[225 N. Y.] Opinion, per ANDREWS, J. [Feb., of his intention so to do. There is no presumption that he would have done so. In any event he has not. So should the jury find for the plaintiff, this is the situation. Forty-five thousand dollars due under the terms of the contract. That sum unpaid through the fault of the defendant. Ten per cent commissions thereon due the plaintiff unless Tilney has canceled the contract. His failure to do so. Therefore, the claim of the defendant is this. Had it had a good title, had it tendered it to Tilney, the latter, after paying $4,000 might have refused to go on with the transaction. Therefore 10% on $4,000 is all that the plaintiff has certainly lost. We do not think it may so take advantage of its own wrong. Usually a purchaser intends to complete his purchase. This is enough to justify an allowance to the plaintiff of commissions on all sums due before the beginning of this action. Not commissions on $150,000, however, as the trial judge held. The plaintiff was to receive his pay, based on 10% of each installment payable from it, as and when the same is received" or should have been received except for the defendant's fault. Until the time arrives when a fixed sum is made payable, under circumstances such as here appear no recovery can be had. We have examined the questions raised by the respondent as to the amendment of the complaint. The trial court correctly disregarded the alleged defect in view of the proceedings before it. If upon a new trial it appears that because of some inadvertent language of counsel necessary allegations were stricken from the complaint, a remedy may be found. The judgment appealed from should be reversed and a new trial ordered, with costs to abide the event. HISCOCK, Ch. J., COLLIN, CUDDEBACK, POUND and CRANE, JJ., concur; CARDOzo, J., dissents. Judgment reversed, etc. 1919.] Statement of case. [225 N. Y.] THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RAYMOND J. CURTIS, Appellant. Crimes motor vehicles violation of statute (Highway Law, ch. 30, § 290, subd. 3) requiring person who injures the person or property of another in operating an automobile to give his name and other facts to the injured person or a designated officer evidence declaragestae when tion of injured person admissible in evidence upon trial of defendant indicted for violation of said statute. res 1. The legislature has directed that an appellate court, in a criminal case, shall give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties (Code Crim. Pro. § 542), and where the jury, upon the trial of a defendant indicted for a crime, if governed by the rule of reason as laid down by the trial judge and guided by the light of human experience in determining the facts, could not have rendered a verdict other than a verdict for conviction, because the defendant's own testimony, taken in connection with the conceded and uncontradicted facts, required such result, the admission in evidence of a declaration of a person injured by the unlawful act of defendant does not affect the substantial rights of the defendant. 2. Where upon the trial of a defendant who, in violation of the Highway Law (L. 1909, ch. 30, § 290, subd. 3, as amd. by L. 1910, ch. 374) and knowing that the automobile which he was operating had collided with a wagon throwing the driver thereof to the street and injuring him seriously, had nevertheless gone on without stopping and giving his name and other facts required by the statute to the injured person or to any police, or other, officer, the judgment of conviction should not be reversed because a witness, who had heard the sound of the collision and was looking out of the window when defendant drove away, and saw the injured man crawling to the sidewalk and heard him call for help and a doctor, was permitted to state what he said. The evidence was admissible because it was a part of the res gesta; the declaration was spontaneous and natural and the circumstances exclude the idea of fabrication. People v. Curtis, 184 App. Div. 924, affirmed. (Argued January 22, 1919; decided February 25, 1919.) [225 N. Y.] Opinion, per MCLAUGHLIN, J. [Feb., APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 21, 1918, which affirmed a judgment of the Jefferson County Court rendered upon a verdict convicting defendant of the crime of violating subdivision 3 of section 290 of the Highway Law. The facts, so far as material, are stated in the opinion. Pardon C. Williams for appellant. Jerome B. Cooper, District Attorney, for respondent. MCLAUGHLIN, J. The defendant was convicted of violating subdivision 3 of section 290 of the Highway Law (Laws of 1909, chap. 30, as amended L. 1910. ch. 374). There have been two trials. The first resulted in a judgment of conviction, which was affirmed by the Appellate Division, but reversed by this court for errors in the admission of evidence, and a new trial ordered (217 N. Y. 304). The second also resulted in a judgment of conviction, which was unanimously affirmed by the Appellate Division, and defendant again appeals to this court. The section of the Highway Law referred to, or so much of it as is pertinent to the question presented by the appeal, reads as follows: "Any person operating a motor vehicle who, knowing that injury has been caused to a person or property, due to the culpability of the said operator, or to accident, leaves the place of said injury or accident, without stopping and giving his name, residence, including street and street number, and operator's license number to the injured party, or to a police officer, or in case no police officer is in the vicinity of the place of said injury or accident, then reporting the same to the nearest police station, or judicial officer, shall be guilty of a felony punishable by a fine of not more than five hundred dollars or by imprisonment for a term not There is little dispute as to the material facts involved. On the 11th of October, 1913, the defendant, a resident of the city of Watertown, was the owner and operator of an automobile. It weighed upwards of two tons and was between fifty and sixty horse power. Between twelve and one o'clock at night on. the day mentioned he, with two persons, one named Gilligan and the other Lytton, started, with the automobile, on Washington street in such city, for a ride. When they reached Chestnut street, which intersects Washington street at right angles, the automobile was running upwards of twenty miles an hour. The top was down and the lamps were lighted. There was also an arc light at the intersection of the streets mentioned. After the car had passed Chestnut street and was about one hundred and seventy feet therefrom, Lytton, who was sitting in the rear seat the defendant and Gilligan being in the front seat-called to the defendant, saying: "Look out, boys, there is something ahead; we are going to catch it." The something to which Lytton referred was a horse and wagon going in the same direction as the automobile, and driven by one Cole. When Lytton spoke to the defendant the automobile was so close to the horse and wagon that notwithstanding the brakes were immediately applied, it nevertheless collided with the wagon, and the force of the impact was such that the automobile, wagon and horse attached thereto, were turned completely around, and when the collision was over they were facing in the opposite direction from which they were previously going. Cole was thrown from his seat to the street and very seriously injured. One thill and the reach of the wagon were broken, and the rear axle bent. The horse was injured, being cut or scratched on the left gambrel, and the automobile somewhat damaged. Immediately following the collision Lytton and Gilligan [225 N. Y.] Opinion, per MCLAUGHLIN, J. [Feb., got out and went to Cole, who was then lying in the street two or three feet in the rear of the automobile. They asked him if he were hurt and he said he was. They took hold of him and undertook to place him on his feet, but he was unable to stand by reason of the injuries he had sustained. Gilligan then went to the defendant, who was sitting in the automobile about seven feet from where Cole was lying, and after remaining there a very short time went back to Lytton and Cole and said: "Come on, he is only winded, only busted up a bit and scared." He then returned to the car and he and the defendant called to Lytton to get into the car, Gilligan saying: 66 Come, get back into the car, he is only busted up a bit. There will be trouble here," and Cole responded, saying: "For God's sake don't leave me here alone." The three got into the automobile and drove away, leaving Cole lying in the street, and before the automobile had gone one hundred and seventy feet, and within ten seconds after it left Cole, the People's witness, Katherine I. Foley, who had been awakened by the sound of the collision and was standing at an open window which faced the spot where the accident occurred, saw the defendant and his two companions drive away, and she also, within that time, saw Cole crawling towards the sidewalk and heard him say, "Oh, my God, get me help; get me a doctor." It is said because this witness was permitted to testify to this declaration of Cole's that the judgment must be again reversed and a new trial ordered. I am unable to agree to this result. I think this evidence was admissible because it was a part of the res gesta. The admission in evidence of the declarations of an injured person constitutes an exception to the general rule that excludes hearsay evidence, and is justified when the declarations are so spontaneous or natural as to exclude the idea of fabrication. (People v. Sprague, 217 N. Y. 373; Greener v. General Electric Co., 209 N. Y. 135.) |