Goelet v. Lawlor

McAdam, J. As the justice at the close of the landlords’ case overruled the various' objections made by the attorneys fór the tenant and under-tenant, and apparently agreed with the landlords in their view of the law, it is ño.t necessary to consider the questions thus raised. There.was no such severance of the tenancy as. would operate to defeat the proceeding. The justice took evidence pro and con, and after reserving his decision finally found for the tenants. As no reasons, have' been assigned for the decision, we will assume from the rulings at the trial that the justice found for the tenants on the facts. This leads to the inquiry whether the exceptions taken by the landlords to the exclusión of evidence require a reversal of the order. The proceeding was instituted by the landlords to recover possession of the premises Ho. 93 Bówéry, known as the Shelhourne. Hotel, upon the ground specified in the fifth subdivision of section 223Í of the Code: The petition, after setting forth the facts, alleged that “ The said premises are now being used and occupied as a bawdy-house and house of assignation for lewd persons for purposes of prostitution, and as a place of resort for such persons ■ for similar purposes.” The charge was denied, and in'their effort to establish it the landlords called several, witnesses, among them police officers, to prove what occurred from June, 1895, up to-October 11, 1895, when the proceeding was begun. 'The. justice excluded all evidence of what occurred prior to October X, 1895, saying he would exclude all' testimony as tó the character .of the premises in the months of J une and September, [61] and admit testimony on that point for a reasonable time prior to the commencement of the proceeding; and, according to the rulings subsequently made, everything which occurred prior to-the latter part of September, 1895, was held not to be within such reasonable time. The landlords’ counsel excepted to the rilling, and stated he proposed to prove that the premises were-kept as a bawdy-house from June continuously. This statement, was made to demonstrate the materiality of the proofs offered, if' the purpose was not otherwise apparent. The occupants of the-premises were the same during the entire period covered by the proposed inquiry, and when a condition of things is once established there is a legal presumption of continuance. Thus, as was-said by the Court of Appeals, in Wilkins v. Earle, 44 N. Y. 192: "A partnership once established is presumed to continue. Life is-presumed to exist Possession is presumed to continue. The fact that a man was a gambler twenty months since justifies the-presumption that he continues to be one. An adulterous intercourse is presumed to continue. So of ownership and nonresidence.” And see McMahon v. Harrison, 6 N. Y. 443; Graham v. Chrystal, 2 Abb. Ct. App. Dec. 263; Smith v. Smith, 4 Paige, 432. The evidence excluded was certainly- material on the question of scienter. ■ It might have established that the same women had from June until October frequented the premises with different men and occupied rooms, so as to exclude the idea of surreptitious immoral use of the premises without the knowledge or acquiescence of those in the responsible control and direction of them. It was-not intended to show isolated acts, but a systematic, continuous-Course of pandering to vice from June to October 11, when the proceeding was instituted. It might, if it had been received, have furnished such strong corroboration of the landlords’ proof as to lead to a different conclusion from that arrived at by the-justice. The allegation in the petition that the premises " are now being used and occupied as a bawdy-house,” etc.* did not necessarily mean that they, at the date of the petition, were for the first time being so used. It opened a broad field of inquiry, whether the premises were then and had prior -thereto been devoted to that purpose, and the longer they had been so used, if the use was-continuous, the stronger the case presented against the eyil-doera. would have become. — - - :—• ....... [62] The offense charged consisted of a series of transactions, and where they intermix, as they do in cases of this kind, the court must go through with the detail. Roscoe’s Cr. Ev. (10th ed.), 90, 91. As in counterfeiting it is competent to receive evidence of other transactions, though they amount to distinct offenses, and of the demeanor of the prisoner on other occasions, from which it might be fairly inferred the prisoner was conscious (of Ms guilt wMle he' was doing the act charged in the indictment, so in regard to the charge of fraud, evidence of contemporaneous frauds may be given in corroboration of evidence of the fraud complained of, and the proofs may, when taken together, clearly. establish the offense. See 1 Phillips’ Ev. (Cow., H. & Edw. Notes), 750, 751, and cases collated in 3 Abb. Dig. (new ed.), 206, par. 3081. In a charge made up of independent acts of', a continuous character, like that in question, it is dangerous to confine the complaining party to a period of two weeks. Courts are more liberal than this in admitting proof of .contemporaneous frauds'. Bliss v. Sickles, 142 N. Y. 649, 650. To put a barrier at such a period and say to a complaining party -that he cannot go beyond it may exclude the strongest proofs he has at hand; and, while the limit may be to an extent discretionary, ■ we think the discretion was not wisely exercised in this instance." ' When an objection to evidence has once been made and overruled, it is not requisite to repeat the objection if subsequent questions call for the same class of evidence relating to the same subject-matter (Church v. Howard, 79 N. Y. 415, 421), and" where competent evidence has been rejected, error is proved and injury will be' inferred. . Greene v. White, 37 N. Y. 405, and kindred cases. For these reasons, and" without passing on the other questions presented by the record, the final order must be reversed and a new trial ordered, with costs to the appellants to abide the event, " Bischobf, J., concurs. Final order reversed and new trial ordered) with costs to appellants to abide event.