* * the judicial settlement of the accounts of the defendants. The fact of the matter is it was never contemplated that this complaint should be dismissed upon the merits, and putting those words in the judgment was incorporating something that was not contemplated on the trial, and is not disclosed by the record, and it was therefore improper." We think that the judgment in question is not a bar, because the presumption from the record that the verdict was not directed on any issue involving the merits has not been rebutted. but, on the other hand, it has been confirmed by the extrinsic evidence. The insertion of the words "on the merits" in the postea was wholly without authority, and the motion to strike out, whether necessary or not, was proper, be cause they were inserted without right, and tended to mislead. Code Civ. Proc. § 1209. The power of the Supreme Court to grant the order is challenged by the defendants under sections 724, 1282, and 1290 of the Code, because the motion was not made within one year, nor even within two years, after the filing of the judgment roll. It is to be observed that the motion was not to set aside the judgment, but to make it conform to the decision. This the court had inherent power to do, even if statutory authority is wanting. "The whole power of the court to relieve from judgments taken through 'mistake, inadvertence, surprise or excusable neglect,' is not limited by section 724; but, in the exercise of its control over its judgments, it may open them upon the application of any one for sufficient reason, in the furtherance of justice. Its power to do so does not depend upon any statute, but is inherent, and it would be quite unfortunate if it did not possess it to the fullest extent." Ladd v. Stevenson, 112 N. Y. 325, 332, 19 N. E. 842, 844 (8 Am. St. Rep. 748). "The power does not depend upon section 724 of the Code, but it exists independently of that, and inheres in the very constitution of the court." Vanderbilt v. Schreyer, 81 N. Y. 646, 648; McCall v. McCall, 54 N. Y. 541, 548; Furman v. Furman, 153 N. Y. 309, 314, 47 N. E. 577, 60 Am. St. Rep. 629; Matter of Henderson, 157 N. Y. 423, 426, 52 N. E. 183; Matter of Cartier v. Spooner, 118 App. Div. 342, 344, 103 N. Y. Supp. 505. The delay in making the motion, as the learned justice who decided it held, "was fully and satisfactorily explained." The order of the Appellate Division is reversed, and that of the Special Term affirmed, with costs in both courts; the first question certified is answered in the affirmative, and the second in the negative. CULLEN, C. J., and HAIGHT, WERNER, WILLARD BARTLETT, HISCOCK, and CHASE, JJ., concur. Ordered accordingly. (198 N. Y. 336) NORCROSS v. WILLS. (Court of Appeals of New York. April 26, 1910.) 1. CONTRACTS (§ 152*) CONSTRUCTION TERMS OF CONTRACT, When parties have made their contract, it is the duty of courts to enforce it, without regard to the fact that, in the light of subsequent events, a hardship may be worked. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 732-735; Dec. Dig. § 152.*] 2. CONTRACTS (§ 299*)-BUILDING CONTRACT— SUBCONTRACTOR-DELAYS LOSSES. Ordinarily, as between a subcontractor and the contractor, who is in control of the general work to be performed, the law places the latter under an obligation to the former to make good all losses consequent upon delays in the progress of the work not attributable to the former. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1372-1400; Dec. Dig. § 299.*] 3. CONTRACTS (§ 299*)-BUILDING CONTRACTSUBCONTRACTORS-OBLIGATIONS OF PARTIES -DELAY-LIABILITY. Where a party has contracted to do certain work in a certain time, a corresponding obligation will be implied that the other party, to whom the agreement runs, shall be answerable for all losses caused by delays, which his control of the work should make him responsible for, either because he might have prevented them or because the contract itself was not so framed as, in the event of their happening, either to exempt him, or to permit the inference of an intention that responsibility should rest elsewhere. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1372-1400; Dec. Dig. § 299.*] 4. CONTRACTS (§ 299*)-BUILDING CONTRACTCONSTRUCTION-SUBCONTRACTORS. Where the express provisions of a contract between a subcontractor and contractor referred the former to the owner's architects, and offset their delays in furnishing plans by extensions of time for completion, the subcontractor could not enforce a claim against the contractor for damages for such delays of the architect. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 299.*] 5. CONTRACTS (§ 299*)-BUILDING CONTRACTCONSTRUCTION-SUBCONTRACTOR. Under a contract between a subcontractor and contractor stipulating for liquidated damages for delay in the completion by the subcontractor, but, if he was not at fault and the delay was caused by the contractor or the architects, there was to be an extension of time equivalent to the time lost, the contractor was not liable for the default of the architects in furnishing plans. | [Ed. Note. For other cases, see Contracts, Dec. Dig. § 299.*] 6. CONTRACTS (§ 199*)-BUILDING CONTRACTS -CONSTRUCTION. Where a contract between a subcontractor and contractor provided that the architects were "acting for the purposes of this contract as agents of the owners,' a subsequent provision that the architects should furnish the subcontractor further drawings necessary to detail and illustrate the work was not a covenant of the contractor, since, when read in connection with the part quoted, it simply meant that the subcontractor was to look to the architects for the delivery of the drawings. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 199.*] For other cases see same topic and section NUMBER in Dec. & Am. D.gs. 1907 to date, & Reporter Indexes 7. CONTRACTS (§ 198*)-BUILDING CONTRACT-| the time lost by reason of any or of all the CONSTRUCTION. A provision in a contract between a subcontractor and contractor that the contractor should "provide all labor and material not included in this contract in such manner as not to delay the material progress of the work" referred to what the contractor had undertaken to do, or furnish, for the owner, aside from the subcontractor's part of the work, and was an agreement by the contractor that the rest of the work should be proceeded with, so far as he was in control, without any delay which would interfere with the subcontractor's performance. [Ed. Note.-For other cases, see Contracts, Dec. Dig. § 198.*] Appeal from Supreme Court, Appellate Division, First Department. causes aforesaid." The defendant admitted his liability for the balance demanded as due upon the contract, and the only issue which was litigated upon the trial was his liability for losses claimed by the plaintiff to have been suffered by reason of delays of the architects in furnishing the detailed drawings and plans necessary to be had by him. The elements of these losses were the carrying expenses of quarries reserved and equipped for operation, in order to execute the contract, and kept in idleness by the delays. At the conclusion of the trial, the court directed a verdict for the balance, which was admitted to be due under the contract, and as to other claims for damages the complaint was, dismissed. This disposition of the case has been affirmed by the Appellate Division Af- and the only important question upon this appeal of the plaintiff for our consideration Action by Orlando W. Norcross against Charles T. Wills. A judgment for plaintiff for insufficient relief was affirmed by the Appellate Division (130 App. Div. 470, 114 N. Y. Supp. 969), and plaintiff appeals. firmed. William L. Bowman, for appellant. Rob- is whether, under the contract of the parties, ert Thorne, for respondent. GRAY, J. By this action the plaintiff has sought to recover from the defendant the balance due upon a contract between them, and, in addition, damages for its alleged breach. When made, the defendant was under contract with Andrew Carnegie for the construction of a residence, which was to be performed under the direction of Babb, Cook & Willard, architects, and plaintiff's contract was for the furnishing of the granite work called for in that contract. He agreed that he would provide all the material and perform all the work in the furnishing and the setting of the granite necessary in the completion of the residence, "under the direction and to the satisfaction of Messrs. Babb, Cook & Willard, architects, acting for the purposes of this contract as agents of the owner." By the next article of the contract it was provided that the "architects shall furnish to the party of the first part (the plaintiff) such further drawings, or explanations, as may be necessary to detail and illustrate the work to be done," which the plaintiff was to conform to "as part of this contract." Another article of the contract required the plaintiff to complete the work comprehended within the agreement on or before a date mentioned. In the event of a failure to so complete it, the sum of $25 was mutually agreed upon as liquidated damages for each day's delay. But, by another article, it was provided that "should the party of the first part be obstructed or delayed in the prosecution or completion of the said work by the act, neglect, delay or default of the party of the second part (the defendant), or the architects, or of any other contractor employed by the party of the second part upon the work, then the time herein fixed for the completion of the work shall be extended for a period equivalent to * the defendant can be made answerable for any losses caused by the default of the architects. The argument is that the positive duty imposed upon the plaintiff must be considered in the light of a corresponding obligation to be implied as resting upon the defendant "to furnish the necessary drawings and plans so as to enable the plaintiff to complete the work within the contracted time." It is contended that without a construction which would imply such an obligation on the part of the defendant the mutuality of contract would be destroyed, and it is insisted that the architects "acted in a twofold capacity," which is to say they were as much the agents of the defendant as those of the owner. The appellant refers to that provision of this contract, under which the architects were to furnish to the plaintiff such further drawings as might be necessary, as a covenant of the defendant, and he, also, refers to the defendant's agreement "to provide all labor and materials not included in the contract in such manner as not to delay the material progress of the work." The relative obligations of these parties are to be determined by the terms of their contract, and they are not left to surmise or inference. Their determination is not to be influenced by any considerations save those justified by their agreements; for, when parties have made their contract, it is the duty of courts to enforce it, as they have elected to make it, without regard to the fact that in the light of subsequent events a hardship may be worked. Coulter v. Board of Education, 63 N. Y. 365. Ordinarily, as between a subcontractor and the contractor, who is in control of the general work to be performed, the law places the latter under an obligation to the former to make good all losses consequent upon delays in the progress of the work, not attributable to the former. The rule may be assumed to be well gave the absolute control of the work to Babb, Cook & Willard, the owner's archi tects, and, with such knowledge, he was also willing to agree in his contract to perform his work under their direction and to their satisfaction "acting for the purposes of this contract as agents of the owner." settled by the authorities, and it is founded | tract with the owner of the property, which in justice, that, where a party has assumed a positive obligation of the nature of this plaintiff's agreement, a corresponding obligation, if not expressed in terms, will never theless be implied as resting upon the other party, to whom the agreement runs, to be answerable for all losses caused by delays, which his control of the work should make him responsible for; either because he might have prevented them, or because the contract itself was not so framed as, in the event of their happening, either, to exempt him, or to permit the inference of an intention that responsibility should rest elsewhere. Reference to the cases cited of Allamon v. Mayor, etc., of Albany, 43 Barb. 33, Del Genovese v. Third Ave. R. R. Co., 13 App. Div. 412, 43 N. Y. Supp. 8, affirmed 162 N. Y. 614, 57 N. E. 1108, and Mansfield v. N. Y. C. & H. R. R. R. Co., 102 N. Y. 205, 6 N. E. 386, will illustrate the application of this rule of mutuality of obligation. In Mansfield v. N. Y. O. & H. R. R. R. Co. the action was by the contractor against the owner to recover damages for a breach of the contract in the failure by the latter to have the foundations ready for the erection of the elevator contracted for. Time was of primary importance under the contract and a penalty in damages was stipulated for, in the event of the contractor's delay in completion. In that case the law was held to require "the implication of a covenant on the part of the defendant to prepare the foundations in question so as to have them in a condition to enable the contractors to prosecute their work to the utmost advantage and economy." The defendant's contention that the absence of a provision fixing a time for their being in readiness left it to the determination of the defendant's engineer was deemed unreasonable. "Any other construction," it was said. "would destroy the mutuality of the agreement and put it practically in the power of one party to defeat performance by the other." Page 212 of 102 N. Y., page 389 of 6 N. E. This just rule, which the authorities sanction, will have its proper application in all like cases; but it is made inapplicable to the present case by the express and peculiar provisions of the contract, which, as between subcontractor and contractor, refer the former to the owner's agents, the architects, and offset their delays in furnishing plans by equivalent extensions of time for completion. Giving to the appellant the benefit of the rule in its fullest extent, he is met with an insuperable difficulty, in the enforcement of a claim for damages suffered from delays of the architects, by the explicitness of the agreements. They negative the assumption that it was within the contemplation of the parties that any obligation rested upon the contractor to respond for such defaults and compel the construction that the contrary was intended and provided for. The plaintiff knew of the defendant being under a con It is of some significance in stipulating for liquidated damages, in the event of a delay in the completion of the work by the plaintiff, where he was not at fault and the delay was attributable to the defendant, "or the architects," that there was to be an extension of the plaintiff's time for completion, equivalent to the time lost by reason of the delay thus caused. However we regard the provisions of this contract, we find no room for the construction that the defendant was to be held for the default of the architects in furnishing plans. Nor is the argument sound that the second article, which provides "that the architects shall furnish to the party of the first part (plaintiff) such further drawings, as may be necessary to detail and illustrate the work to be done," etc., was a covenant of the defendant. That article is to be read in connection with what had been agreed to in the previous article, namely, that the architects were "acting for the purposes of this contract as the agents of the owners," and so read it simply means that the plaintiff was to look to them for the delivery of the drawings. The argument, based upon the article that the contractor was "to provide all labor and materials not included in this contract in such manner as not to delay the material progress of the work," does not avail the appellant. That plainly had reference to what the contractor had undertaken to do, or furnish, for the owner, aside from the plaintiff's part of the work. It was an agreement by the contractor that the rest of the work of construction should be proceeded with, so far as he was in control, without that delay which would interfere with plaintiff's performance. Such a question is not here. While, if this contract had not explicitly declared upon the subject of the architects, in defining their agency and control, the contractor might, with some reason, be held answerable for losses to the subcontractor from a delay in receiving the working drawings, that limitation is controlling, and the further provision, extending the plaintiff's time for completion proportionately to the delay of the architects, emphasizes the intended exemption of the contractor in such event: I think that the determination reached by the courts below was correct, and therefore that the judgment appealed from should be affirmed. CULLEN, C. J., and EDWARD T. BARTLETT, VANN, WILLARD BARTLETT, and CHASE, JJ., concur. HAIGHT, J., absent. Judgment affirmed, with costs. (198 N. Y. 329) PEOPLE v. WALKER. (Court of Appeals of New York. April 26, 1910.) 1. RECEIVING STOLEN GOODS (§ 1*)-WHAT CONSTITUTES THE CRIME. en * * * Pen. Code, § 550, provides that "a person, who buys or receives any stolen property ** knowing the same to have been stolor who corruptly, for any money, property, reward, or promise or agreement for the same, conceals, withholds, or aids in concealing or withholding any property, knowing the same to have been stolen, * is guilty of criminally receiving such property, and is punishable," accordingly. Held that, to constitute a crime thereunder, the property must have been stolen by some one and have been bought, received, concealed, or withheld by one who must have known it was stolen. [Ed. Note. For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 1-3; Dec. Dig. § 1.*] 2. RECEIVING STOLEN GOODS (§ 3*)-ELEMENTS OF OFFENSE-FELONIOUS INTENT. While Pen. Code, § 550, relating to the crime of receiving stolen property, does not expressly so provide, it necessarily implies that the action of accused must have been taken with felonious intent. [Ed. Note.-For other cases, see Receiving Stolen Goods, Cent. Dig. §5; Dec. Dig. § 3.*] 3. CRIMINAL LAW (§ 742*)-TRIAL-QUESTIONS FOR JURY. The plea of not guilty and the presumption of innocence make the credibility of every witness for the people a question of fact for the jury. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1138, 1719-1721; Dec. Dig. § 742.*] 4. CRIMINAL LAW (§ 757*) - TRIAL - QUESTIONS FOR JURY. Within the limits of sound discretion, the court may comment on the credibility of witnesses, but cannot decide it, for that is the 'exclusive duty of the jury, and it cannot withdraw any controlling fact which depends on the credibility of witnesses even of the highest character and standing. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1772-1785; Dec. Dig. § 757.*] 5. CRIMINAL LAW (§ 738*)-TRIAL-QUESTIONS FOR JURY. No matter how conclusive the evidence, and assuming that it was wholly uncontradicted and that the evidence was all pointed one way, each of the fundamental facts necessary to the offense is for the jury to pass on. [Ed. Note. For other cases, see Criminal Law. Cent. Dig. §§ 1705, 1707; Dec. Dig. § 738.*] 6. CRIMINAL LAW (§ 753*)-TRIAL-DIRECTION OF VERDICT. The court cannot direct a verdict of guilty even in a case of the most trivial importance. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1728; Dec. Dig. § 753.*] 7. CRIMINAL LAW (§ 761*)-TRIAL-DIRECTION OF VERDICT. When the court in a prosecution for receiving stolen property, after charging that there was no question as to the property being in defendant's possession, refused without qualification to charge that it was a question of fact whether the property was at any time in defend ant's possession, it, in effect, directed a verdict as to a vital element of the crime. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764; Dec. Dig. § 761.*] 8. CRIMINAL LAW (§ 661*)-EVIDENCE-FACT ADMITTED-NECESSITY OF PROOF. Where a fact, even if of great importance, is admitted by defendant or his counsel in open court during trial, it is established by the admission, and no evidence of it need be given. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 758; Dec. Dig. § 661.*] 9. CRIMINAL LAW (§ 761*)-TRIAL-QUESTIONS FOR JURY. Where a fact is admitted by defendant or counsel in open court during trial, the court may properly charge that it is established, with the exception that every constituent part of the crime must be left to the jury if timely request is made. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 761.*] 10. CRIMINAL LAW ($ 761*)-TRIAL-QUESTIONS FOR JURY. If a fact essential to the crime, though not expressly admitted, is undisputed and is treated during trial by all concerned as established, it would not be reversible error to so charge, unless defendant asks to have it submitted, in which case the court must submit it accordingly. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764; Dec. Dig. § 761.*] -- APPEAL RE 11. CRIMINAL LAW (§ 1186*) VERSAL-UNIMPORTANT Error. Refusal to submit to the jury a fact essential to the crime is not a technical error, or one not affecting a substantial right, which the Code (Cr. Proc. § 542) permits the court to disregard in giving judgment. [Ed. Note.-For other cases. see Criminal Law, Cent. Dig. § 3219; Dec. Dig. § 1186.*] Appeal from Supreme Court, Appellate Division, Fourth Department. Eugene B. Walker was convicted of receiving stolen property, and, the conviction being affirmed by the Appellate Division (134 App. Div. 909, 118 N. Y. Supp. 1132), he appeals. Reversed. There were two counts in the indictment against the defendant. By the first he was charged with feloniously and criminally buying and receiving from Arthur Greenwood and others certain property, consisting of whips, lap robes, and the like, which had been stolen, knowing the same to have been stolen. By the second count he was charged with corruptly and for reward concealing and withholding said stolen property, knowing it to have been stolen. found a general verdict of guilty, and the defendant was sentenced to imprisonment for not less than two years and six months and not more than four years. The judgment entered accordingly was unanimously affirmed by the Appellate Division. The jury George B. Dolsen, for appellant. Freelon J. Davis and William B. Baker, for the People. ** ** * * * VANN, J. (after stating the facts as above).] to the possession of the defendant, and (3) The statute relating to the subject of this did he know at any time after that that they appeal, so far as now material, provides that were stolen property-all those are questions "a person, who buys or receives any stolen for you to decide. * ** I call your atproperty knowing the same to tention to certain parts of the evidence which have been stolen * or who corruptly, you are to consider as to whether or not the for any money, property, reward, or prom- defendant knew that it was stolen property. ise or agreement for the same, conceals, with- There is but one question here. There is holds, or aids in concealing or withholding no question about its being stolen and that any property, knowing the same to have been it was in his possession. That is not denied. * * is guilty of criminally re- No one denies it. * stolen, * * If you find that ceiving such property, and is punishable" ac- at' any time after the goods went on to the cordingly. Pen. Code, § 550. premises of the defendant, which the evidence apparently shows to be the 6th of last August, if during any of that period of time down immediately before they were recovered he knew that these goods had been stolen, then he is guilty of receiving stolen property, knowing it to have been stolen. * * If you find that they were stolen, of which there is no question, and in his possession, and e knew that they were stolen, there is but one plain duty for you to do. If you find he contrary, there is but one thing for you to do, and that is an acquittal." At the close of the charge the defendant's counsel too an exception to what the court "said in substance: I think there is no question as to the property, referring to the property at the store, being in possession of the defendant." By the Court: "Take your exception." By Defendant's Counsel: "I ask the court to charge that it is a question of fact whether the property was at any time in the possession of the defendant. Of course, you remember there were three parties that had access to the store." By the Court: "No; I decline to charge that. (Exception).” Thus there must be three concurring facts to constitute the crime: (1) The property must have been stolen by some one. (2) It must have been bought, received, concealed, or withheld by a certain person. (3) Such person must have known that the property was stolen. While the Code does not expressly so provide, by necessary implication the action of the accused person must have been taken with felonious intent, as other wise possession by officers of the law engaged in the detection and punishment of crime, as well as other cases of special but innocent possession, might come within the statute when literally read. Upon the trial evidence was given by the professed thief and others tending to show that the property was stolen. This evidence was uncontradicted. Evidence was also given by the professed thief and another, both of whom were discredited as well as sustained by testimony relating to character, tending to show that the defendant had the property in his manual possession, and, aside from this, other evidence tended to show that some of the property was in a block occupied by the defendant, and the rest in a barn on a farm belonging to him and in his possession, two miles from his residence. Several persons had access to both buildings. All this evidence was uncontradicted, but the jury could have disbelieved the evidence of the witnesses whose testimony was challenged by impeachment, and the other evidence relating to possession by the defendant was subject to diverse inferences, although not in a marked degree. The bulk of the evidence related to the question whether the defendant knew that the property was stolen, and upon this subject there was a conflict, although the defendant was not sworn. * The court charged the jury that "there is no dispute as to the fact that certain articles of personal property were stolen from the barn of Mr. Ingersoll on the night of the sixth of August last. The boy, Greenwood, tells you that he was the one that went there and stole the articles and tells you where he took them. There is no dispute of that evidence at all. All questions of fact are for you to decide. I cannot decide questions of fact. I can tell you what the law is and that you are bound to follow, but as to the questions of fact in this case-(1) were the articles stolen, (2) did they come in We should hesitate about reversing the judgment on the exception to the charge alone, for the remark of the court excepted to, when read in connection with all that was said upon the subject, might be regarded as a comment on the evidence rather than an instruction that certain essential elements of the crime had been established as matter of law. Sindram v. People, 88 N. Y. 196, 202. The exception to the refusal to charge, however, cannot be overlooked without establishing a precedent that might endanger the liberty of innocent persons charged with crime. McKenna v. People, 81 N. Y. 360, 362; Stokes v. People, 53 N. Y. 164, 180, 13 Am. Rep. 492. It was necessary for the people to establish by legal evidence the three elemental facts already pointed out, constituting the crime charged. The evidence introduced to prove these facts involved the credibility of witnesses. The plea of not guilty and the presumption of innocence make the credibility of every witness for the people in a criminal action a question of fact for the jury. Within the limits of sound discretion the court may discuss and comment upon that question, but cannot decide it, for that is the exclusive duty of the jury, established by the practice of many generations. The court cannot withdraw from them any controlling fact which |