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THIRD DEPARTMENT, JULY TERM, 1895.

[Vol. 88. "People object that the crime charged here is not enumerated in section 56 of the Code of Criminal Procedure, and that she is not, therefore, entitled to the adjournment provided for in section 58 of the Code of Criminal Procedure. Motion denied.

"Defendant then states they demand a jury trial. Granted." The case shows that a venire was issued, a jury procured, and the hearing of the case adjourned from time to time until the twentyseventh of September, then instant, when the case was tried before a jury, who rendered a verdict of guilty, upon which the defendant was, by warrant of the justice, committed to the House of Refuge for Women for a term of five years, unless sooner discharged by the board of managers.

If we are right in holding that this complaint was triable in the first instance exclusively by a Court of Special Sessions, under the provisions of section 56 of the Code of Criminal Procedure, then it was error, we think, to refuse an adjournment on the application of the defendant to enable her to apply for a judge's certificate allowing the presentation of the matter to the grand jury. The record shows that no step had been taken in the case after the demand for a jury trial, before a request to withdraw that demand was made by the defendant.

The right of the defendant, under section 58 of the Code of Criminal Procedure, to have time to make that application is a legal right, guaranteed by statute, and not one resting in the discretion of the justice, and when the defendant complies with the requirements of the statute in making the demand, it is error in the magistrate to refuse, which may be reviewed on appeal.

But if this case was one triable before the magistrate as such, and not before a Court of Special Sessions, then it was error to try it before a jury, and the trial and conviction by the jury gave the justice no right to pronounce judgment and issue his warrant for committal of the defendant.

In either aspect of this case, we think the conviction erroneous. The judgment of conviction must be reversed.

PUTNAM and HERRICK, JJ., concurred in result.

Judgment of conviction reversed.

Hun.]

THIRD DEPARTMENT, JULY TERM, 1895.

ABNER MILLS, Appellant, v. ETTA STEWART and Others, Respondents.

Order of reference · -a party cannot submit thereto and subsequently appeal therefrom — when it is not an intermediate order — what is not an appeal from a final judgment the authority of an attorney continues until final judgment.

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A party cannot submit to an order of reference, proceed to a hearing upon the merits, and in the event of the decision being adverse to him attack the regularity of the order or the authority of the court to make it.

Where a County Court makes an order sending to a referee the question as to the amount paid upon a decree in foreclosure (there being a dispute between the plaintiff and a junior incumbrancer as to whether payments made by the latter to the plaintiff's attorney, under an agreement made by the junior incumbrancer with the plaintiff's attorney to take an assignment of the decree, were binding upon the plaintiff), such order is not an intermediate order and is reviewable only upon a direct appeal from it.

An appeal from an order denying the plaintiff's motion to vacate the order, and to set aside the report of the referee in such a case, is not an appeal from a final judgment.

The authority of an attorney continues until final judgment is rendered, and payments made to him upon an interlocutory judgment in foreclosure are binding upon his client.

APPEAL by the plaintiff, Abner Mills, from an order of the County Court of Sullivan county, entered in the office of the clerk of said county on the 15th day of January, 1895, denying the plaintiff's motion to vacate an order of reference, dated July 9, 1894, and to set aside the report of a referee appointed under said last-mentioned order, which report was filed in said clerk's office on the 31st day of October, 1894, with notice of an intention to bring up for review upon such appeal an order of reference made by said County Court of Sullivan county, dated July 9, 1894, referring to a referee to take proof and report as to what sum was due and unpaid upon a decree in foreclosure entered in said clerk's office on the 16th day of February, 1886, the report and decision of the referee when filed to stand as the decision of the court, all proceedings of the plaintiff being stayed until the determination of the matter.

The controversy arose from the following facts: T. A. Read, as attorney for the plaintiff, Abner Mills, began an action of foreclosure in the Sullivan County Court against Etta Stewart, mortgagor, and others, including Warren L. Scott, a junior incumbrancer by

THIRD DEPARTMENT, JULY TERM, 1895.

[Vol. 88.

mortgage. A decree of foreclosure was entered on February 15, 1886, for $1,076.60, and for costs $141.25. On April 10, 1886, as the referee appointed in the matter found, Warren L. Scott made an agreement with Read that, in consideration of the postponement of the mortgage sale, he (Scott) would take an assignment of the decree and make therefor payments at dates stated. Under this agreement Scott paid Read $1,000, of which Read paid the plaintiff only $450. In 1888 Etta Stewart, mortgagor, conveyed the premises to Scott. Read remained attorney for the plaintiff until his death in May, 1892. No sale of the premises had taken place. Scott applied to the County Court of Sullivan county to have the amount remaining due upon the decree fixed. The court then made the order recited above and dated July 9, 1894. The referee thereby appointed reported that all the payments made by Scott to Read should be credited upon the decree and were valid as against the plaintiff.

John A. Thompson, for the appellant.

George H. Carpenter, for the respondent Scott.

HERRICK, J.:

The order appointing the referee cannot be reviewed upon this appeal. It is not an intermediate order, nor is this an appeal from a final judgment, within the meaning of section 1316 of the Code of Civil Procedure. (Fox v. Matthiessen, 84 Hun, 396.)

The only way to review such an order is by a separate appeal. The appellant cannot submit to an order and proceed to a hearing upon the merits and take his chances of a favorable decision, and then in the event of its being adverse to him attack the regularity. of the order or the authority of the court to make it.

The question then comes upon the merits of the decision of the referee so appointed. The plaintiff's attorney had the right to act for him in all matters relating to the foreclosure suit until final judgment at least; the proceedings here had not gone to that length; only an interlocutory decree had been entered; the agreement between the plaintiff's attorney and Scott was in effect nothing more than the law would award to Scott upon payment of the mortgage. (Twombly v. Cassidy, 82 N. Y. 157; Arnold et al. v. Green, 116 id. 566–572.)

Hun.]

THIRD DEPARTMENT, JULY TERM, 1895.

The amount paid to Scott is undisputed, the person to whom it was paid being the plaintiff's attorney, and in the very proceeding in which it was paid the amount thereof should be credited on the interlocutory judgment.

The order should, therefore, be affirmed, with costs and disbursements.

PUTNAM and FURSMAN, JJ., concurred.

Order affirmed, with costs and disbursements.

88 505

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EUGENE 148a 95 E. MCCLURE, Appellant.

Receiving stolen goods — similar acts may be shown to prove scienter — limitations of

this rule.

Upon the trial of a person indicted for the crime of receiving stolen goods, consisting of tobacco in various forms, which had been stolen from a railroad car, it appeared that at the same time and from the same railroad car there had been stolen dry goods and merchandise consigned to other persons; the court, over the defendant's objection, admitted evidence to show the theft of the dry goods and merchandise, and that various portions of these had been found in the defendant's possession. The People gave no evidence showing that the dry goods and merchandise were received by the defendant at the same time with the tobacco, nor from the same person from whom he received the tobacco, and there was no evidence connecting the person from whom the defendant received the tobacco with the person from whom he received the dry goods and merchandise.

Held, that the testimony was inadmissible; that while proof of other acts of a similar character, although they involve substantive crimes, may be given in evidence upon a trial to prove scienter, there must be some connection in time, place, circumstances, or in the person from whom the other articles were received, tending to connect the crimes; so that, if the defendant knew that one article was stolen, there would be a natural inference that he knew that the other articles were also stolen.

APPEAL by the defendant, Eugene E. McClure, from a judgment of the Court of Sessions of Rensselaer county on the 11th day of September, 1894, rendered upon the verdict of a jury convicting the defendant of the crime of receiving stolen goods.

HUN-VOL. LXXXVIII. 64

THIRD DEPARTMENT, JULY TERM, 1895.

Calvin E. Keach, for the appellant.

John P. Kelly, District Attorney, for the respondent. HERRICK, J.:

[Vol. 88.

The defendant was indicted for the crime of receiving stolen goods. The goods alleged to have been stolen and received by him consisted of cigars, cigarettes and various packages of tobacco. The goods so received by him had, as it appeared upon the trial, been taken from a freight car of the Delaware and Hudson Canal Company; at the same time various articles of dry goods and merchandise, consigned to persons other than those to whom the cigars, cigarettes and tobacco were consigned, were taken from the same

car.

Evidence was received upon the trial of the stealing of such dry goods and merchandise from the car, and of the finding of various portions of them in the possession of the defendant.

There was no evidence upon the part of the People that the dry goods and merchandise were received by the defendant at the same time, or from the same person, at and from whom he received the cigars, cigarettes and tobacco; there is evidence upon the part of the defendant that he received them from a different person at a different time. There is no evidence of any connection having existed between the person from whom he received the cigars, cigarettes and tobacco and the person from whom he received the dry goods and merchandise.

Upon the trial the defendant objected and excepted to the reception of evidence showing the larceny from the cars of the Delaware and Hudson Canal Company of other property than that mentioned in the indictment, and to evidence of such property having been found in his possession.

In cases of this kind proof of other acts of a like character, although involving substantive crimes, may be given in evidence to prove the scienter. (Coleman v. The People, 55 N. Y. 81; Coleman v. The People, 58 id. 555; People v. Gibbs, 93 id. 470–473.)

The leading case upon this kind of evidence is that of Coleman v. The People (55 N. Y. 81), and in discussing the cases of King v. Dunn (1 Moody's Crown Cases, 146) and Rex v. Davis, the cases upon which the decision of the Coleman case was based, the court

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