and understood. And when that shall be the fact, and the agreement is based upon what is well known and understood, it must in all reason be considered equally effective. By this agreement Powel & Co. took that degree of responsibility upon themselves that the defendants did in the other case, and expressly incurred the obligation to perform it. And under this authority the use and consumption of the coal did not deprive the defendant of that degree of redress by way of damages as would ensure to it the value of its contract. The obligation was intended by its terms to be continuous, and remained available for indemnity after these acts of non-performance had all transpired. And to this effect are the cases also of Norton v. Dreyfuss, 106 N. Y., 90; 8 N. Y. State Rep., 570, and Kent v. Friedman, 101 N. Y., 616, and that of Warren v. Philadelphia Coal Co., 83 Pa., 437, confirms this construction of the agreement.

The authorities which have been relied upon to support the appeal depend upon agreements or facts materially differing from the agreement in this action, by which a plain distinction has been indicated. In The Coplay Iron Co. v. Pope, 108 N. Y., 232; 13 N. Y. State Rep., 480, there was no agreement whatever as to quality, but it was for an article of a specified description. That was No. 1 extra foundry pig iron of the Coplay Iron Co. The terms of sale did entitle the purchasers to iron of that description, but there was no express agreement that what would be delivered should be iron of that quality. And when a different article was delivered, it was for the purchasers to elect whether they would accept or reject it. And, as they did accept, they surrendered all claim that the terms of sale had not been complied with, as there was no independent stipulation binding the vendor to the delivery of the quality of iron described. In the case of Pierson v. Crooks, 115 N. Y., 539; 26 N. Y. State Rep., 492, the articles were agreed to be sold by a somewhat similar description, containing no direct agreement that they should be of any particular quality, and in that respect broadly differing from the agreement made by Powel & Co.

It is true that in the opinion language may be found encroaching in some measure upon the preceding cases sustaining express contracts for quality after the receipt and appropriation of the articles delivered. But no inference can justly arise out of this circumstance, that there was any intention to abridge the principle maintained by these other cases. The case of Studer v. Bleistein, 115 N. Y., 316; 26 N. Y. State Rep., 400, proceeded largely upon an actual acceptance of the plates as a satisfactory performance of the agreement. It affirmed the decision reported in 15 N. Y. State Reporter, 971, and contained in a memorandum in 48 Hun, 620, which is a different case from that mentioned in the reporter's note in the court of appeals reports. These decisions are inapplicable to the present action, and so are those which they have cited and followed. For there was sufficient in this agreement to entitle the defendant's claim for indemnity to be supported by the other authorities which have been mentioned already.

That there was this difference of one dollar a ton between the

coal delivered and that delivered in 1886, was reasonably well proved, sufficiently so to make that a question of fact for the referee, whose conclusion as to it must be accepted and followed by this court. Sherwood v. Hauser, 94 N. Y., 626.

The assignee of Powel & Co. was not bound to proceed with the delivery of the coal under the agreement of its assignors. It was entitled to elect whether it would or would not do that. It did continue that delivery without proposing or insisting upon any other agreement than that which was transferred by the assignment. And it is to be presumed from these facts that the intention of the assignee was to continue the performance of their contract. The assignee had no other authority for sending the coal forward, and no other obligation was entered into by the defendant than that which appeared by the written agreement. And under these circumstances it cannot be held that the defendant became liable to pay the assignee for this coal, any otherwise than that was provided for by the agreement itself which was made with Powel & Co. The price therefore was equally subject to the counterclaim as the price of the coal was which was delivered previous to the assignment.

There was no refusal by the defendant to receive and pay for the quality of coal they were entitled to receive by the agreement. And a refusal to receive any more of the quality of that which was sent was neither a rescission nor a breach of the contract. The defendant was still entitled to its performance and that was not offered, or to an equivalent amount by way of damages. And further to present its right to damages, it was proved that the defendant had purchased a large quantity of coal equal in quality with that supplied by Powel & Co. in 1886, but for a price with the cost of transportation from Rochester, or Charlotte, upon the Lake Shore where it was obtained to Norwood, where the coal mentioned in the agreement was to be delivered, amounting to three dollars and fifty-nine cents a ton. This difference, so far as it was necessary for the extinguishment of the plaintiff's demand, was allowed for that purpose by the referee, together with the damages of one dollar a ton on the coal sent by Powel & Co. and their assignee. That this was a proper item of damages seems to be fairly free from doubt. And its allowance, as well as the evidence sustaining it, appear to be within what has already been held in Wakeman v. Wheeler, etc., Co., 101 N. Y., 202; Bean v. Carleton, 51 Hun, 318; 21 N. Y. State Rep., 220, and Milliken v. Mc Lean, 17 Wk. Dig., 278.

The case was very carefully considered by the referee, whose opinion contains a very complete examination of the law and the evidence applicable to it. And for the reason assigned by him, as well as those now presented, as there are no other objections entitled to be specially examined, the judgment should be affirmed, with costs.

The allowance made of additional costs in the sum of $750 was warranted by the aggregate of the amounts in controversy. The case was difficult and extraordinary within the significance of that N. Y. STATE REP., VOL. XXXVI.

84

phrase, as it has been employed in § 3253 of the Code of Civil Pro. And the order for the allowance should be affirmed, with ten dollars costs only, there being no disbursements on this appeal from that order.

VAN BRUNT, P. J., and BRADY, J., concur.

CHARLES GILPIN, JR., App'lt, v. JOHN DALY, Resp't.

(Supreme Court, General Term, First Department, Filed February 11, 1891.) BEFORE TRIAL-GAMING-PENAL CODE,

1. DEPOSITIONS-EXAMINATION

$ 342.

In an action to recover moneys of a foreign corporation alleged by the complaint to have been taken by its treasurer and lost by him at a gambling house maintained by the defendant, Daly, and other persons unknown, Held, that the "proceeding" was within, and the complaint involved an "investigation" for a violation of a provision of chap. IX of the Penal Code, and that § 342 of said chapter, providing that a person shall not be excused from testifying in an investigation or proceeding for a violation of said chapter because his testimony would tend to convict of a crime, but that such testimony shall not be used against him in a criminal action, applied; that hence an order requiring the defendant, Daly, to appear and testify before trial, was properly granted, and that he was not excused from testifying.

2. SAME.

Said § 342 Penal Code is in the line of the policy of this state, as shown in 1 Revised Laws, 153, § 3, and in 1 R. S., m. p. 663, 664, which is to compel the receiver of moneys by gambling to give evidence to support an action for the recovery of such moneys, and said § 342 must be held to cover in one section all the previous provisions of the Revised Statutes on this subject.

APPEAL from an order vacating an order for the examination of the defendant as a witness for the plaintiff before the trial. John L. Cadwalader, for app'lt; John Graham, for resp't.

DANIELS, J.-This action has been brought to recover the sum of $5,500, moneys owned by the Glamorgan Iron Company, a corporation existing under the laws of the state of Pennsylvania, and charged to have been lost by gaming at a gaming establishment, in whole, or in part, maintained by the defendant at 39 West Twenty-ninth street in the city of New York. It is alleged that these moneys were wrongfully taken by the treasurer of the company and lost by gambling at that establishment, and won by, and paid to, this defendant and other persons intended to be included with him as defendants in the action. After the moneys had been lost in this manner, the company made an assignment for the benefit of its creditors to the plaintiff, and it is under the title so acquired that he has brought this action for an accounting and recovery of these moneys. And if they were in this manner lost and won either by the defendant alone, or acting in concert with other persons, then there seems to be no well-founded objection standing in the way to prevent the plaintiff from maintaining the action.

The affidavits on which the order for the examination of the defendant was made, have complied in their formal statements with all the requisites prescribed for that object by the Code of

Civil Procedure. And it is shown by that of the plaintiff that he is dependent upon the information expected to be obtained from the defendant for his ability to connect him with this estabment as one of the proprietors thereof, and to subject him to a liability to refund this money. His examination before the trial is shown to be necessary to obtain evidence to support the action, and there is a probability that it can be derived from no other source. It is not liable, therefore, to the objection taken to its general insufficiency, for it has complied with all that has been exacted by the case of Jenkins v. Putnam, 106 N. Y., 272; 8 N. Y. State Rep., 710, and the other authorities brought on behalf of the respondent to the attention of the court.

The order for the defendant's examination was not vacated because of any formal defect in the affidavits on which it was made. But that was ordered upon the objection stated in the affidavit of the defendant, that he is not obliged to answer under oath, generally, or specifically, any of the allegations implicating or connecting him with gambling, or the pretended gambling transactions, charged in the moving affidavits. And it has been declared by the law in general terms that a person will not be required to give evidence having a tendency to prove that he has been guilty of a crime. And the principle has been applied in suits in equity, where it has been held that a defendant would not be directed to answer on oath, when his answer must have that effect. McIntyre v. Mancius, 16 Johns., 592.

But the protection of the public, as well as of its individual members, has from time to time induced the enactment of legislative exceptions to this general rule. They have been framed more effectually to discover the existence of offenses committed in seclusion and concealment by bringing their participants before the courts and compelling them to disclose their own participation in and knowledge of these offenses, but at the same time excluding the use of their disclosures as evidence against the person or persons making them in any criminal prosecution. And the loss and gain of money by gaming, or gambling, has been considered to be a proper subject for this description of legislation. Accordingly, in the revised laws of this state, in 1813, after declaring gaming to be unlawful, and providing a remedy for the recovery of the money thereby lost, it was provided that every person liable to suit under its provisions should be compellable to answer upon oath such bill as should be exhibited in the court of chancery against him for discovering the money or other things won at play contrary to the intent and meaning of the act. And in the

action the court was thereby empowered to proceed and decree thereupon, and enforce the decree, as was usual in other causes in the court. 1 Revised Laws, 153, § 3. And that was made to operate as a discharge of the defendant from further punishment, forfeiture or penalties incurred in or about the subject-matter of the suit.

These provisions disclosed it to have been the policy of this state, at that early day, to provide for the redress of the wrongs produced by gaming, by extorting from the winner the evidence

he might be able to give in the way of supporting an action for the recovery of money lost by gaming. And they were followed by others made a part of the Revised Statutes in 1830, enlarging and rendering them still more effectual, for in addition to the continuance of the obligation of the winner to answer a bill of discovery, and the power vested in the court by its decree to compel the return of the money, it was declared that no person, other than the parties in the cause, should be incapacitated or excused from testifying touching any offense committed against any of the preceding prohibitory provisions of the law, by reason of his having played, bet or staked at any game, but his testimony should not be used in any suit or prosecution thereby authorized against himself. 1 R. S., 663, §§ 18,

19.

These two sections provided for securing a complete discovery of alleged gaming transactions, first by the evidence of all persons having knowledge concerning them who should not be parties to the action, and secondly, by the answer on oath of the party proceeded against to the bill of discovery. And the answer was not deprived of any of its effect by the next section, declaring that it should not be used as testimony in any case against the person making the discovery, for that must have been intended to relate to any other suit than the suit in which the discovery should be made, as the decree in that suit was allowed to compel the party to it to return the money it should be brought to obtain. By these sections complete authority was supplied for obtaining the evidence of all persons participating in or having knowledge of gaming transactions, and for the recovery of the money won thereby. They included all that could be required or provided, for, in this class of cases, every person was required to give his evidence, either when sworn and examined as a witness or by answering on oath the bill of discovery.

And it was in this state of the law that the Penal Code was enacted in 1881, which, by § 342, declared that "No person shall be excused from giving testimony upon any investigation or proceeding, for a violation of this chapter, upon the ground that such testimony would tend to convict him of a crime, but such testimony cannot be received against him upon any criminal investigation or proceeding.

It could not have been intended that this section should in any effect abridge the efficiency of what had previously been enacted upon this subject. But as the bill of discovery had been generally abolished, the intention was to combine in one general section, as this is, all that had previously existed in these two sections of the Revised Statutes. There was no cause for reducing or restricting the preceding law, but there was for changing its form, to render it harmonious with the progress which had been in other respects attained. And that is probably all that was designed to be accomplished by this change of language. This probability is also confirmed by chapter 593 of the Laws of 1886, which by its first section repealed the two sections already mentioned of the Revised Statutes That certainly would not have been done without the legislative understanding that this section of the