App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1902. "(A.) The party of the second part will furnish all the labor and materials at his own cost and expense, necessary or proper for the purpose, and in a good and substantial and workmanlike manner perform the necessary work for facing bank in front of Old Enginehouse, High Bridge, with dry stone protection wall. * ** "(B.) To prevent all disputes and litigation, it is further agreed by and between the parties to this contract, that said Engineer shall, in all cases, determine the amount or the quantity of the several kinds of work which are to be paid for under this contract, and he shall determine all questions in relation to said work and the construction thereof; and he shall in all cases decide every question which may arise relative to the execution of this contract on the part of the said Contractor, and his estimate and decision shall be final and conclusive upon the Contractor; and such estimate and decision, in case any question shall arise, shall be a condition precedent to he right of the party of the second part to receive any money under this agreement. * * * "Earth excavation will include the excavation of all materials not included in rock excavation. They shall conform to such lines and levels as may be given by the Engineer, and deposited in such places as he may direct." James A. Dunn, for the appellant. Theodore Connoly, for the respondent. PATTERSON, J.: The plaintiff was employed under a written contract by the city of New York to do certain work, consisting of facing a bank in front of the Old Engine House, at Highbridge, with a dry stone. protection wall, and under that contract he was to receive fifty cents per cubic yard for the embankment. He claims that he constructed under the contract 2,689 cubic yards of embankment and was entitled to receive, at the price of fifty cents per cubic yard, the sum of $1,434.50, of which he has been paid all, except the sum of $967.50. The defendant admits the contract, and sets up as a separate defense that the plaintiff expressly agreed in and by the contract that there was to be earth excavation and rock excavation and that the former should include all not included in rock excava FIRST DEPARTMENT, FEBRUARY TERM, 1902. [Vol. 69. tion and that such excavation should conform to lines and levels to be given by the engineer and the material excavated should be deposited in such places as the engineer might direct; that pursuant to the provision of the contract, the engineer directed the plaintiff to deposit on the line and level of the proposed embankment 934 cubic yards of excavated earth, and that plaintiff complied with such directions. The defendant also sets up as a separate defense that the plaintiff expressly agreed that to prevent all disputes and litigation the engineer should in all cases determine the amount or the quantity of the several kinds of work which were to be paid for under said contract; and that he should determine all questions in relation to said work and the construction thereof; that his estimate and decision should be final and conclusive upon the contractor and that such estimate and decision, in case any question should arise, should be a condition precedent to the right of the contractor to receive any money under the agreement. Then the defendant sets up that the engineer made a final estimate and decision and issued a final certificate wherein he states the whole amount of work done by the plaintiff and also the value of such work done according to the terms of the contract; that the certificate was to the effect that the plaintiff had excavated 934 cubic yards of earth and that he had earned $967.50 and no more, and the payment of $967.50 is set up. Upon the trial it was agreed that the plaintiff excavated 934 cubic yards of earth and that he was entitled to be paid for that excavation. It was also admitted that the engineer in charge of the work directed the plaintiff to take 934 yards of excavation and place it in the embankment. The claim of the plaintiff is that he is entitled to be paid under the contract for the 934 cubic yards of earth thus placed in the embankment. The final certificate of the engineer was used in evidence and it was conceded that the city had paid according to that certificate. This certificate is conclusive. It is not attacked for fraud, nor is there any allegation in the complaint of a mistake made in the certificate by the engineer. The plaintiff stands merely upon the terms of the contract. The fourth specification of the contract relating to the excavation of earth, for which excavation the plaintiff was paid, requires the contractor to deposit it where the engineer should direct, and that was done. The argument of the plaintiff App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1902. seems to be that, inasmuch as he was to furnish the material for the embankment and be paid for the labor of placing it, he is entitled to recover. That is clearly not so. The material put in the embankment was apparently the property of the city. The contractor was bound to deposit it as the engineer instructed him. He acquiesced in putting it in the embankment. He was paid for excavating and depositing it. He neither furnished the material nor the labor of depositing it, independently of his obligation under the fourth specification. He cannot now recover for this material and for the labor for which he has already been paid, upon the theory that he was not permitted to furnish the material and supply the labor which would have been required in the performance of the work on the excavation, which seems to be the basis of his claim. He acquiesced in the direction of the engineer, and did that which he was required to do under the fourth specification of the contract. The certificate stands in the way of his recovery," even if he had not acquiesced in the demand of the engineer. The judgment was right and should be affirmed, with costs. VAN BRUNT, P. J., O'BRIEN, MCLAUGHLIN and LAUGHLIN, JJ., concurred. Judgment affirmed, with costs. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANCESCO DESCHESSERE, Appellant. Sodomy-conviction on the uncorroborated testimony of an imbecile, not sustained -if the witness be intelligent he is an accomplice - effect of no specific provision as to corroborative testimony in respect to this particular crime. A conviction of the crime of sodomy will not be sustained upon the uncorroborated testimony of the complaining witness, a youth seventeen years of age, an imbecile or person of weak intellect, who, several times during his testitimony, asserts that his statement that the defendant was the guilty party was not true and that his father had told him to tell the story which he had told. If such a witness be regarded as sufficiently sound mentally to entitle his testimony to be credited, and as sufficiently intelligent to understand the nature of the crime, he is an accomplice whose uncorroborated testimony is inadequate, under section 399 of the Code of Criminal Procedure, to sustain a conviction. FIRST DEPARTMENT, FEBRUARY TERM, 1902. [Vol. 69. The fact that there is no specific statutory provision that a conviction of the crime of sodomy cannot be had upon the uncorroborated testimony of an accomplice, does not obviate the necessity in such a case of producing testimony corroborating the accomplice as, in the absence of a specific provision upon the subject, the court should follow the general provisions which have been enacted and legal precedents. APPEAL by the defendant, Francesco Deschessere, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 11th day of April, 1901, convicting him of the crime of sodomy, and also from an order entered in said clerk's office on the 19th day of April, 1901, denying the defendant's motion for a new trial made upon the minutes. Joseph H. Radigan, for the appellant. Howard S. Gans, for the respondent. O'BRIEN, J.: The nature of the crime charged forbids our dwelling upon the facts, and it is only necessary to refer to them so far as to point out, and that but briefly, the reasons for which we think the judgment should be reversed. The People claim to have proved that the defendant committed the act of which he is accused with one Louis Asterita, a youth seventeen years of age, who, it appears, was an imbecile or person of weak intellect, or, as his father characterized him, "crazy." This youth was the principal witness, and, although he said, when first interrogated, that his father had told him what to say in the Police Court (which substantially was what he testified to on the trial), when further questioned by the counsel for the defendant, said that he had made mistakes about it and that the story he told was not true. The unreliability of his testimony was thereafter emphasized, for the learned trial judge took him in hand and, after calling his attention to the contradictions which he had made, gave him an opportunity to explain them; but he again repeated that the statement that the defendant was the guilty party was not true, and then reasserted that his father told him to tell the story which he had told. It shocks one's sense of justice that a person should be convicted and should serve a long term in prison upon testimony so unreli App. Div.] FIRST DEPARTMENT, FEBRUARY TERM, 1902. able, inconsistent and contradictory. The weight to be given such testimony was commented upon in People v. Ledwon (153 N. Y. 10), wherein the principal witness was a weak, ignorant boy, who spoke in a foreign tongue, and who, upon the trial, had stated that on a former occasion he had given false testimony, and it was said: "Guilt in such a case cannot be established beyond a reasonable doubt by the testimony of such a witness, who is evidently, either from moral or mental defects, irresponsible," and the judgment of conviction for that reason was reversed. Although in the case at bar the youth spoke the English language, having been born in this country, it was made evident that, if not an imbecile or, as his father said, "crazy," he was morally and mentally irresponsible, and that upon his testimony, uncorroborated as it was upon the question of the identity of the person who committed the crime, a conviction should not be allowed to stand. If, however, we regard him as sufficiently sound mentally to entitle his testimony to be credited at all, and as sufficiently intelligent to understand the nature of the crime, then he was an accomplice whose uncorroborated testimony was not enough to justify a conviction. (Code Crim. Proc. § 399.) The respondent contends that "the Code contains no specific provision that a conviction under section 303 (Penal Code) cannot be obtained upon the unsupported evidence of the person upon whose body the act of sodomy has been consummated, and in view of the fact that such specific provision is made with regard to the crimes of abduction, compulsory marriage, rape and defilement (Section 283, Penal Code) it may well be doubted whether in any case under section 303 corroboration is necessary." In the absence, however, of such specific provision, the court should follow the general provisions which have been enacted and legal precedents. As pointed out by the defendant, section 399 of the Code of Criminal Procedure provides that "A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime." And it has been expressly held in Regina v. Jellyman (8 C. & P. 604; 34 E. C. L. 916) that, "although consent or non-consent is not material to the offense, yet as the wife, if she consented, would be an accomplice, she would require confir |