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at law which he can pursue or exhaust, and that unless he can maintain this action in equity he must lose his total indebtedness."

For the reason, therefore, that I do not regard the question as an open one, I dissent from the conclusion reached by the majority of the court, and think that the order continuing the injunction should be affirmed, with costs.

INGRAHAM, J. I concur with Mr. Justice O'BRIEN. If we were authorized to overrule Bank v. Wetmore, 124 N. Y. 241, 26 N. E. 548, the considerations advanced in favor of reversing this order would have weight; but, as we are bound to apply the principle established in that case, I can see no escape from the conclusion that the court has the right to grant relief in this action without requiring that the remedy at law should be exhausted. The ground of that decision is that "the subjects of fraud and trust are peculiarly matters of equity jurisdiction, which is very comprehensive when the other tribunals cannot afford relief." In that case it was the fraudulent disposition of property that gave the court jurisdiction. In this case I think it is the trust under which the property is sought to be applied to the payment of the plaintiff's claim which gives the court jurisdiction. The income from this trust fund, which the statute makes applicable to the payment of the debts of the person entitled to such income, can only be reached upon application to a court of equity. A court of law would have no jurisdiction to compel the trustee to apply any portion of such income to any purpose, and it is the inability of a court of law to reach property held in trust that gives a court of equity the comprehensive jurisdiction over trusts. An action to reach the income of this property could not be maintained under the Code of Civil Procedure, as by section 1879 the provisions in relation to creditors' actions are expressly held inapplicable to actions to reach property held in trust, when the trust was created by a person other than the debtor. If the debtor is entitled to a trial by jury as to the validity of the claim against her, she can have such a trial in this action. She is a party to the action, and can appear and dispute the plaintiff's demand, and the court can send the issues as to the validity of such demand to be tried by a jury. Such a case is expressly provided by the Code.

(Supreme Court, Special Term, Kings County. April, 1901.) PERJURY-APPEAL-CERTIFICATE OF REASONABLE Doubt-HARMLESS ERROR. Where defendant was on trial for perjury, the reading in evidence of the stenographer's report of defendant's examination at the trial where the alleged false testimony was given, wherein the presiding judge had characterized him as an unwilling witness who had to be probed for the truth, was a technical error, not sufficient to influence a fair jury, and not sufficient ground for a certificate of reasonable doubt.

Daniel Doody was convicted of perjury, and applied for a certifi cate of reasonable doubt. Application denied.

Jerry A. Wernberg, for the application.
John F. Clarke, Dist. Atty., for the People.

GAYNOR, J. There seem to be some technical errors. For instance, in reading in evidence the stenographic report of the defendant's examination on the trial of Fielding, on which the indictment herein against the defendant for perjury was found, the district attorney was permitted to read statements and comments of the district attorney and of the presiding judge during such examination. A comment of the judge so read characterized this defendant as an unwilling witness who needed to be probed to get the truth out of him. It is claimed that this opinion of him by the learned judge in that case must have influenced the minds of the jury herein against this defend

ant.

The rule seems to be that where evidence has been erroneously admitted, or other errors exist, a reversal of the judgment of conviction must follow, unless "the appellate tribunal can see that by no possibility could the error have worked any harm to the defendant." People v. Koerner, 154 N. Y. 355, 48 N. E. 730. The growing tendency in this state during the last 30 years or more has been as we all know, and as is sufficiently shown by the case cited, to reverse judgments of conviction on technical errors without regard to the merits of the case. To say that by "no possibility" could the jury have been affected by a given erroneous ruling of the trial judge has obviously enough been found a hard thing. I find that since 1870 there have been in this state about 607 appeals from criminal convictions to our highest court of appeal, and that over 20 per cent. of them were reversed. If these reversals had been on the merits, and thus indicated that the defendants were not guilty, they would indicate that much more than 20 per cent. of the convicts in our state prisons are innocent of the crimes for which they are suffering, for only a comparatively few persons convicted of crime are financially able to appeal at all, much less appeal to our highest court of appeal. We have come to applying a rule of perfection to criminal trials, or very near to it, although such a rule is known to all mankind to be an impossible one, and is by common consent not applied to human affairs. The record of a criminal trial has to be practically perfect in order to sustain a conviction on appeal. It is reviewed mainly with an eye to technical errors, instead of to the merits on the whole case, as is the rule in other jurisdictions.

The foregoing points out the standpoint from which a judge must view the case on the question which the application for a stay of the judgment of conviction pending an appeal presents, viz., whether there is "reasonable doubt whether the judgment should stand." Cr. Code, § 527. But it seems to me that on the question whether the judge is able to say whether the jury were influenced by an error in a ruling, they must be considered as men of good, if not superior, intelligence, judgment, discernment, discretion and honesty, and as not capable of being influenced to the defendant's hurt by things which would not so influence such men. It is not reasonable to say that they could even "possibly" be so influenced by that which should not

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influence such men. To act on a contrary theory is to place trial judges and jurors below par in the qualities mentioned.

In this view I do not think any error has been pointed out for which a stay should be granted. Application, denied.

CHURCH v. STANDARD RAILROAD-SIGNAL CO.

(Supreme Court, Appellate Division, First Department. April 4, 1901.) LANDLORD AND TENANT-LEASE-OPTION TO PURCHASE-EXERCISE-PLEADING. A lease gave the lessee an option to purchase the premises any time during the term ending December, 1898, and fixed March, 1899, as the date for delivery of the deed and payment of the price, and provided that if the lessee did not exercise the option he should pay additional rent. The option was not exercised, and in an action for the additional rent the lessee answered, admitting that the option was not exercised, but alleging that the lessor did not offer and was not able to convey good title on March 31, 1899. Held, that it was error to overrule a demurrer to the answer, since the answer, to state a defense, should also have alleged that the option was exercised, or that defendant had been unable to exercise it because of the fact that the lessor would be unable to convey on March, 1899.

McLaughlin, J., dissenting.

Appeal from special term.

Action by George H. Church against the Standard Railroad-Signal Company. From a judgment overruling a demurrer to an affirmative defense set up in defendant's answer, plaintiff appeals. Reversed. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

John A. Garver, for appellant.

A. H. Masten, for respondent.

VAN BRUNT, P. J. We do not think that the case at bar has been in any respect changed from the situation which obtained when it was before this court on the previous appeal; the opinion then given being reported in 52 App. Div., at page 410, and 65 N. Y. Supp., at page 116. It seems to us that the court below has misapprehended the decision which was then rendered. It was said in that case: "The defendant was to exercise the option before the expiration of the lease, but it was the ability of the lessor to convey at the time that the conveyance was to be delivered-namely, March 31, 1899-that was to determine the obligation of the defendant to pay the additional sum of $5,000. If the plaintiff had been unable at the time when the conveyance was to be delivered to convey a good title, the obligation of the defendant to pay the $5,000 would have been at an end; but it could only be relieved from that obligation upon the exercise of the option and the inability of the lessor to convey a good title, or upon proof that it had been unable to exercise the option because of the fact that the lessor 'should be unable to convey' on the 31st day of March, 1899."

There is no claim that there was any exercise of the option as required by the terms of the contract. The defendant seeks to relieve itself because of an inability to convey on the 31st of March, 1899. The allegations of the separate defenses in the answer which has

been demurred to did not establish that the plaintiff's assignor was unable to convey on the 31st of March, 1899. All the incumbrances mentioned in that answer were such as might have been removed had the defendant exercised its option and made its tender at the proper time. After the plaintiff's assignor had been notified that the defendant was not to exercise the option, certainly there was no obligation upon his part to remove the incumbrances which were susceptible of removal, and which remained upon the property. The only way in which the defendant could put the plaintiff's assignor in default was, as already stated, by the exercise of the option and a tender at the time fixed, or by showing that there were incumbrances upon the property which affected the title, and which it was impossible to remove. The mortgages were capable of satisfaction, and the covenants in regard to use were capable of release; and non constat but that if the defendant had exercised its option, and given the plaintiff's assignor proper notice, they would have been removed, and the plaintiff's assignor would have been in condition to give the title which he had agreed to give. We think, therefore, that the case is in precisely the same condition as it was upon the previous appeal, and that the demurrer should have been sustained.

The judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the defendant to answer over on payment of costs in this court and in the court below.

O'BRIEN and INGRAHAM, JJ., concur.

MCLAUGHLIN, J. I am unable to concur in the prevailing opinion. On the former appeal (52 App. Div. 407, 65 N. Y. Supp. 116) we held that:

"If the plaintiff had been unable at the time when the conveyance was to be delivered to convey a good title, the obligation of the defendant to pay the $5,000 would have been at an end."

The amended answer, demurred to, alleges that on the 31st of March, 1899, the time when the conveyance was to be delivered according to the terms of the lease, the lessor could not convey to the defendant a good and valid title to the premises, free from all incumbrances. This allegation is admitted by plaintiff's demurrer. Therefore, not only under our former decision, but upon reason and authority alike, plaintiff is not entitled to the additional $5,000 sued for. The contract under which the defendant obligated itself to pay the $5,000 provided, among other things, that at any time before the expiration of the lease,-December 31, 1898,-the defendant, "having first satisfied itself that the party of the first part can convey to it a good and valid title in fee to the said premises, free and clear from all incumbrances," may purchase, etc. The demurrer admits that on the 31st of December, 1898, Hepburn, the plaintiff's assignor, could not convey a good title in fee to the premises, free and clear from all incumbrances; on the contrary, that the same was then incumbered by two mortgages aggregating about $114,000, and in addition thereto that there were other defects in the title, by way of restrictive covenants in plaintiff's title deeds as to the use to which the prem

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ises could be put. To entitle the plaintiff to recover, he must allege in the complaint and prove upon the trial that at the time defendant had the right to exercise the option to purchase, had such right been exercised, he then had it in his power (not that he might have obtained it) to give to the defendant a good and valid title in fee to the premises, free and clear from all incumbrances.

I am of the opinion that the judgment appealed from should be affirmed, with costs.

NEW JERSEY STEEL & IRON CO. v. ROBINSON et al.

(Supreme Court, Appellate Division, First Department. April 4, 1901.) 1. PLEADINGS-DEMURRER TO ANSWER.

Where certain paragraphs in an answer do not constitute a separate defense, it is not error to overrule a demurrer thereto, since a demurrer must be directed to an entire defense.

2. SAME-FORM OF ANSWER.

Where certain paragraphs of an answer do not appear to constitute a separate defense, and can only be understood when taken in connection with other paragraphs, but the plaintiff contends that it constitutes a separate defense, he cannot demur thereto, but should move for an appropriate pleading in accordance with Code Civ. Proc. § 507, requiring distinct defenses to be separately stated and numbered in the answer.

Appeal from special term, New York county.

Action by the New Jersey Steel & Iron Company against Andrew J. Robinson and others to enforce a mechanic's lien. From a judg ment overruling a demurrer to the answer (68 N. Y. Supp. 577), plaintiff appeals. Affirmed.

Argued before VAN BRUNT, P. J., and RUMSEY, MCLAUGHLIN, and PATTERSON, JJ.

H. B. Closson, for appellant.

Edward S. Clinch, for respondents.

MCLAUGHLIN, J. On the 5th of June, 1899, the defendant Robinson entered into an agreement with the defendant Kinney to furnish certain materials and perform certain work in the construction of a building on the latter's land, who, in consideration thereof, agreed to pay the actual cost of the materials and labor and 5 per centum in addition thereto. The plaintiff, according to the allegations of the complaint, at the request of Robinson, and with the consent of Kinney, performed labor and furnished materials to the value of $36,315.66, to secure the payment of which the plaintiff filed a mechanic's lien, and this action was brought to foreclose the same. The complaint alleges that the plaintiff has completely performed its contract with Robinson, and that there is due to it the amount above stated. The relief demanded is that the plaintiff may be adjudged to have a valid lien upon Kinney's land for this sum; that the same be sold, and, in case of a deficiency, that it may have personal judgment against Robinson to the extent of such deficiency, and for the whole sum in case it be determined that the plaintiff has not a valid lien upon the land. Robinson interposed an amended answer, containing separate paragraphs, of which the tenth is as follows: