Illinois in a well-considered case (Drago wich v. Iroquois Iron Co., 269 Ill. 478, 109 N. E. 999) that injuries received by one workman while trying to rescue from serious danger another workman of a common employer arose out of his employment. It is true that that decision was, to some extent, based on the proposition that it would be the duty of the employer himself to attempt to rescue his endangered servant, and therefore that the attempt of the employé who came to the latter's rescue was performed in the interest of and for the benefit of his employer. We think, however, that the principle of that case, when broadened as it properly may be, tends to sustain the award in this one. Independent of any legal obligation which might require the master to attempt to rescue a servant from the dangers of an emergency, there is a moral duty resting on principles of humanity, and those principles ought to apply to a contract of employment and broaden its scope so as to permit a servant to do as Waters did in attempting to rescue a fellow workman although technically working for a different employer. appeal. There is no trouble in outlining a (218 N. Y. 133) HUDSON v. GLENS FALLS INS. CO. (Court of Appeals of New York. May 2, 1916.) 1. INSURANCE 378(1)-FIRE INSURANCE— INSURABLE INTEREST NOTICE-EFFECT. Where plaintiff, on securing additional insurhe had a contract with his landlord under which ance on hay, informed the insurer's agents that title to the hay remained in the landlord until plaintiff performed his lease covenants, whereupon he was to have half the hay remaining after sit-leaving sufficient to winter certain stock, the policy was valid, notwithstanding plaintiff's qualified ownership. Even the rather rigid rules of an action at law for negligence bend before such a uation of peril and without penalty to his rights permit a casual bystander to take risks in the attempt to save life which would be prohibited under any other circumstances. Eckert v. L. I. R. R. Co., 43 N. Y. 502, 3 Am. Rep. 721. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 968, 975-997; Dec. Dig. 878(1).] 2. INSURANCE 115(4)-FIRE INSURANCEINSURABLE INTEREST-QUALIFIED OWNER SHIP. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 147; Dec. Dig. 115(4).] CY IN COMMON-HOW CREATED. And certainly it would be a narrow and Where plaintiff had a contract with his disappointing view if in judging the conduct landlord under which title to the hay remained of a workman under the remedial provisions lease covenants, whereupon he was to have half in the landlord until plaintiff performed his of the Workmen's Compensation Act we the hay remaining after leaving sufficient to winshould hold that the Legislature intended ter certain stock, he had an insurable interest in to deprive him of the benefits of that act be- the hay, since he might hold it against all the world except the landlord, and could even colcause in going to the rescue of another work-lect the insurance money and then account to man under such circumstances as arose here the landlord. he has stepped somewhat beyond the limits which would fix the scope of his employment under ordinary circumstances. That act is framed on broad principles for the protection of the workman. Relief under it, generally speaking, is not based on the negligence of the employer, or limited to the absence of negligence on the part of the em-326(3).] ployé. It rests on the economic and humanitarian principles that compensation should be given at the expense of the business to the employé or his representatives for earning capacity destroyed by an accident in the course of or connected with his work, and this not only for his own benefit, but for the benefit of the state, which otherwise might be charged with his support. This purpose ought not to be defeated by placing too narrow a limit upon the nature of the acts which will be regarded as pertaining to his employment. 4. LANDLORD AND TENANT 326(1)-CHATTEL MORTGAGES-CREATION-CONTRACT. Where a tenant and landlord contracted that title to hay to be grown on the leased premises should remain in the landlord as security for faithful performance of the contract by the tenant until fully performed, the contract was, in effect, a mortgage on the hay. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1367, 1370-1374; Dec. Dig. 326(1).] 5. INSURANCE 574(3)-DISCHARGE-FRAUD -RIGHTS OF INSURED-"MATERIAL FACT." Where a tenant disclosed to the insurer's agent that he and the landlord had a contract Of course what we thus say is to be ready which title to certain hay remained in the landlord until performance by the tenant of in the light of the facts presented on this his lease covenants, and the insurer issued its For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes policy in favor of the tenant, but on loss its were informed that the hay which was inadjuster represented to the tenant that the pol-sured was held by the plaintiff under the icy was void as to the hay, when, in fact, it was valid, and the tenant relied on such representa- terms of the aforesaid contract between the tion and settled for less than the loss, the rep- plaintiff and the owner of the farm as to the resentation was of a "material fact," so as to title of the latter to the farm produce. On entitle the tenant to rescind the contract of August 26th the barn in which the hay was settlement and sue for the entire loss. stored and its contents were totally destroyed by fire. The controversy here is over the loss on the hay. [Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 1430-1432; Dec. Dig. 574(3). For other definitions, see Words and Phrases, First and Second Series, Material Fact.] Appeal from Supreme Court, Appellate Division, Fourth Department. Action by Charles Hudson against the Glens Falls Insurance Company. From a judgment of the Supreme Court, Appellate Division (162 App. Div. 934, 147 N. Y. Supp. 1117), reversing a judgment of the Special Term for plaintiff, entered upon a referee's report, and dismissing the complaint, plaintiff appeals. Reversed, and judgment on referee's report reinstated. John Conboy, of Watertown, for appellant. Virgil K. Kellogg, of Watertown, for respond ent. CUDDEBACK, J. The action was brought to rescind a contract whereby the parties adjusted and settled a claim of the plaintiff on a policy of fire insurance. A few days after the fire the defendant's | adjuster visited the farm for the purpose of adjusting the plaintiff's loss, and, as the refcree found upon sufficient evidence, the adjuster informed the plaintiff that the policy as to the hay at least was void, because the plaintiff was not the owner thereof when it was insured, and that his only interest was in the surplus that would remain after the stock on the farm had been turned out to The refergrass according to the contract. ee's finding in that respect has not been disturbed by the Appellate Division. No controversy arose between the plaintiff and the defendant's adjuster over losses on the other property covered by the policy of insur ance. The Appellate Division, in reversing the judgment in favor of the plaintiff, struck out the finding by the referee that the statement. made by the adjuster at the time of the settlement was a misrepresentation of both law and fact, but, as has been already said, the court did not disturb the specific finding of the referee as to what the adjuster did say. The Appellate Division further held that the plaintiff "had no insurable interest in that part of the hay destroyed which was necessary to winter out the stock." The plaintiff was working a farm on shares. His contract with the owner of the farm provided for keeping thereon fifty cows, the property of the farm owner, and six horses to be furnished by the plaintiff for doing the farm work. The cows and horses were to be fed on the hay produced on the farm before a division thereof between the parties was made. The contract began on January 1, 1912, and was to continue for one year. The plaintiff was to leave on the farmed, at the expiration of his contract a sufficient quantity of hay to feed the cows, and also to feed six horses, until the time came in the spring when they could be turned out to grass. The contract also contained a provision that the title to all the crops raised on the farm during the continuance of the contract, and the products of the dairy, should be in the owner of the farm as security for the performance of the contract by the plaintiff until he had fully performed, and then a division between the parties should be made. On May 8th following the date of the agreement the plaintiff procured from the defendant's agents a policy of fire insurance, in the standard form of this state, insuring his horses, wagons, and farm implements. On the 5th day of August, after the crop of hay had been gathered, the plaintiff, by a rider attached to the same policy, procured further insurance from the defendant's agents on the hay and other products of the farm. The referee found upon sufficient evidence, and the finding was not disturbed by the Appellate Division, that when the last insurance was procured the defendant's agents [1] I think the Appellate Division was in error in both the propositions which it decidand that the statement made by the adjuster to the plaintiff at the time of the settlement was a material misrepresentation, and also that the plaintiff did have an insurable interest in the hay. The fact as found by the referee that the defendant's agents who issued the policy were informed of the provisions of the contract between the plaintiff and the owner of the farm regarding the title to the farm products is sufficient to validate the insurance, notwithstanding the qualified ownership of the plaintiff which the contract disclosed. Robbins v. Springfield Fire & M. Ins. Co., 149 N. Y. 477, 44 N. E. 159; Skinner v. Norman, 165 N. Y. 565, 59 N. E. 309, 80 Am. St. Rep. 776; Haight v. Continental Ins. Co., 92 N. Y. 51. The policy of insurance was not therefore issued upon any misunderstanding as to the ownership of the hay. [2] The plaintiff had an insurable interest in all the hay destroyed, including that "which was necessary to winter out the stock." The court at the Appellate Division apparently did not deny that the plaintiff had an insurable interest in so much of the hay as was necessary to feed the cows and his horses prior to the expiration of the con tract on January 1, 1913. Whether any part agents, as has been said, had full knowledge court said: "It is laid down in broad terms that one may, in his own name, insure the property of another for the benefit of the owner without his previous authority or sanction, and that it will inure to the benefit of the owner upon a subsequent adoption of it, even after a loss has occurred." The court further said, with regard to persons taking out such insurance, that: They may "recover of the insurer not only a sum equal to their own interest in the property by reason of any lien for advances or charges, but the full amount named in the policy up to the value of the property." by a false representation as to the law governing See, also, Haviland v. Willets, 141 N. Y. 35, 35 N. E. 958; Greene v. Smith, 160 N. Y. 533, 55 N. E. 210; Pomeroy's Eq. Juris. vol. 2 (2d Ed.), § 847. The court here found that the plaintiff was a young man 26 years of age of quite limited business experience, and that he believed and relied upon the false statements of the defendant's adjuster that the policy was void as to the hay, and that he was thus induced to accept, and did accept, the offer for a less amount than the loss sustained. The case is within the principle laid down in Berry v. Am. Central Ins. Co., supra. The conclusion is that the judgment of the Appellate Division should be reversed, with costs, and the judgment entered upon the report of the referee should be reinstated. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, HOGAN, CARDOZO, and POUND, JJ., concur. Judgment reversed, etc. PEOPLE v. GIBSON. 1916.) (218 N. Y. 70) [3, 4] The general rule is that under a contract to work a farm on shares the parties become tenants in common of the crops. Reyn- (Court of Appeals of New York. April 25, olds v. Reynolds, 48 Hun, 142. That would be the case here but for the provision in the 1. EMBEZZLEMENT 26-INDICTMENT-SUFFIcontract that the title to the crops should be in the owner of the farm as security for the ing as an executor of a person named, and havAn indictment charging that defendant, actfaithful performance of the contract by the ing in his possession certain moneys belonging plaintiff until he had fully performed the to the estate, feloniously withheld and approsame. These provisions amounted to a mort-priated them to his own use, is sufficient. gage given by the plaintiff to the owner of the farm on the hay produced. The plaintiff, under well-settled rules, had an insurable interest in the hay notwithstanding the title in the owner of the farm. Berry v. Am. Central Ins. Co., 132 N. Y. 49, 30 N. E. 254, 28 Am. St. Rep. 548; Nugent v. Rensselaer County Mutual Fire Ins. Co., 106 App. Div. 308, 94 N. Y. Supp. 605. [5] It appears plainly enough that the misrepresentations made by the adjuster to the plaintiff after the loss that the insurance on the bay was void misled the latter to his injury. Berry v. Am. Central Ins. Co., supra, resembles in many respects the case under consideration. The court there said: CIENCY. ment, Cent. Dig. §§ 37, 38; Dec. Dig. 26.] [Ed. Note.-For other cases, see Embezzle 2. CRIMINAL LAW 1186(4)-APPEAL-REVERSAL TECHNICAL ERRORS. Errors in admission of evidence, if technical and not affecting defendant's substantial rights, must be disregarded, under Code Cr. out regard to such errors. Proc. § 542, requiring judgment on appeal with [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. 1186(4).] 3. EMBEZZLEMENT SIBILITY. 38-EVIDENCE-ADMIS eys by the executor, the papers on which his In a prosecution for larceny of estate monletters were revoked should not have been received over his objection. [Ed. Note.-For other cases, see Embezzlement, Cent. Dig. §§ 61, 65, 66; Dec. Dig. 38.] 4. CRIMINAL LAW HARMLESS ERROR. 1169(1) APPEAL "The plaintiff was a man of little business experience, although he had education enough to understand the transaction and read the papers which he signed, and he made the settlement voluntarily, without any coercion upon him, but relied upon the representation as to the law governing his case which the defendant falsely made to him. There is no question, of course, but that a court of equity cannot grant relief solely upon a mistake of law. But there was here more than a mistake. There was a surrender of [Ed. Note.-For other cases, see Criminal legal rights intentionally induced and procured 'Law, Cent. Dig. § 3137; Dec. Dig. 1169(1).] Although in a prosecution for larceny of estate moneys by the executor the papers on which his letters were revoked should not have been received over his objection, the error was harmless, when the judge ruled that they should not be read to the jury without defendant's consent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes - 5. CRIMINAL LAW 730(3) CONDUCT OF to have been served upon him. This document was a paper signed by the administrator with the will annexed of the estate of Ruzena Menschik Szabo authorizing the bearer to make a demand upon the defendant for all the money and property belong[Ed. Note.-For other cases, see Criminal ing to the decedent which came into his Law, Cent. Dig. § 1693; Dec. Dig. 730(3).] hands while acting as her executor. When 6. CRIMINAL LAW 706-CONDUCT OF COUN- the administrator was on the stand as a witSEL-PRESENTATION OF EVIDENCE-PRIVIness for the people, the assistant district LEGES TO DOCUMENTS. Since the defendant in a criminal case can- attorney who tried the case called for the not be compelled to produce incriminating docu- | production of this paper "under a notice to ments, counsel should not demand such produc-produce which was served upon counsel for tion; the failure to produce giving rise to un- the defendant on the 16th of March, 1914," favorable inferences. [Ed. Note.-For other cases. see Criminal Law, Cent. Dig. § 1661; Dec. Dig. 706.] 7. CRIMINAL LAW 402(2)-EVIDENCE-ADMISSIBILITY-SECONDARY EVIDENCE. Since the defendant in a criminal prosecution cannot be compelled to testify against himself, or produce incriminating documents, the state may introduce secondary evidence as to the contents of such documents without previous notice to produce the original. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 888; Dec. Dig. 402(2).] Appeal from Supreme Court, Appellate Division, First Department. and asked counsel for the defendant whether he had that paper. The defendant's counsel objected to the question and protested against it, and, when asked why, responded: "Because counsel has absolutely no right to address that question either to me or to the defendant; that he is attempting to transgress, and has transgressed, the constitutional rights of the defendant, and I ask in the light of that that a juror be withdrawn. I protest against the question and I protest further against even its repetition." The court overruled the protest of counsel, and said that, if he denied the receipt of the notice to produce, then the district attorney would have to prove service of it. Counsel for the defendant responded: Burton W. Gibson was convicted of grand larceny. From a judgment of the Appellate Division (169 App. Div. 934, 153 N. Y. Supp. 1132) affirming the judgment of the "I neither deny nor affirm it, and I deny the right either of counsel or court even to question Court of General Sessions, he appeals. Af-in respect to it, and say that it is an infringement of the constitutional rights of this defendinant, and upon that ground I protest and object." firmed. Burton W. Gibson, of New York City, pro. per Edward Swann, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People. WILLARD BARTLETT, C. J. [1] The indictment is good. It charges that the defendant, acting as executor of the last will and testament of Ruzena Menschik Szabo, deceased, and having in his possession certain moneys belonging to her estate, feloniously withheld the same and appropriated the same to his own use. Penal Law (Consol. Laws, c. 40) § 1290, subd. 2. This is sufficient. [2] Some errors in the admission of evidence were committed upon the trial, but, as they were technical, and did not affect the substantial rights of the defendant, they must be disregarded. Code Crim. Pro. 8 542. The assistant district attorney then said that he had the notice to produce with proof of service; whereupon counsel for defendant again objected as follows: "I object to that statement of the district attorney. I ask the court to direct the jury absolutely to disregard it. Will your honor direct the jury to disregard it?". The court then remarked that the jury had nothing to do with this matter, saying to them: "Gentlemen of the jury, this has nothing to do. with the merits of the case at all, and you will disregard it." [6] In view of this direction by the learned trial judge, and in view of the fact that there was uncontradicted proof of the service on the defendant of the demand for any property of the estate still in his possession, we think there was no error in this matter which requires a reversal of the judgment. Assuming that the demand upon the defend [3, 4] The papers upon which the Surrogate's Court made the order revoking the de-ant for the production of the paper was imfendant's letters testamentary should not have been received over the objection of the defendant, but the ruling of the learned trial judge that they should not be read to the jury except with the defendant's consent rendered their admission harmless. [5] The only question which we deem it necessary to discuss relates to the demand by the district attorney upon the defendant that he should produce a document alleged proper, the only manner in which the court could deal with the impropriety without ending the trial was to instruct the jury to pay no attention to the demand; and this was done. In other words, the error was cured in this particular instance. The practice, however, of calling upon defendants in criminal cases to produce incriminating papers alleged to be in their possession is so frequently adopted by zealous prosecutors and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes is so objectionable that we take this occasion to express our disapproval thereof. son in the presence of the jury is to require For [7] Where an incriminating document appears prima facie to be in the possession of the accused, the prosecution may give secondary evidence of its contents without previous notice calling upon the defendant to produce the original; and this rule is not restricted to papers which are the immediate subject of the indictment. See United States v. Doebler, Baldw. 519, Fed. Cas. No. 14,977. In McKnight v. United States, 115 Fed. 972, 54 C. C. A. 358, the defendant was indicted for embezzling the funds of a national bank by causing the bank's money to be paid to persons known by him to be insolvent to be used for purposes of bribery, The government proposed to introduce in evidence a copy of a certain paper whereby the defendant and other aldermen of the city of Louisville agreed to caucus together in order to control legislation and municipal appointments. In the course of the trial, after evidence had been introduced to show that the original paper was last seen in the defendant's possession, the district attorney We are asked not to follow the decision in offered in evidence what purported to be a the McKnight Case because Prof. Wigmore copy thereof. The trial judge then suggested in his elaborate work on the Law of Evithat, if the district attorney, chose, he could dence has pronounced the ruling to be "puredemand the production of the paper, where-ly fallacious and wholly unsound." 4 Wigupon the district attorney proceeded to demand it. Counsel for the defendant denied the right of the district attorney to make the demand, and furthermore declared that there was no such paper in the defendant's possession. There was a conviction which was reviewed by the Circuit Court of Appeals for the Sixth Circuit, consisting of Circuit Judges Lurton, Day, and Severens; and the court in a carefully considered opinion by Day, J., held that it was a violation of the immunity guaranteed by the fifth amendment to the federal Constitution to permit the demand to be made upon a defendant in a criminal case in the presence of the jury to produce a paper containing incriminating evidence against him. This was one of the grounds upon which the judgment of conviction was reversed. more on Evidence, § 2273, note. The decision was rendered by a court two members of which subsequently became Associate Justices of the Supreme Court of the United States. This court has frequently manifested the high respect, which it entertains for the ability and learning of Prof. Wigmore; but in the present case we are compelled to differ from him. We approve the rule laid down in McKnight v. United States, supra, because it seems to us the only effective method of preventing a practice which virtually deprives the defendant in a criminal case of a right guaranteed him by the Constitution. The rule which we thus approve is not available to the defendant in the case at bar, because, as has already been pointed out, the learned trial judge directed the jury to disregard the demand which had been made in their presence. This was equivalent to an instruction that the nonproduction of the paper demanded furnished no ground for an inference of guilt. In the McKnight Case, however, no such instruction was given. Referring to the leading case of Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, in which it was held that the compulsory production of books and papers in a case seeking a forfeiture of estate was within the reasoning of criminal proceedings, Circuit Judge Day declared that this deciIn the brief for the people the case of Holt sion left no room for doubt that the comv. United States, 218 U. S. 245, 252, 31 Sup. pulsory production of a criminating docu- Ct. 2, 6, 54 L. Ed. 1021, 20 Ann. Cas. 1138, ment by the accused when on trial for crime is cited as expressive of views inconsistent was compelling him to testify against him-with the decision in the McKnight Case. We self within the meaning of the fifth amendment to the Constitution. "Nor is it essential to the ends of justice," he added, "that the accused may be thus called upon to produce evidence of a documentary character. The authorities seem very clear that in such cases where a criminating document directly bearing upon the issue to be proven is in the possession of the accused, the prosecution may be permitted to show the contents thereof, without notice to the defendant to produce it. As it would be beyond the power of the court to require the accused to criminate himself by the production of the paper as evidence against himself, secondary evidence is admissible to show its contents." To allow a demand for the production of a document to be made upon an accused per find no inconsistency. A question arose as to whether a blouse belonged to the prisoner and testimony was given to the effect that the prisoner put it on and it fitted him. It was objected that he did this under duress and was thus compelled to give evidence against himself; but the court held that: "The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." It can hardly have been supposed that this language of Mr. Justice Holmes was regarded as at variance with any of the views ex |