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First Department, November, 1911.

[Vol. 146. 100; affd., 181 N. Y. 521; Keegan v. Third Ave. R. R. Co., 34 App. Div. 297; affd., 165 N. Y. 622.) Plaintiff did not rely alone upon a presumption of negligence arising from the fact of the happening of the accident, as the learned trial court seemed to believe, but had introduced evidence tending to affirmatively establish negligence. There was testimony received which, if believed by the jury, would have justified it in finding either (1) that the preceding car had been struck repeatedly by the awning, which was then free and flapping in the wind, so that every one of the stanchions came in contact therewith and which condition created a duty upon the motorman of the fifth car to either stop and have the danger obviated or to notify the motorman of the next car of the risk of passing while the condition existed, for it was apparent that a heavy canvas with an iron pipe at its extremity violently flying around in the air in the fixed pathway of the cars was highly probable to cause damage or injury to the passengers, particularly as the clearway was only 34 inches and the pole was 110 inches long, swinging freely at one end; or (2) that the motorman of the sixth car had seen the conditions just recited and should also have appreciated the danger and stopped in time and not passed until the awning was secured, for he admitted he had a full view of the fifth car when he undertock to deny that the awning had struck it at all; or (3) that the awning was loose at one end and swinging freely in the air and struck the sixth car at the stanchion directly behind the motorman, thus giving him immediate notice of the danger and calling for the immediate stoppage of the car by him. As to the other defendant, if the method of construction of this awning was safe and proper as its witnesses testify without contradiction, then it could be held liable only if the jury found that it negligently allowed the awning to remain unfastened. Concededly, the pipe was not heavy enough to alone keep the awning down and close to the wall. That required the tying of the rope fastenings in two places at least. Had the ropes been properly fastened, the awning could not have blown up or away from the building. It was the duty of the hotel company to keep them so fastened, for the danger was obvious of allowing such a heavy object to be carried by the wind across a track on which

App. Div.]

First Department, November, 1911.

cars ran at irregular intervals. The awning was in the path of currents of air from some of nine doors, at least, near the ocean, and with people constantly moving to and fro. The duty of that particular defendant to keep the awning properly fastened was clear. Was that duty performed? That must have been a question for the jury in the first instance, particularly in view of the untenable theory offered as to how the awning became loose, which may well create a doubt as to whether it was ever fastened; for the testimony that it was fastened came from those who also undertook to explain its casting loose.

Upon the whole case, therefore, issues of fact were presented which required submission to the jury.

The judgment appealed from must be reversed and a new trial ordered as against both defendants, with costs to appellant to abide the event.

INGRAHAM, P. J., LAUGHLIN, SCOTT and MILLER, JJ., concurred.

INGRAHAM, P. J. (concurring):

I concur with Mr. Justice DoWLING that the proof required the submission of the question of the defendants' negligence to the jury. The defendant railroad company was a common carrier and the plaintiff was a passenger. The maxim res ipsa loquitur applied, and this, in connection with the evidence, would justify the jury in finding that the defendant railroad company was negligent. As to the hotel company, no such relation existed between it and the plaintiff. It maintained, however, a structure abutting upon a way or road that was used as a public street. The public had a right to the use of that street, and the hotel company was bound to see to it that neither its structure nor the use to which any part of it should be put would injure a person lawfully upon the street. It could not maintain for its own purposes a curtain with a pipe of this character to hold it down without its being so securely fastened that it could not blow out upon the street and injure a person lawfully there without responsibility for an injury caused thereby. The evidence is undisputed that the plaintiff was riding in a street car that passed the hotel premises, and

First Department, November, 1911.

[Vol. 146. while there an appliance upon the defendant's premises for some cause blew out and a pipe attached to that appliance struck the plaintiff and injured her. Whether or not such an accident was an unavoidable one, or could be prevented by the exercise of proper care by the hotel company was a question for the jury, and I, therefore, concur in the reversal of the judgment as against both defendants.

SCOTT, J., concurred.

Judgment reversed and new trial ordered, costs to appellant to abide event.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK ZERILLO and Others, Appellants.

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Only the judge who has sustained a demurrer to an indictment can resubmit the case to the grand jury, under section 327 of the Code of Criminal Procedure.

The intent of such section is that the judicial discretion as to the resubmission shall be exercised by the same judge who passed upon the issue raised by the demurrer.

The direction for resubmission should be made at the same time that the demurrer is sustained.

The Code of Criminal Procedure contemplates that when a judge passes upon a demurrer to an indictment he shall either (1) disallow the demurrer, or (2) allow it, or (3) allow it but direct a resubmission. Unless the judge allowing a demurrer to an indictment at the same time directs a resubmission to another grand jury, the defendant is freed and no action by another judge can reinstate his liability to prosecution for the same offense.

Where the demurrer to an indictment was allowed, and over a year later another judge of the same court granted an application for a resubmission of the case to another grand jury and a second indictment was thereupon found for the same offense, a plea of former acquittal is good.

APPEAL by the defendants, Frank Zerillo and others, from a judgment of the Court of General Sessions of the Peace in and

App. Div.]

First Department, November, 1911.

for the city and county of New York, rendered against the defendants on the 9th day of March, 1911, convicting them of the crime of having made, as Republican primary election inspectors, false statements of the result of the canvass of ballots, with notice of an intention to bring up for review on such appeal certain intermediate orders and certain judgments theretofore rendered herein.

Florence J. Sullivan, for the appellants.

Lowen Edward Ginn, Special Deputy Attorney-General, for the respondent.

DOWLING, J.:

Defendants have been convicted of a misdemeanor in that while acting as inspectors of a primary election they made a false statement of the result of the canvass of the ballots cast thereat. (Penal Code, § 41, subd. 12; now Penal Law, § 751, subd. 12.) They appeal from the judgment of conviction and seek to review thereupon, among other things, the judgment rendered on the verdict for the People on the trial of a plea of former acquittal, the denial of a motion to dismiss the indictment on the same ground, and an order made August 23, 1909, directing the resubmission of the charges herein to another grand jury. The principal question now to be determined is the validity of the order last referred to. On April 10, 1908, the defendants were first indicted for the commission of the offense in question. The indictment contained two counts, both charging the commission of the crime of making a false statement of the result of the canvass of the ballots cast at an election while defendants were inspectors of election, and both based on the same state of facts, to wit, that defendants being inspectors of election at a primary election of the Republican party held in the city of New York on September 24, 1907, for the fifth and sixth election districts of the first Assembly district, had falsely and fraudulently made a statement of the canvass of the ballots whereby they gave, in the fifth district, George Husch, a candidate for member of the executive committee of said party, fifteen votes instead of sixty which he

First Department, November, 1911.

[Vol. 146. had actually received, and Rocco Dalessandro, his opponent, sixty-one votes instead of seventeen actually received; and in the sixth district nine instead of thirty-nine to Husch, and fortysix instead of eleven to Dalessandro. To this indictment a demurrer having been interposed upon the ground, among others, that the indictment charged more than one crime, and that it failed to comply with the provisions of sections 275 and 276 of the Code of Criminal Procedure, Judge CRAIN, after hearing argument, sustained the demurrer on the ground that the crime with which the defendants were charged in the indictment was a felony, being for a violation of section 41m of the Penal Code, inasmuch as they were specifically accused of "the crime of making a false statement of the result of the canvass of the ballots cast at an election" whereof defendants were inspectors, which clearly brought the crime within the section referred to; while in fact the acts with which the defendants were charged having occurred at a primary election constituted a misdemeanor only, being a violation of section 41, subdivision 12, of the Penal Code. He, therefore, held that as defendants had been accused of the commission of a felony occurring at a general election, while the facts averred did not support that charge, and as the facts averred did show the commission of a misdemeanor occurring at a primary election, but defendants had not been accused of the latter crime, the indictment was fatally defective and the demurrer must be sustained. This opinion was handed down June 11, 1908, and in it Judge CRAIN made no reference to any resubmission of the charges to the grand jury, nor did he then direct it to be submitted. On December 14, 1908, the Attorney-General moved before Judge CRAIN in Part 5 of the Court of General Sessions for an order directing that the charge against the defendants be resubmitted to the grand jury.

This motion having been referred to Part 1 of the same court, was there heard by Judge ROSALSKY, who granted the application against defendants' opposition, and finally made the order dated August 23, 1909, directing the submission to the grand jury of the county of New York of the violation of section 41, subdivision 12, of the Penal Code, alleged to have been committed by defendants, and acting under that order the indict

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