BUTTLAR. (Supreme Court, Appellate Term. February 23, 1904.) 1. CONTRACTS-SHARING OF LOSSES-COLLECTOR-DILIGENCE. Plaintiff was employed by defendant under a contract that plaintiff should stand a third of all loss on customers procured by him. A cus tomer procured by plaintiff went into bankruptcy while indebted to defendant, and, in an action by plaintiff, he claimed that he should not stand a third of that loss, for the reason that he had, after leaving defendant's employ, sought permission to collect the claim, which was refused. Defendant showed that he had used diligence to collect it, and there was no evidence that plaintiff could have obtained any better results than defendant did. Held, that it was proper to charge plaintif with one-third of the loss. Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by Charles N. Raynor against Robert Buttlar. From a judgment in favor of defendant, plaintiff appeals. Affirmed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. Uriah W. Tompkins, for appellant. McCALL, J. Plaintiff was in the employ of the defendant at a salary of $15 per week, and there was also an agreement between them that upon all customers procured by the plaintiff he was "to stand onethird of the losses." A customer procured by the plaintiff, named Lange, was, at the time of plaintiff's discharge (January 15, 1901) from defendant's employ, owing defendant the sum of $241.44. Subse and 121 New York State Reporter quently the defendant reduced that sum by collections from Lange to the sum of $117.82, when Lange went into bankruptcy, and no more could be collected. The only question in the case was whether the trial court was justified in deducting one-third of that sum ($39.27) from the amount claimed by the plaintiff. Plaintiff claims that he should not stand his share of this loss, for the reason that, some four months after plaintiff left defendant's employ, he called upon him and asked permission to collect the Lange claim, which was refused. The defendant showed, however, that, from the time plaintiff left his employ up to the time Lange went into bankruptcy, he used the utmost diligence and endeavor to collect the bill, and was only able to reduce it to $117.82. There is no evidence to show, nor reason for believing, that plaintiff's efforts, if he had been permitted to exert them, would have resulted in any better success than did the defendant's; and the defendant had a much larger interest in the claim, and clearly had a right to keep his collections in his own hands, instead of trusting them to a discharged employé. The trial court took this view, and deducted one-third of the lost claim from the amount of the plaintiff's claim, and gave him judgment for the balance. Judgment affirmed, with costs to respondent. All concur. (91 App. Div. 578.) JEWELL v. CITY OF MT. VERNON. (Supreme Court, Appellate Division, Second Department. March 11, 1904.) 1. MUNICIPAL CORPORATIONS-STREETS-NEGLIGENT REPAIR-INDEPENDENT CON TRACTOR-INSTRUCTIONS. In an action against a city for negligently repairing a street in which there was evidence that the work was done by an independent contractor, the defendant was entitled to a charge that if it had no control over the manner of performance of the work it was not liable. Appeal from Special Term, Westchester County. Action by William Jewell against the city of Mt. Vernon. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed. Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ. Roger M. Sherman, for appellant. JENKS, J. The plaintiff complains that the defendant so negligently repaired a street as to divert surface water, which naturally flowed in the gutters, into his house. He has recovered a judgment for injuries to chattels stored in his cellar. The defendant read in evidence a contract for the work, which shows that it was done by an independent contractor. The corporation counsel requested the court to charge that "the contractor contracting between him and the city of Mt. Vernon for the work at which this accident occurred was an independent 1. See Municipal Corporations, vol. 36, Cent. Dig. §§ 1580, 1582. contractor." And the learned court, under exception, replied: "I decline to charge that in the sense of being to that extent that it relieved the city of liability, as already charged." But reference to the charge fails to show that the learned court had instructed the jury as to the liability of the city for its negligence, in view of its employment of the independent contractor. The case was submitted without reference to the element of an independent contractor, save as to the question of notice. I think that under the request the defendant was entitled to have the court charge a rule laid down in Uppington v. City of New York, 165 N. Y. 222, 233, 59 N. E. 91, 53 L. R. A. 550, for the reason that the municipal liability is thereby limited. The judgment and order should be reversed, and a new trial ordered, costs to abide the event. All concur. (91 App. Div. 529.) PEOPLE v. CALABUR. (Supreme Court, Appellate Division, Second Department. March 11, 1904.) 1. CRIMINAL LAW-APPEALS-REVERSALS-DISCRETIONARY POWER-RIGHT OF ACCUSED TO COUNSEL. Const. art. 1, § 6, guaranties to persons accused the right to appear and defend in person and with counsel. Code Cr. Proc. § 527, permits the Appellate Division to order a new trial, where the verdict is against the weight of evidence or against law, or where justice requires it, whether any exception shall have been taken below or not. Held, that where an Italian, who understood no English, was put upon trial five days after his arraignment, and after a continuance because of his counsel's unpreparedness was refused counsel excepted and withdrew from the case, taking no part in the cross-examination of witnesses, and putting in no evidence, and refusing to sum up to the jury, a judgment of conviction would be reversed, although no legal error was presented by the exception. Appeal from Special Term. Dominico Calabur was convicted of assault in the first degree, and appeals. Reversed. Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ. Francis L. Corrao, for appellant. WOODWARD, J. The defendant, Dominico Calabur, an Italian, age about 20 years, stands convicted of the crime of assault in the first degree, and has been sentenced to state prison for a term of nine years. It appears from the record that Calabur was arrested on the evening of May 15, 1903, at the corner of Sackett and Beach streets, in the borough of Brooklyn, charged with assaulting one Felice Amodei, on Union street. At the time of his arrest Calabur was attempting to run away from the scene of the crime. He was taken before a magistrate, and pleaded not guilty to the charge, but upon examination was held to await the action of the grand jury, and that body, on the 8th day of July, 1903, found an indictment against him for and 121 New York State Reporter assault in the first degree. On the following day the defendant was arraigned on this indictment, and a plea of not guilty was entered. At this time the defendant and his counsel were told by the court that the case would come on for trial on the following Tuesday, five days hence, with a Sunday intervening. On the day mentioned, July 14th, the case was reached, and defendant's counsel asked for a continuance of the case, urging that he had not been served with the customary notice on the part of the district attorney that the case would be moved; that he was not ready to go on with the trial, as he had not had sufficient time to prepare; that he had been prevented from working on the case by reason of the excessive heat; and that the defendant had no witnesses in court to enable him to go on with the defense. The learned court refused any adjournment, and stated that "at the time this man was arraigned the counsel for the defendant was present in court, and the court informed the attorney for the defendant that we would try the case to-day." The defendant's objections were overruled, defendant took an exception, and the trial proceeded, defendant's counsel refusing to cross-examine the witnesses produced by the people, to sum up the case to the jury, or to take any part in the trial, except to reiterate his objections to the case being tried under the circumstances. The people put in their evidence, without any effort on the part of the court or defendant's attorney to make any inquiry into the merits of the case, aside from the direct examination of the witnesses for the prosecution, and after the people had summed up the case the court charged the jury, and that body found a verdict of guilty as charged in the indictment. Defendant appeals from this conviction. We think there is no exception in this case presenting legal error, and yet we feel that the circumstances surrounding this trial justify granting a new trial under the provisions of section 527 of the Code of Criminal Procedure, which permits this court to order a new trial "if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below." In the customary and orderly administration of the law, as well as by constitutional guaranty, "in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel" (article 1, § 6, State Const.); and this right has practically been denied to the defendant, who appears to have been unable to understand the proceeding, while the court permitted his counsel to withdraw from the case to all intents and purposes, leaving him without those safeguards which belong of right to every man whose liberties are involved. It is true, of course, that the defendant was present at the trial; but he might as well have been back in Italy, so far as any defense on his part was concerned, if he could not understand what was taking place about him, or if he was given no opportunity to assert his rights. The fact that his counsel was present, if he refused to take part in the trial, did not meet the requirements of what we know in this country as a fair trial. As was said by Mr. Justice Hatch in the case of People v. Watkins, 23 App. Div. 253, 257, 48 N. Y. Supp. 856, 859: "The court should protect against the mistake of the counsel for the party as well as against the affirmative action of his adversary, if injustice be the result." The fact that the defendant's counsel may have neglected his duty, or that the court failed to provide the accused with counsel, ought not to stand in the way of giving this boy a fair and impartial trial of the charges against him. The defendant is a stranger in a strange land; he is entitled to a fair and impartial trial of this indictment, with the aid and assistance of competent counsel, and we feel that this is a case in which the discretion vested in this court should be exercised, that this result may be accomplished. The judgment of conviction should be reversed, and a new trial granted. All concur. (91 App. Div. 553.) In re CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. March 11, 1904.) 1. STREETS-CONDEMNATION-DAMAGES-PAYMENT-INTEREST-Demand. Greater New York Charter (Laws 1901, p. 426, c. 466) § 1001, provides that all damages assessed by the commissioners of estimate and assessment in street opening proceedings, with interest thereon from the date of their report, shall be paid by the city, and that interest shall cease to run on sums awarded as damages six months after the date of confirmation of the commissioners' report, unless within that time demand therefor be made on the comptroller. Held that, where both benefits and damages were assessed on land affected by street opening proceedings, a demand by the owner for payment of the damages, which did not take into consideration the benefits assessed, as a set-off, was insufficient to continue interest on such damages after expiration of six months. 2. SAME-INTEREST ON BENEFITS. Where both damages and benefits were assessed on real estate in street opening proceedings, and the city was liable for interest on the damages, interest should also be charged against the owner on the unpaid benefits. Appeal from Special Term, Kings County. Application by the city of New York to acquire title to Church avenue from Flatbush avenue to Brooklyn avenue, in the Twenty-Ninth Ward of the Borough of Brooklyn, city of New York. From a final order directing the payment of benefits to the Craigen Construction Company, the city appeals. Modified. Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ. John P. Dunne, for appellant. Clarence C. Ferris, for respondent Craigen Construction Company. HOOKER, J. The final report of the commissioners of estimate and assessment in the proceeding to acquire Church avenue, in the borough of Brooklyn, dated the 20th day of April, 1903, was confirmed April 28, 1903, by an order of the Supreme Court, entered and filed in the office of the clerk of Kings with the said report, on the following day. In and by said report awards were made to the Craigen Construction Company in the sums of $2,711.59, $306.30, and $1,068.29 for damage to lots numbered 55, 57, and 58, respectively. In and by |