text:
    In the Matter of the Will of Marcus Bruckheimer, Deceased. Ruth B. Oppenheimer, Appellant; Milton Bruckheimer et al., Respondents.
    Arpnp.fi January 8, 1945;
    decided February 21, 1945.

      Walter M. Weis and Seymour J. Wilner for appellant.
    I. That it was the testamentary intent to create a trust measured by at least three lives is obvious both from the particularly expressed provisions and from a consideration of the will in its entirety. Testator’s intent must prevail over all other canons of construction. (Matter of Clark, 280 N. Y. 155; Matter of Roth, 291 N. Y. 1; Matter of Durant, 231 N. Y. 41; Matter of Winburn, 265 N. Y. 366; Herzog v. Title Gurantee & Trust Co., 177 N. Y. 86; Central Trust Co. v. Egleston, 185 N. Y. 23: Matter of Watson, 262 N. Y. 284.) II. In any event there must be a -reversal of that part of the decree which directs preservation of the residence for the widow’s life without limitation to the duration of the trust. Decedent’s residence is part of the residuary estate and- therefore is in the corpus of the trust. The decree provides: “ that as long as the respondent Lillie Bruckheimer occupies the decedent’s residence at Torrence Place, Scarsdale, Westchester County, New York, or during her lifetime the expenses incurred in preserving the said home, such as mortgage interest, taxes, repairs, insurance and other fixed charges, shall be paid out of the principal of thé trust.” III. Even if it be held that testator created a valid trust it was error to direct that maintenance charges of the residence should be paid out of principal. (Matter of Albertson et al., 113 N. Y. 434; Spencer v. Spencer, 219 N. Y. 459; Matter of Satterwhite, 262 N. Y. 339; Matter of Ely, 249 App. Div. 8, 274 N. Y. 501.)

      Bradford Butler and Morris Metz for Morris Metz, as executor and trustee of Marcus Bruckheimer, deceased, respondent.
    I. Testator erected a trust expressly measured by the lives of two of his grandchildren with a provision for prior termination in certain specified contingencies. (Bailey v. Bailey et al., 97 N. Y. 460; Crooke et al., v. County of Kings, 97 N. Y. 421; Gilman v. Reddington et al., 24 N. Y. 9; Matter of Murphy, 213 App. Div. 319; Stewart v. Stewart, 205 App. Div. 587; Woodgate et al., v. Fleet et al., 64 N. Y. 566; Schermerhorn et al., v. Cotting, 131 N. Y. 48.) II. The directions of subdivision “ A ” of paragraph " Fifth ’ ’ of the will are not reasonably capable of interpretation as adding a third measuring life to the duration of the trust. III. The second sentences of subdivisions “ B 9 ” and “ C 8 ” of paragraph “ Fifth ” of the will cannot be interpreted as varying the express directions respecting the period of duration of the trust. (Hatch v. Bassett, 52 N. Y. 359;
      Jennings v. Conboy, 73 N. Y. 230; Locke et al., v. F. L. & T. Co. et al., 140 N. Y. 135; Matter of Forde, 286 N. Y. 125; Matter of Ingersoll, 95 App. Div. 211; Woodside Presbyterian Church v. Burden, 240 App. Div. 43; Matter of Franze, 251 App. Div. 837; Matter of Corlies, 150 Misc. 596, 242 App. Div. 703; Gilliam v. Guaranty Trust Co., 186 N. Y. 127; Matter of Gallien, 247 N. Y. 195; Matter of Rooker, 248 N. Y. 361; Matter of Breedon, 259 App. Div. 422; Matter of Tod, 260 App. Div. 627; Matter of Winburn, 265 N. Y. 366.) IV. The determination of the Surrogate and the majority of the Appellate Division concerning the duties of the fiduciaries respecting the family residence was correct. (Matter of Burton, 143 Misc. 440; Matter of Albertson et al., 113 N. Y. 434; Matter of Ely, 249 App. Div. 8, 274 N. Y. 501; Adams v. Massey, 184 N. Y. 62; Fleischman v. Furgueson, 223 N. Y. 235.)

      Lillie Bruckheimer, respondent in person.
   Per Curiam.

In unequivocal language the testator bequeathed his residuary estate to trustees “ in trust * * * during the lives ” of his two grandchildren. The testator’s directions to the trustees to apply the income of the estate to the support of the testator’s wife “ during her lifetime ” and to preserve his home for the use of his wife “ as long as she lives ” and the testator’s failure to make any express provisions for the contingency that his wife might survive her two grandchildren may indicate that the testator did not regard that contingency as substantial, but do not indicate that the testator intended to extend the duration of the trust beyond the limits unequivocally fixed by the testator. By necessary implication the testator’s directions to the trustees are limited to the period of the trust created by the testator and the provisions of the decree construing such directions must also be so read. We have examined the other contentions of the appellant and agree with the disposition made by the courts below.

The order should be affirmed, with costs payable out of the estate to the appellant and the respondent trustees.

Lehman, Ch. J., Loughran, Lewis, Conway, Desmond, Thacher and Dye, JJ., concur.

Order affirmed, etc.


source: Caselaw Access Project

author: Loughran, J.

license: Public Domain

text:
    Gem Music Corp., et al., Suing on Behalf of Themselves and All Other Members of the American Society of Composers, Authors and Publishers, Similarly Situated, v. Deems Taylor, as President of the American Society of Composers, Authors and Publishers, an Unincorporated Association of More Than Seven Persons, et al., Defendants, and A B C Music Corporation et al., Appellants.
    Argued January 2, 1945;
    decided March 1, 1945.

      Louis D. Frohlich, Herbert P. Jacoby, Samuel Jesse Buzzell, Francis Gilbert, Austin C. Keough, Jr., and R. W. Perkins for Broadway Music Corporation and others, appellants.
    I. Section 11 of article III, of the articles of association of ascap does not impose vicarious liability upon the corporate defendants for the acts of the individual defendants. (Chase v. Vanderbilt et al., 62 N. Y. 307; Kalmanash v. Smith, 291 N. Y. 142.) II. The complaint fails to set forth facts sufficient to constitute a cause of action against the individual defendants for which the corporate defendants might be held vicariously liable. (Burke v. Rector, etc., 64 Misc. 380; Lafond et al. v. Deems et al., 81 N. Y. 507; Havens v. Dodge, 221 App. Div. 475, 250 N. Y. 617; Cavanagh v. Hutcheson, 140 Misc. 178, 236 App. Div. 794; Gerdes v. Reynolds, 281 N. Y. 180; Weinberger v. Quinn, 264 App. Div. 405, 290 N. Y. 635; Rous v. Carlisle, 261 App. Div. 432; Oshrin v. Celanese Corporation of America, 291 N. Y. 170; Davis v. Cohn, 260 App. Div. 624; Simon v. Socony-Vacuum Oil Co., Inc., 179 Misc. 202, 267 App. Div. 890; Kalmanash v. Smith, 291 N. Y. 142.)

      Leopold Bleich and Julian T. Abeles for Leo Feist, Inc., and others, appellants.
    I. The articles of' association having conferred upon the directors the powers of executive representatives of the society, their alleged acts in such capacity could not have been perpetrated as agents of the corporate defendants. (Fells v. Katz, 256 N. Y. 67.) II. The relationship of the directors to the society dispels any agency relationship between the directors as such and the corporate defendants. (Hoyt v. Thompson’s Executor, 19 N. Y. 207; Beveridge v. N. Y. E. R. Co., 112 N. Y. 1; People ex rel. Manice v. Powell, 201 N. Y. 194; Manson v. Curtis, 223 N. Y. 313; People v. Mancuso, 255 N. Y. 463; Pollitz v. Wabash R. R. Co., 207 N. Y. 113; McQuade v. Stoneham, 263 N. Y. 323.) III. The corporate defendants cannot be held accountable for any acts of directors perpetrated as the executive representatives of the society, merely because such individuals are the representatives of such members in their relationship with the society. (Bienenstok v. Ammidown, 155 N. Y. 47; Davis v. Patrick, 122 U. S. 138.)

      M. Theodore Chester and Andrew D. Weinberger for respondents.
    1. Facts sufficient to constitute a cause of action against the corporate defendants are alleged. (Booth v. Farmers’ and Mechanics’ N. Bank, 50 N. Y. 396; Friedman v. New York Telephone Co., 256 N. Y. 392; Ford v. Grand Union Co., 268 N. Y. 243.) II. Facts sufficient to constitute a cause of action against the individual defendants are alleged. (Guttmann v. Conda Co., Inc., 249 App. Div. 621; Brennan v. Barnes, 133 Misc. 340; Jones v. Van Heusen Charles Co., 230 App. Div. 694; Rodier v. Huddell, 232 App. Div. 531; Irwin v. Possehl, 143 Misc. 855; People ex rel. Deverell v. Musical Mutual Protective Union, 118 N. Y. 101; Matter of Brown, 34 Misc. 556.) III. The relationship between plaintiffs and defendants in and of itself establishes a right in plaintiffs to an accounting. (Haight v. Haight & Freese Co., 112 App. Div. 475, 190 N. Y. 540; Glass v. Springfield L. I. Cemetery Society, 252 App. Div. 319; Fur & Wool Trading Co., Ltd. v. Fox, Inc., 245 N. Y. 215; Schantz v. Oakman, 163 N. Y. 148; Marston v. Gould, 69 N. Y. 220; New Yorkers Producing Corporation v. Moss, 237 App. Div. 567; Talmudic Literature Publishers, Inc., v. Lewin, 226 App. Div. 1; Rhodes v. Little Falls Dairy Co., Inc., 230 App. Div. 571.)
   Loughran, J.

The plaintiffs sue on behalf of the American Society of Composers, Authors and Publishers, an unincorporated association. In the record and in the briefs this society is called “ ascap ” and we shall refer to it by that name. There are two aggregations of defendants — a group of individuals who at the times in question were directors of ascap and a group of corporations that were then included in the membership thereof.

By motion under rule 106, the defendants demanded dismissal of the complaint for insufficiency on its face. At Special Term the motion was granted as to the corporate defendants and in the case of the individual defendants was denied. Cross-appeals were taken to the Appellate Division where the complaint was upheld in its entirety and the corporate defendants were given leave to present to us, as they now do, the question whether the pleading states facts sufficient to constitute a cause of action against them.

In the first place, the complaint says: ascap is authorized by its .members to license public performances of their musical works for profit and to make prescribed distribution of the net proceeds among the membership. The corporate defendants have been publisher-members of ascap for ten years. Ascap is governed by articles of association which require its treasurer to render at each annual meeting an account of its financial condition and of all his transactions as treasurer. Though the treasurers of ascap from time to time have submitted such accounts to its board of directors, neither the board nor any of the individual defendants has ever made an accounting to the members of ascap for the reason that “ the treasurers of ascap and the other individual defendants have planned, schemed and conspired to withhold from the members of ascap knowledge of the aforesaid accounts and reports of the assets, investments, income and disbursements of ascap, all in violation of the aforesaid Articles of Association and of their duties respectively as directors, officers and trustees ”. These allegations, as the courts below have held, constitute a separate cause of action.

This first cause, it will be observed, does not assert that any of the corporate defendants participated in the alleged conspiracy or ratified that wrong or profited therefrom. Indeed this first cause does not even impute knowledge of the existence of such a conspiracy to any of the corporate defendants.

The only other cause of action charges the individual defendant-directors of asoap with waste of moneys collected by it for the plaintiffs; but this cause does not name any of the corporate defendants as a participator in the alleged misuse of such moneys. Nor is any corporate defendant charged with having subsequently assented thereto in any way.

The articles of association by which asoap was governed are annexed to and made part of the complaint. These articles were the law of asoap binding upon all its members. (Ostrom v. Greene, 161 N. Y. 353, 362.) Article III makes this provision: “ Section 11. Each publisher member, if a copartnership, firm, association or corporation shall file with the secretary of the Society, from time to time, the name of a person who shall be deemed to be its representative in the Society for all purposes, and wherever in these Articles of Association there shall be reference to publisher members relating to election as directors, holding other office or serving in any other capacities, the same shall have reference to such representatives.” Pursuant to that section — so the complaint goes on to say — each of the corporate defendants appointed one of the individual defendants as its representative on the board of directors of asoap and such appointments were in force on the occasions in issue. Whether these last allegations made the complaint valid as against the corporate defendants is the one and only question for decision.

The Appellate Division said: “ By Section 11 of Article III each publisher member is required to appoint an individual ‘ who shall be deemed to be its representative in the Society for all purposes ’. These provisions together with the other allegations of the complaint would seem to render the publisher corporation liable for the acts of its designated representative and to distinguish the present case from decisions relied on by the corporate defendants which hold that a stockholder ordinarily is not liable for the acts of directors who have been elected by him.” (267 App. Div. 895, 896.)

We cannot accept that viewpoint. None of the corporate defendants had power to appoint a representative on the board of directors of asoap. On the contrary, under asoap's articles of association a director could be nominated only by a committee of the board and could be elected only by the general membership of asoap. Moreover, no director of ascap| derived any authority from any of the corporate defendants. On the contrary again, the power of complete management of asoap’s affairs was vested in its directors by its articles of association. These articles are to be read in the light of the rule which limits the significance of general words in an instrument to the specific objects elsewhere set forth therein. (See Sims v. U. S. Trust Co. of New York, 103 N. Y. 472, 478; 1 Mechem on Agency [2d ed.], § 780.) So construed, the above phrase “ for all purposes ” has relation only to the «proper pursuits of asoap as declared in its articles. In no possible view does that phrase appear to have been an authorization to any of the individual defendants to misappropriate moneys of asoap that were committed to their care as its directors.

The orders of the Appellate Division should be reversed and the orders of Special Term affirmed, with one bill of costs to the appellants in this court and in the Appellate Division. The question certified should he answered in the negative.

Lehman, Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ., concur.

Ordered accordingly. •


author: Thacher, J.

text:
    Oscar Grossman, Respondent, v. Consolidated Edison Company of New York, Inc., Defendant, and Brooklyn Edison Company, Inc., Appellant.
    Argued January 3, 1945;
    decided March 1, 1945.

      Arthur A. Kaye and John D. Monroe for appellant.
    I. The decision of the Appellate Division fails to give judicial sanction to the legislative language of subdivision 1 of section 29 of the Workmen’s Compensation Law which enacted a statute of limitations for third party actions, and the decision is contrary to the plain words and necessary operations of the statute. (People v. Wilmerding, 136 N. Y. 363; O’Brien v. Lodi. 246 N. Y. 46; Matter of Kaplan v. Kaplan Knitting Mills, 248 N. Y. 10; Adams v. Gillig, 199 N. Y. 314; Allen against Patterson, 7 N. Y. 476; City of Buffalo against Holloway, 7 N. Y. 493; Nasaba v. Harfred Realty Corp., 287 N. Y. 290; Tudor v. Ebner, 104 App. Div. 562, 182 N. Y. 562; Hardmann v. Bowen, 39 N. Y. 196; Raleigh and Gaston Railroad Co. v. Reid, 80 U. S. 269; In re Heath, 144 U. S. 92; Botany Mills v. United States, 278 U. S. 282; Sharrow v. Inland Lines, Ltd., 214 N. Y. 101; Gilbert v. Ackerman, 159 N. Y. 118; Callaghan v. Bailey, 293 N. Y. 396; Barrencotto v. Cocker Saw Co., 266 N. Y. 139.) II. Subdivision 1 of section 29 is operative as a statute of limitations, independently of subdivision 2; moreover, to be effective as a factor in an assignment of the cause of action under subdivision 2, the limitation of subdivision 1 must operate as an effective bar to the commencement of an action by the employee. (Darry against The People, 10 N. Y. 120; O’Brien v. Lodi, 246 N. Y. 46; Milks v. MeIver, 264 N. Y. 267; Matter of Decker v. Pouvail

      smith Corp., 252 N. Y. 1; Exchange M. I. Ins. Co. v. C. H. Gas & El. Co., 243 N. Y. 75; Wechsler v. Bowman, 285 N. Y. 284; Hulbert et al. v. Clark et al., 128 N. Y. 295; House v. Carr, 185 N. Y. 453.)

      Max J. Wolff and S. Paul Fishman for respondent.
    The amendment of section 29, of the Workmen’s Compensation Law by chapter 684 of the Laws of 1937 did not set up a new and special statute of limitations reducing from three years (Civ. Prac. Act, § 49, subd. 6) to one year the time for the commencement of an action against a negligent third party by an injured employee to whom no award of compensation has been made. (Hession v. Sari Corporation, 283 N. Y. 262; Matter of Parchefsky v. Kroll Bros., Inc., 267 N. Y. 410.; Lester v. Otis Elevator Co., 90 Misc. 649, 169 App. Div. 613; Sifkowitz v. International Ry. Co., 223 App. Div. 815, 249 N. Y. 565; Rein-hart v. Gerosa Crane Service Co., Inc., 263 App. Div. 28; Godfrey v. Brooklyn Edison Co., 115 Misc. 21, 196 App. Div. 980; O’Brien v. Lodi, 246 N. Y. 46; Matter of Curtin v. City of New York, 287 N. Y. 338; Sharkey v. Thurston, 268 N. Y. 123; People v. Ryan, 274 N. Y. 149; Schmidt v. Merchants Despatch Trans. Co., 270 N. Y. 287; Wolfson v. Syracuse Newspapers, Inc., 254 App. Div. 211, 279 N. Y. 716; Gillette v. Allen, 264 App. Div. 599.)
   Thacher, J.

In this case we are concerned with the sufficiency of a defense interposed by the Brooklyn Edison Company in an action for personal injuries alleged to have been caused by the negligence of the company’s employees in permitting a metal pipe to fall and strike the plaintiff, who was employed by another contractor in work on a building owned by the company. The defense alleged that plaintiff was entitled to compensation for his injuries under the Workmen’s Compensation Law, had filed a claim for and intended to take such compensation which was secured to him by his employer; that the action was not commenced against the Brooklyn Edison Company until February 16, 1944, more than one year after the accident occurred; that the action accrued on December 31, 1942, and was barred because not commenced within the time limited therefor by section 29 of the Workmen’s Compensation Law. The Special Term denied a motion to strike out this defense as insufficient in law. The Appellate Division held that the motion should have been granted, granted leave to appeal to this court and certified to us the question: “ Was the order of Special Term properly made? ”

Prior to its amendment in 1937 section 29 of the Workmen’s Compensation Law required election by the employee or his dependents whether to take statutory compensation secured by his employer or to pursue the common-law remedy against a tort feasor not in the same employ. If the election was to take compensation, the award operated as an assignment of the cause of action against the third party either to the State (for the benefit of the State Insurance Fund) or to the carrier or person liable for the payment of such compensation, as a subrogee liable to'pay to the injured employee two thirds of that part of any recovery in excess of the total amount "of compensation awarded, plus expenses of medical care and the reasonable and necessary expenditures in effecting such recovery. If the election was to pursue the remedy against a third party tort feasor, the State Insurance Fund or other person liable to pay the compensation was required to contribute only the deficiency, if any, between the amount recovered from the third party and the compensation provided by the Workmen’s Compensation Law. (L. 1935, ch. 328.)

This statutory provision for the election of remedies and the assignment by operation of the statute of the common-law cause of action was quite radically changed by the .amendment of 1937 (L. 1937, ch. 684). The employee and his dependents were no longer required to elect whether to take such statutory compensation or to pursue the common-law remedy and it was provided that they might take such compensation and at any time, either prior thereto or within six months after the awarding of compensation, pursue the employee’s remedy against such third party. Thus the injured employee could pursue both remedies at the same time. The benefits of subrogation extended to persons liable for the payment of compensation were preserved by other provisions which dealt with the action against a third party and with the assignment of such a cause of action by operation of the statute.

The question we must determine is whether or not these provisions found in subdivisions 1 and 2 of section 29 impose a short Statute of Limitations upon the employee’s right to bring his common-law action against a third party tort feasor. The pertinent provisions are:

“ § 29. Remedies of employees; subrogation.
“1. * * * If such injured employee, or in case of death,
his dependents, take or intend to take compensation * * *
under this chapter and desire to bring action against such other [meaning a tort feasor not in the same employ], such action must be commenced not later than six months after the awarding of compensation and in any event before the expiration of one year from the date such action accrues. * * *” (Matter in brackets inserted for clarification.)
“ 2. If such injured employee, or in case of death, his dependents, has taken compensation under this chapter but has failed to commence action against such other within the time limited therefor by subdivision one, such failure shall operate as an assignment of the cause of action against such other to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person, association, corporation, or insurance carrier liable for the payment of such compensation. * * * ”

If the injured employee elects to bring the action and commences it within the. time limited in subdivision 1, then he may prosecute it to judgment, although he has “ taken compensation ”, and the State Insurance Fund or the carrier or person liable for the payment of compensation has a lien therefor on the proceeds of the recovery. If, however, the action is not commenced by the injured employee within the time limited by subdivision 1, the failure to commence it operates as an assignment of the cause of action under subdivision 2 if he has taken compensation, and in that case the assignee must pay two thirds of any recovery in excess of the total amount of compensation awarded, expenses for medical treatment, and the reasonable and necessary expenditures incurred in effecting the recovery, to the injured employee or his dependents.

Subdivisions 1 and 2 disclose the statutory plan for enforcing the remedies available to the injured employee and the equitable distribution of any recovery from the negligent third party. No intent is disclosed to impose a short Statute of Limitations upon the right to bring an action at common law, but the words of subdivision X — -“ such action must be commenced not later than six months after the awarding of compensation and in any event before the expiration of one year from the date such action accrues ’ ’ — are said to have that meaning and effect.

Reading subdivisions 1 and 2 together and in the light of their clearly disclosed purpose, we reject the contention that subdivision 1 is a statutory bar against the commencement of this action and hold that the provisions of subdivision 1 were designed to implement the provisions of subdivision 2, which fix the conditions under which taking compensation shall operate as an assignment of the cause of action. If the employee hás taken compensation, the condition made prerequisite to the assignment is failure ‘ ‘ to commence action against such other within the time limited therefor by subdivision one ”. The statute imposes no other consequence upon such “ failure ” and we may not add to the consequences expressly imposed, a bar against bringing the action. In the instant case it is not alleged that the plaintiff has “ taken compensation ” as provided in subdivision 2 and consequently subdivision 2 is not applicable and subdivision 1 is therefore inoperative. It follows that the plaintiff is still entitled to prosecute the action. , If and when plaintiff does take compensation then there will be an assignment of the cause of action and the assignee will be entitled to conduct the litigation thereafter.

If, as the defendant contends, the plaintiff were barred by subdivision 1 from commencing suit because of failure to begin it within one year from the date of the accident, we would be confronted with the anomalous situation in which, for a period of time after the expiration of the year and before the plaintiff has taken compensation, no one would be in a position to bring suit, although the statute itself contemplates an assignment of the right to sue upon the acceptance of compensation by the injured employee. No reason is suggested why the Legislature should have created such an extraordinary Statute of Limitations, nor can any purpose to do so be inferred from the language of the statute or from the subject matter with which it dealt. Only by lifting the words of subdivision 1 out of their context and functional association with subdivision 2 and imputing to them a purpose foreign to the legislative plan may it be argued that this remedial statute is a bar to this action. We are constrained to adopt the more reasonable construction, which is in accord with the legislative purpose and the statutory plan. Accordingly we answer the question certified in. the negative.

The order should be affirmed, with costs, and the question certified answered in the negative.

Lehman, Ch. J., Loughran, Lewis, Conway, Desmond and Dye, JJ., concur.

Order affirmed, etc.


author: Desmond, J.

text:
    The People of the State of New York, Respondent, v. Philip Realmato, Appellant.
    Argued January 9, 1945;
    decided March 1, 1945.

      Archibald Palmer and Samuel Masia for appellant.
    I. Section 435-10.1 of the Administrative Code of the City of New York is not applicable to the solicitation of business from a person upon the premises but is limited to solicitation of a passerby upon the street. (People v. Patrick, 14 N. Y. S. 2d 249; People v. Cuneen, 94 Misc. 509; Madison Products Co., Inc., v. Coler, 242 N. Y. 467.) II. If section 435-10.1 of the Administrative Code should be interpreted to refer likewise to persons on the premises of a storekeper, then the section in that respect violates the constitutional rights of defendant’s employer. (People v. Patrick, 14 N. Y. S. 2d 249; Coty, Inc., of New York v. Hearn Dept. Stores, Inc., 158 Misc. 516; Nebbia v. New York, 291 U. S. 502; Good Humor Corporation v. City of New York, 33 N. Y. S. 2d 906; People v. Rosenheimer, 209 N. Y. 115.)

      Thomas Cradock Hughes, Acting District Attorney (Fred J. Loughran of counsel), for respondent.
    The statute applies to all passersby whether they be on the sidewalk in front of the premises or in the vestibule leading to the store entrance. (People ex rel. Wood v. Lacombe, 99 N. Y. 43; Hurst v. City of New York, 55 App. Div. 68; Psota v. Long Island R. R. Co., 246 N. Y. 388.)
   Desmond, J.

Appellant has been convicted of a violation of section 435-10.1 of the Administrative Code of the City of New York. In the heading of that section the proscribed offense is quite expressively described as the: “ Solicitation of pedestrians by pullers-in.” Patently, the statute was designed to restrain the zeal of New York City’s more militant merchants, who, not content to wait behind their counters for customers, projected their blandishments beyond the confines of their emporia and into the paths of passers-by. The prohibitory part of section 435-10.1 reads as follows: “ Solicitation of pedestrians by pullers-in. a. It shall be unlawful for any person to stand, or cause or permit any person to stand on the sidewalk or street in front of, or in the entrance or hallway of any store or building for the purpose of calling the attention of passersby to goods, wares or merchandise displayed or on sale in such store or any other store or building, or to solicit patronage for any business or service, or to attempt by word of mouth or gesture, or by the distribution of handbills or other printed matter, or by the use of mechanical or sound making devices, to entice or persuade passersby to enter such store or building, or any other store or building, or to accept the services of any business. ’ ’

The retail fur shop of appellant’s employer, on Fulton Street in Brooklyn, has a wide, deep, entrance vestibule flanked on either side by display windows. The door to the shop is at the inner end of that corridor or way, the outer end being open to the street. The show-windows along the passage are at about right angles to the street front of the building and are a continuation of the show-windows in the facade. To see the whole array of furs and do a complete job of “ window-shopping ”, one has to walk into the window-sided passageway which is part of the shopkeeper’s premises. On a November morning in 1943 two women, standing in the entrance arcade and inspecting some of the fur coats on display, were approached by appellant, a salesman, who asked one of them whether she was interested in a fur coat. Upon being told that she was not, he asked permission to show her a few coats, motioned her into the store, followed her in, and was promptly presented with a summons by the putative shopper, who was a policewoman not in uniform. The question for us, answered yes ” by the Magistrate and by the Court of Special Sessions on appeal from the Magistrate’s Court, is as to whether the salesman, on those facts, was properly held to have violated the Administrative Code section quoted above.

We answer that question in the negative. We do not think the City Council intended to make criminal such activities as those of defendant. Complainant, when accosted by this defendant, was on the premises of the latter’s employer, not on a public thoroughfare. She had turned from the sidewalk, crossed the building line and entered into what was plainly marked out as part of a shop. The shopkeeper’s name and business were painted in large letters on the inner pavement on which she stood as she admired his wares. The Court of Special Sessions was of the opinion that the vestibule was not part of the store proper but that, open as it was day and night, its use had been “ to some extent dedicated to the public.” So is the open lobby of a theatre or hotel, but we do not think an owner, by thus constructing his building, makes it so much a part of the public highway that he can be prohibited from peacefully carrying on his own lawful business therein. Carrying the idea of “ dedication to the public use ” to its logical end, we would have to conclude that a shopkeeper who chose to have no door or outside wall at all but left the whole shop open to the street, could not solicit business therein. We think a great deal more than this special type of modern store front design is necessary to turn a business place into an arm or branch of the public street.

The lawmakers, in our view, intended to accord the protection of the statute to those persons only who were on the public street or sidewalk and not to those who had already entered into a quasi-customer relationship by turning from the street into some part of the business premises. In the only reported cases construing this particular ordinance (People v. Phillips, 147 Misc. 11; People (Crennan) v. Patrick, 171 Misc. 705; Matter of Dinino, N. Y. L. J., Dec. 14, 1939, p. 2138, col. 2) the courts seem to have traveled on the assumption that only persons in the streets were protected from the importunities of the “ pullers-in.” In People v. Patrick (supra), the magistrate spoke of the law as prohibiting interference with peaceful use of the city streets ” and pointed out that “ it was never intended that the city streets should be used for carrying on business or for the purpose of inducing business ” (see, also, McKay Jewelers, Inc., v. Bowron, 19 Cal. 2d 595, where a similar ordinance was assumed to mean, by the use of the word passersby ”, people on the sidewalk or street). Our attention is called to a number of cases enforcing city ordinances, in other States, which outlawed the activities of “ touts ” or “ runners ” but in none of those cases, so far as we can find, was there any effort to apply the law against a merchant crying his own wares in his own establishment. (See The City of Chillicothe v. Brown, 38 Mo. App. 609; Wright v. City of Anniston, 26 Ala. App. 109; City of Emporia v. Shaw, 6 Kan. App. 808; Henderson v. Bluefield, 98 W. Va. 640.) The City’s brief in this case does not seriously dispute all this but argues that the place of this occurrence was, because of dedication or use, subject to regulation just like a street. We cannot agree. It would be going much too far to say that this defendant’s acts had anything whatever to do with anyone’s use of the public streets.

Going to the precise wording of this statute, we hold that complainant here was not a “ passerby ” or pedestrian ” as she stood in the vestibule, looking over the garments on display, and that defendant, in persuading her to enter the store, was not a puller-in.” “ Passersby ” and pedestrians ” are not words of precise definition but they have to he stretched pretty far before they can refer to those who have deviated from the line of street travel and turned into a place owned and occupied for private business purposes. .The use of the word " pullers-in ” in the statute’s heading, which heading we may use as an aid to construction (People v. Molyneux, 40 N. Y. 113, 119), is more illuminating. “ Puller-in ” has a dictionary meaning of “ a man who stands in front of a cheap shop, place of entertainment, or the like, and urges passers-by to enter, sometimes laying hold of them ” (Webster’s New International Dictionary [2d ed.], unabridged, 1942). From the whole language, including the heading, of the statute here under scrutiny, we conclude that it was not intended to interdict peaceful, orderly solicitation by a merchant of persons who have entered such a vestibule on the merchant’s private property.

We are the more inclined to such a construction because, if read so as to make criminal the acts proven in this case, the law would be of very doubtful constitutionality„ We do not of course go so far as did the California Supreme Court in McKay v. Bowron (supra), when it held that such an ordinance, even as applied to merchants who from their hallways peacefully solicited window-gazers standing in the street, was unconstitutional as infringing the constitutional guaranty of freedom of speech. Grounds there may be, under the City’s power to regulate the use of its. streets (see State Const., art. IX, § 12; City Home Rule Law, § 11, subd. 1, cl. [b] ; People ex rel. Hofeller v. Buck, 230 N. Y. 608) or under general police powers, for the prohibition by an enactment such as this, of the molestation of travelers on the city streets. We are not advised, however, of any basis for validating such a statutory prohibition of essentially orderly and.reasonable conduct by a merchant on his own land.

The judgments should be reversed and the complaint dismissed.

Lehman, Ch. J., Loughran, Lewis, Conway, Thacher and Dye, JJ., concur.

Judgments reversed, etc.


text:
    In the Matter of Egan R. Russell, Appellant, against Ellsworth B. Buck et al., Constituting the Board of Education of the City of New York, Respondents.
    Argued January 8, 1945;
    decided March 1, 1945.

      Frederick Evan Crane, William F. Cassin and Edward J. Barry for appellant.
    I. The Appellate Division erred in limiting and restricting the provisions of section 889 by judicial construction. (Matter of Putnam v. Marshall, 286 N. Y. 485; Rowland v Mayor, etc., City of New York, 83 N. Y. 372; Matter of New York State Labor Relations Board v. Hudson, 267 App. Div. 763, 293 N. Y. 671; Lyon v. M. R. Co., 142 N. Y. 298; Matter of Cole, 235 N. Y. 48; Orinoco Realty Co. v. Bandler, 233 N. Y. 24; Matter of Moss v. Norman, 64 N. Y. State Dept. Rep. 84; Matter of Mahoney v. Board of Education, 179 App. Div. 782.) II. The acts of respondents are illegal. (Matter of Putnam v. Marshall, 286 N. Y. 485; Nelson v. Board of Higher Education, 263 App. Div. 144, 288 N. Y. 649; Matter of Adams v. Board of Higher Education, 263 App. Div. 804, 288 N. Y. 652; Dexter v. Board of Higher Education, 293 N. Y. 39; Matter of Cox v. Board of Education of the City of New York, 178 Misc. 95, 263 App. Div. 740; Matter of Cross v. Board of Higher Education of the City of New York, 260 App. Div. 907.)

      Ignatius M. Wilkinson, Corporation Counsel (Joseph G. De Vito, Joseph F. Mulqueen, Jr., and Edna Glassman of counsel) for respondents.
    I. The 1925 schedule of compensation for duly authorized extra custodial services was not a salary schedule, and it is not, therefore, within the purview of section 889 of the Education Law. (Greater New York Charter, § 56; L. 1901, ch. 466, as amd.; Hogan v. Board of Education, 200 N. Y. 370; Matter of Dobrovolny v. Prendergast, 219 N. Y. 280; Matter of Putnam v. Marshall, 286 N. Y. 485.) II. The work performed by custodians during summer months is part of their regular employment for which they are compensated under their annual salaries. (Juddson v. Board of Education of the City of New York, 255 App. Div. 1024; Matter of Langhans, 65 N. Y. State Dept. Rep. —, July 15, 1944; Matter of Shapiro v. Bd. of Education, 250 App. Div. 57, 274 N. Y. 643.)
   Desmond, J.

Petitioner is the custodian-engineer of a New York City public school. He and many others work under the so-called “ indirect system ” — that is, he is required, out of the compensation he receives from the Board of Education, to pay the wages of necessary helpers hired by him. For many years such custodians were paid under two different coexisting schedules. One of those schedules fixed annual rates of pay for “ regular services ”; the other provided for additional compensation, at hourly rates, for certain “ duly authorized extra services ” described therein. In 1942 the Board of Education, by resolution, did away with the added remuneration for such extra services as were performed during daytime hours in the summer vacation period. Petitioner brings this proceeding to assert his claim that such a discontinuance of extra pay, for services performed when the schools are in use during the summer recess, is illegal under section 889 of the Education Law, the so-called “ Salary Freezing Law ” of 1931 (L. 1931, ch. 540). Special Term granted the relief prayed for, ordering the Board to rescind its 1942 resolution. The Appellate Division, however, reversed, holding that when the Legislature in 1931, by amending section 889, put a floor under public school salaries, in New York City, it did not thus protect “ compensation for casual services which it was within the power of the Board of Education, at any time, to deem included within the regular work.” (267 App. Div. 784.)

We can only speculate as to how the custom first arose of paying these “ indirect service ” custodians an annual stipend for regular work and additional hourly increments for such work as they were called upon to do after school hours and on Sundays and during the long vacation. We know, however, that the custodians were so paid under separate schedules for “ regular ” and “ extra ” work, for many years before the State began to exercise a measure of control over the remuneration of employees of the common schools. The journals of the Board show the adoption of “ extra service” schedules in 1908, 1909, 1910, 1924 and 1925. Other schedules setting forth the annual rates for “ regular services ” were similarly set up at intervals. In 1920 when a State statute (“ Lockwood-Donahue Law ”, L. 1920, ch. 680) required that all New York City school department “ compensation or salaries ” be increased, the Board of Education augmented the amounts payable annually to the custodians for “ regular day activities of the schools ”. In 1925 the other existing schedule, having to do with the “ extra services ”, was amended to increase the hourly rates of pay for such services. That 1925 schedule, filed with the State Department of Education conformably to a statute requiring such filing, remains on file there to this day. From 1925 to 1942, when the resolution attacked in this proceeding was adopted, the custodians have been paid for their “ extra ” services, in precise accordance with that 1925 schedule. In 1927 the Board of Education promulgated and filed at Albany a new schedule which among other things, provided for increases in the annual payments to the custodians. That schedule said nothing at all about “ regular ” or “ extra ” work but it affected only the annual compensation and was, unquestionably, adopted because of the additional State aid to education ordered by the “ Dick-Rice Law ” (L. 1927, ch. 572). The Board of Education’s 1927 resolution authorizing higher annual rates of pay for custodians said that “ any inconsistent by-laws and resolutions ” of the Board were to be suspended. The Board’s attorney now seems to argue that among the “ inconsistent resolutions ” thus done away with was the 1925 resolution setting up a separate schedule for extra services. We see no inconsistency between raising annual salaries and continuing hourly rates for extra work — apparently the Board of Education felt the same way about it in 1927 because it went right on paying the men according to the two schedules, both of which were left en file with the State Education Department. Either the hourly rates were part of the fixed compensation base or the payments thereof were gratuities — and boards of education are not empowered to distribute largess.

In 1931 came the amendment to section 889 of the Education Law. The amendment contained a direction, which is still the law, that the schedules and schedule conditions fixing the salaries ” of all New York City Board of Education employees should be not less than “ the salaries and salary increments fixed by the schedules and schedule conditions adopted by such board of education * * * and on file in the office of the state commissioner of education on the fifth day of March, nineteen hundred thirty-one.” Petitioner says that enactment put a floor under his pay at the two sets of rates shown by the two schedules then on file. The Board of Education, on the other hand, asserts that section 889 protected only “ salaries ”, that the hourly allowance for extra work is not a “ salary ”, that the annual rate only is safeguarded as a salary ” and that the Board could at any time, before or after 1931, wipe out the hourly “ extra ” pay. We do not believe that the Legislature intended any such distinction. The State, granting large sums to New York City in aid of its school system, insisted on minimum standards, including minimum pay. That minimum it fixed at the levels existing in New York City on March 5, 1931. By long-established custom these custodians were, as of that date, being paid according to two complementary formulae, on both of which, taken together, their total emoluments were computed. Perhaps the Board of Education, before 1931, could have wiped out the “ extra service ” pay and ordered that the “ per annum ” schedule cover everything. But it did not do so. The “ freezing ” process of section 889 thus made irreducible the hourly as well as the annual rates.

The order of the Appellate Division should be reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Lewis, Conway and Dye, JJ., concur; Thacher, J., taking no part.

Ordered accordingly.


text:
    Edgar Hirschberg, Respondent, v. City of New York, Appellant.
    Argued January 10, 1945;
    decided March 1, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (Martin V. Callagy and Francis A. Fullam, Jr. of counsel), for appellant.
    I. Respondent, whose employment as a general law assistant was discontinued by mutual consent at his own request during the period from June 1, 1942, to February 15, 1943, cannot properly be held entitled to compensation for that period as a matter of law. (Coletti v. Knox Hat Co., Inc., 252 N. Y. 468; Child v. Boyd Corey Mfg. Co., 56 N. E. 608.) II. Plaintiff was not the holder of a “ public office ” as a general law assistant. There attached to his position no independent sphere of jurisdiction, power or duty, no independent official status. These are the essential notes of the public officer as distinct from the public employee. (People ex rel. Dawson v. Knox, 231 App. Div. 490, 267 N. Y. 565.)

      Jacob J. Pantell for respondent.
    The allegations of the complaint constitute a good cause of action. A public employee has the right to sue to recover a salary definitely fixed by statute. (O’Connor v. City of New York, 178 App. Div. 550, 224 N. Y. 644; Moore v. Board of Education of City of New York, 121 App. Div. 862, 195 N. Y. 614; Nelson v. Board of Higher Education, 31 N. Y. S. 2d 825; Sutliffe v. City of New York, 132 App. Div. 831; People ex rel. Flynn v. Woods, 218 N. Y. 124; O’Neil v. State of New York, 223 N. Y. 40; Sullivan v. Whitney, 25 N. Y. S. 2d 762; Emmitt v. Mayor, etc., of New York, 128 N. Y. 177.)
   Loughran, J.

In June, 1941, the plaintiff was appointed a general law assistant to the Justices of the Supreme Court in the County of New York at an annual salary of $7,500. While he was serving in that position an indictment for larceny was returned against him in May, 1942. Thereupon he wrote to one of the Justices a letter in this text: “ As you are aware a terrible catastrophy has occurred to me. Under the circumstances I respectfully request that I be relieved of all duties to the Justices and the Court until the determination of this affair.” The reply of the secretary of the Board of Justices advised the plaintiff that his request had been granted.

Conformably to that interchange, the plaintiff did no work for the New York Supreme Court or any justice thereof between May 7, 1942, and February 11, 1943. On the last given date, the indictment against him was dismissed and he was then allowed to reoccupy his place as general law assistant. Four days later — on February 15, 1943 — he resigned therefrom.

This litigation followed. The City of New York is the defendant. Whether the plaintiff is entitled to salary for the period of his absence from his position is the question to be determined. On cross motions for summary judgment, Special Term granted him a recovery of $5,649.75 which by our leave is now before us for review on an appeal by the City from a unanimous affirmance thereof."

Though the post of general law assistant to a court of justice can scarcely call for an exercise of any part of the sovereign power of the State, we shall assume that the plaintiff’s appointment as such an assistant made him a public officer. (Cf. People ex rel. Murphy v. Prendergast, 165 App. Div. 186.) On that basis, the salary in question was an incident to the title of the office and was not dependent upon actual discharge by the plaintiff of the duties thereof. (Nichols v. MacLean, 101 N. Y. 526.) But that proposition, we think, does not justify the judgment against the City, in the circumstances as we have stated them.

As matter of conceded fact, the withdrawal by the plaintiff from his official functions was at his own request and for reasons that were entirely his own. It is not possible to read into that arrangement a stipulation that the payments theretofore made to the plaintiff from public moneys would be kept up for the duration of such outright relinquishment by him of his office. Whatever right he had during that intermission was manifestly not a right to salary. (See Wardlaw v. Mayor, etc., New York, 137 N. Y. 194, 199; Bell v. Treasurer of Cambridge, 310 Mass. 484; 43 Am. Jur., Public Officers, § 381. Cf. N. Y. Const., art. VIII, § 1.)

The judgments should be reversed and the motion of the defendant for dismissal of the complaint granted, with costs in all courts.

Lehman, Ch. J., Lewis, Conway, Desmond and Dye, JJ., concur; Thacher, J., taking no part.

Judgment accordingly.


author: Per Curiam.

text:
    In the Matter of the Will of Bertha L. Hodges, Deceased. Marcella J. Cecala, Appellant; Anna K. Deabold, et al., Respondents.
    Argued January 4, 1945;
    decided March 1, 1945.

      James O. Moore, Sr., and Nathan Rovner for appellant.
    I. Appellant is the child, lineal descendent, heir at law, next of kin and legal representative of her foster father and therefore entitled to the estate of his deceased mother. II. That the adopted child had all the rights of inheritance of a natural child was the interpretation of section 114 of the Domestic Relations Law and its predecessors. (Gilliam v. Guaranty Trust Co., 186 N. Y. 127; Matter of Cook, 187 N. Y. 253; Carpenter v. Buffalo General Electric Co., 213 N. Y. 101; United States Trust Co. of N. Y. v. Hoyt, 115 Misc. 663, 173 App. Div. 930, 223 N. Y. 616; United States Trust Co. v. Hoyt, 150 App. Div. 621; Matter of Bates, 173 Misc. 703; Matter of Gilmartin, 156 Misc. 699, 250 App. Div. 762, 277 N. Y. 689; Dodin v. Dodin, 16 App. Div. 42; Bourne v. Dorney, 184 App. Div. 476; Matter of Walter, 270 N. Y. 201.) III. The changes incorporated in section 115 of the Domestic Relations Law as taken over from former section 114 in a measure clarified the language and assured the right of a foster child to inherit through his deceased foster parents. (Carpenter v. Buffalo General Electric Co., 213 N. Y. 101; Betz v. Horr, 276 N. Y. 83; Matter of MacRae, 189 N. Y. 142; Flagler v. Hearst, 62 App. Div. 18; People v. Dethloff, 283 N. Y. 309.) IY. Whether the gift under the will of Elizabeth Gr. Hodges, widow of Marshall J. Hodges, deprived Marshall’s adopted daughter, the appellant, of the benefits of section 29 of the Decedent Estate Law is doubtful because Elizabeth survived Marshall." (Matter of Walter, 270 N. Y. 201.)

      Walter N. Renwick for Anna K. Deabold and others, respondents.
    I. Section 115 of the Domestic Relations Law nowhere states nor implies that the adopted child will inherit the intestate property of the adopter’s parent. (Hopkins v. Hopkins, 202 App. Div. 606, 236 N. Y. 545; Matter of Hall, 234 App. Div. 151, 259 N. Y. 637; Matter of Cuddeback, 174 Misc. 322; Matter of Brenner, 149 Misc. 412; Matter of Marsh, 143 Misc. 609.) II. Section 115 of the Domestic Relations Law nowhere states that an adopted child shall inherit from the adopter’s parents. III. The words “ heirs and assigns ” in a will are words of limitation and not purchase. (Matter of Reynolds, 109 Misc. 453, 192 App. Div. 937.)

      Creighton S. Andrews, special guardian for Mary J. Dorr and others, infants, respondents.
    I. The right of appellant to take as sole distributee depends upon the statute only. (United States Trust Co. v. Hoyt, 150 App. Div. 621; Carroll v. Collins, 6 App. Div. 106; Matter of Thorne, 155 N. Y. 140.) II. Adoption is created by agreement and the foster parent may not thereby “ adopt heirs ” for third persons. (Matter of Hall, 234 App. Div. 151, 259 N. Y. 637; Kettell v. Baxter, 50 Misc. 428; Matter of Brenner, 149 Misc. 412.) III. If the trend of judicial decisions is toward extending the right of an adopted child to inherit this is not sufficient, as such extended right must be found in the statute. (Matter of Hecker, 178 Misc. 449.)
   Per Curiam.

In Hopkins v. Hopkins (202 App. Div. 606, 236 N. Y. 545) and Matter of Hall (234 App. Div. 151, 259 N. Y. 637) it was held that no statute of this State entitled an adopted child to inherit from the next of kin of its foster parents. There has been no statutory change in the law as there declared. Any extension thereof must be made by the Legislature.

The order should be affirmed, without costs.

Lehman, Ch. J., Loughran, Lewis, Conway, Desmond, Thacher and Dye, JJ., concur.

Order affirmed.


text:
    The People of the State of New York ex rel. Donald A. J. Ray, Appellant, against Walter B. Martin, as Warden of Attica State Prison, Respondent.
    Argued January 11, 1945;
    decided March 1, 1945.

      Thomas J. McKenna, James B. McKenna and Benjamin Galperin for appellant.
    I. Relator if detained under a void commitment in violation of his constitutional rights under the Fourteenth Amendment, section 1, of the United States Constitution, is entitled to the remedy of habeas corpus. (Civ. Prac. Act, § 1230; People ex rel. Sain v. Martin, 289 N. Y. 471] Hoff v. State of New York, 279 N. Y. 490; People ex rel. Carr v. Martin, 286 N. Y. 27; Hans Nielsen, Petitioner, 131 U. S. 176; Bowen v. Johnston, 306 U. S. 19.) II. Treaties. Federal and State legislation and judicial interpretations of such treaties and legislation establish that the Supreme Court of the State of New York did not have jurisdiction of this offense. III. The present city of Salamanca is part of the Allegany Beservation, which, with several others, was set aside by the United States pursuant to treaties for the Seneca Nation. Treaty of 1794 (7 U. S. Stat. 44); Treaty of 1838 (7 U. S. Stat. 550); Treaty of 1842 (7 U. S. Stat. 586); New York Indians, 5 Wall. 761; Cohen Handbook of Indian Law, 416, 424; United States v. Forness, 37 F. Supp. 337, 125 F. 2d 928; City of Salamanca et al. v. United States, 316 U. S. 694.) LV". Legis lation affecting the Beservation disclosed the inability of New York State to legislate therefor. (Ryan v. Knorr, 19 Hun 540 ; United States v. Kagama, 118 U. S. 375; Whitney v. Robertson, 124 U. S. 190; Ex Parte Crow Dog, 109 U. S. 556; United States v. Soldana, 246 U. S. 530; United States v. Chavez, 290 U. S. 357.) V. Judicial interpretations are in accord with appellant’s position. (Worcester v. The State of Georgia, 6 Pet. [U. S.] 515; The New York Indians, 5 Wall. [U. S.] 771; United States v. Forness, 125 F. 2d 928, certiorari denied sub nom. City of Salamanca et al. v. United States, 316 U. S. 694; Hamilton Shoe Co. v. Wolf Brothers, 240 U. S. 251; Pickett v. U. S., 216 U. S. 456; Donnelly v. United States, 228 U. S. 243.) VI. The opinion of the Appellate Division erroneously limited relator’s reliance for relief solely to an interpretation of the words “ Indian Country ” as used in section 217 of title 25 of the U. S. Code, and then failed to follow prior decisions of the United States Supreme Court construing the term “ Indian Country.” (United States v. Chavez, 290 U. S. 357; Donnelly v. United States, 228 U. S. 243; Puerto Rico v. Shell Co., 302 U. S. 253; United States v. Press Publishing Co., 219 U. S. 1; Franklin v. United States, 216 U. S. 559.)

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley, Orrin G. Judd and Worthy B. Paul of counsel), for respondent.
    I. There is doubt whether the ultimate question involved can be reached in this habeas corpus proceeding. (People ex rel. Carr v. Martin, 286 N. Y. 27; Davis v. Johnston, 144 F. 2d 862.) II. The Indian Law, section 71, insofar as it provides that “ all the general laws of the State ” extend over and apply to Salamanca, is not inconsistent with the Constitution of the United States, particularly article I, section 8, clause 3, or with any treaty entered into or acts enacted thereunder. (Seneca Nation v. Christie, 126 N. Y. 122, 162 U. S. 283; United States v. Franklin County, 50 F. Supp. 152; United States v. National Gypsum Co., 141 F. 2d 859; Fellows v. Blacksmith et al., 19 How. [U. S.] 366; State of New York v. Dibble, 21 How. [U. S.] 366; United States ex rel. Tyler, 269 U. S. 13; Worcester v. The State of Georgia, 6 Pet. [U. S.] 515; United States v. Bailey, 1 McLean 234; Wood v. City of Salamanca, 289 N. Y. 279.) III. There is no inconsistency between the asserted State jurisdiction and the seventh article of the 1794 Treaty of Canandaigua. IV. Section 71 of the- Indian Law is constitutional even without authorization by Congress. (United States v. Holliday, 70 U. S. 407; Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617; Surplus Trading Co. v. Cook, 281 U. S. 647; United States v. McGowan, 302 U. S. 535.) V. However, Indian Law, section 71, is authorized by Congress in the 1875 Act. VI. Salamanca is not “ Indian Country ” and hence U. S. Code, title 25, section 217, does not render U. S. Code, title 18, sections 451 and 452, applicable. (Surplus Trading Co. v. Cook, 281 U. S. 647; James v. Dravo Contracting Co., 302 U. S. 134; Ex Parte Crow Dog, 109 U. S. 556; United States v. Kagama, 118 U. S. 375; Donnelly v. United States, 228 U. S. 243; People ex rel. Cusick v. Daly, 212 N. Y. 183; Benson v. United States, 44 F. 178; Bates v. Clark, 95 U. S. 204; United States v. Le Bris, 121 U. S. 278; Clairmont v. United States, 225 U. S. 551.)

      Beverly S. Galloway, Assistant District Attorney, Cattaraugus County.

    I. The sovereignty of the State of New York attaches to the lands of the Seneca Indians comprised within the boundaries of the State of New York. (Johnson v. M’Intosh, 8 Wheat. [U. S.] 543; Harcourt v. Gaillard, 12 Wheat. [U. S.] 523; Clark et al. v. Smith, 13 Pet. [U. S.] 195; Fletcher v. Peck, 6 Cranch [U. S.] 87; Worchester v. The State of Georgia, 6 Pet. [U. S.] 515.) II. New York having exercised her sovereign power within the Seneca Beservation, with the acquiescence of the Indians and the Federal government, jurisdiction of the United States over lands of the Seneca Indians is not exclusive.
      (People ex rel. Cusick v. Daley, 212 N. Y. 183; Benson v. United States, 44 F. 178; Ex Parte Crow Dog, 109 U. S. 556; State of New York v. Dibble, 21 How. [U. S.] 366; Seneca Nation v. Christie, 126 N. Y. 122; Hatch v. Luckman, 155 App. Div. 765; Jimeson v. Pierce, 78 App. Div. 9; United States v. Waldow, 294 F. 111; United States v. McBratney, 104 U. S. 621.) III. The writ of habeas corpus cannot be made use of as a writ of error. (United States v. Waldow, 294 F. 111; Robb v. Connolly, 111 U. S. 624; Ex Parte Royall, 117 U. S. 241; Eaton v. State of West Virginia, 91 F. 760.)
   Desmond, J.

Relator is serving, in a New York State prison, a life sentence imposed on him by the Supreme Court of the State of New York on December 15, 1939, for the commission, at the city of Salamanca, in Cattaraugus County, New York, of. a “ felony murder ” (Penal Law, § 1044, subd. 2; § 1045a). Almost the whole of the city of Salamanca, including the scene of the killing, is within the hounds of the Allegany Reservation of the Seneca Nation of Indians. Relator is not an Indian, nor was his victim, one Paul Balsiger. In this habeas corpus proceeding-relator asserts that the Supreme Court of this State was without any jurisdiction of his offense, committed as it was on an Indian reservation. No such challenge to the jurisdiction was made during relator’s trial or on his appeal to the Appellate Division from the judgment of conviction, which appeal resulted in an affirmance by that court (259 App. Div. 1065) , or on a subsequent motion, denied by a Judge of this court, for leave to appeal to this court. We hold, nonetheless, that the alleged jurisdictional question may properly be raised by these habeas corpus proceedings. (See People ex rel. Carr v. Martin, 286 N. Y. 27, 31, 32.) The County Judge and the Appellate Division, fourth department, both wrote opinions (181 Misc. 925 and 268 App. Div. 218) in dismissing the writ. We granted leave so that we might, if possible, set at rest any doubts a's to whether the penal laws of this State apply to crimes committed in the city of Salamanca. The respective counsel have furnished us with extensive reviews of the writings on the very large subject of the jurisdiction of tribal, Federal and State courts over Indian reservations in the United States. We content ourselves with a statement of the bases for our conclusion that relator was properly indicted, tried and punished in the Supreme Court, despite the undoubted fact that the crime was committed on lands which form part of an Indian reservation. In general, our reasons for that conclusion are these: that there is no basis in any treaty, constitution or statute for an assertion by the Federal Government of exclusive jurisdiction over crimes committed by non-Indians against non-Indians on this reservation, that such jurisdiction has historically, by common consent and for sound legal reasons been assumed to exist, by the Federal and State courts in New York and elsewhere, that this is peculiarly so as to the reservations of the Six Nations ” in New York State, and, finally, that there is a Federal statute making applicable to the city of Salamanca the general laws of the State of New York.

The Allegany Beservation of the Seneca Indians is wholly within New York State, has an area of about forty-two square miles and extends along both sides of the Allegany Biver, north from the Pennsylvania border. It is a part of the much more extensive lands occupied by the Seneca nation before the American Bevolution. Before our Federal Constitution was adopted, those Seneca lands were within the bounds of the State of New York. The Allegany Beservation was, accordingly, not created by the Federal Government out of United States Government lands within the State, and was never at any time territory of the United States. (Seneca Nation v. Christie, 126 N. Y. 122, 136, affd. 162 U. S. 283.) During colonial days there had been a protracted quarrel between New York and Massachusetts over a large territory (several million acres) including much of present-day Western New York, each colony claiming that its royal charter gave it sovereignty and jurisdiction over the disputed tract. In 1786, after the Declaration of Independence but before the adoption of the Federal Constitution, a compact was entered into between the sovereign States of Massachusetts and New York by the terms of which compact New York was recognized as having sovereignty and jurisdiction over the lands and Massachusetts was recognized as the owner of the “ right of preemption ” of the lands themselves, including the right to extinguish such title as the Indians had. This compact, subsequently ratified by the Congress of the United States, authorized Massachusetts to grant and convey the right of pre-emption, as to any part of the lands involved, “ to any person or persons who by virtue of such grant shall have good right to extinguish by purchase the claims of the native Indians * * * Massachusetts in 1791 conveyed its title, subject to the Indian claims, to Bobert Morris, who later conveyed it to the Holland Land Company, Morris agreeing to extinguish the Indian rights at his own expense. He did so in 1797 when at a great council of the Senecas held at G-eneseo, New York, he received from the Seneca Nation a conveyance of all the lands purchased by hi™ from the State of Massachusetts, excepting certain Indian reservations, including the Allegany Beservation with which we are here concerned. The council was held and the conveyance made with the approval of the Government of the United States, as represented by its Commissioner. (See discussions of these transactions in Seneca Nation v. Christie, supra, and Jemison v. Bell Telephone Co., 186 N. Y. 493, 497.)

Previous to the Geneseo Council, and in 1794, there had been entered into at Kon-on-daigua (Canandaigua, N. Y.) a treaty between the United States of America and the Tribes of Indians called the Six Nations ” (including the Seneca Nation). By it peace and friendship ” were to be firmly established ” forever, between the United States and the Six Nations. (7 U. S. Stat. 44.) The treaty contains a description by metes and bounds of the lands of the Seneca Nation, with an acknowledgment by the United States that the described lands were the property of that Nation, and a promise by our Government that the possession thereof by the Senecas would never be disturbed. The Senecas, on their part, covenanted that they would never claim any other lands within the boundaries of the United States. By article V the Senecas ceded to the United States the right to build a wagon road through part of their lands (not the Allegany Beservation) and the right of free passage through all the Seneca lands. Article VII of that Treaty of 1794 is one of relator’s main reliances. By that article it was stipulated that, “ lest the firm peace and friendship now established should be interrupted by the misconduct of individuals, * * * for injuries done by individuals on either side, no private revenge or retaliation shall take place; but, instead thereof, complaint shall be made by the party injured, to the other ”. If the depredation was by Indians, the complaint was to be made by the President, or a superintendent by him appointed, to the principal chiefs of the Six Nations or any of them; if the “ private injury ” was by whites, then the complaint would go from the Indian Nation to the President, or his superintendent. Upon the entry of any such complaint, says article VII, ‘‘ such prudent measures shall then be pursued as shall be necessary to preserve our peace and friendship unbroken; until the legislature (or great council) of the United States shall make other equitable provision for the purpose ”. Eelator treats that last-quoted sentence as provision * * * for future federal legislation which would cover the crime in question when committed within the Allegany Beservation ”. He says that the language “ expressly excluded State laws from application to this Beservation ”. We cannot agree that it had any such meaning or effect, or that it referred at all to the question of what system of internal law should thereafter operate within the tribal lands. The Treaty was, in substance as well as form, a true treaty, made between the United States of America and the quasi-sovereign Six Nations. It was made not to set off lands to the Indians or to provide for their government, but as a treaty of peace to put an end to a state of war and guard against its recurrence. For this purpose, border raids or other incursions were to be treated as “ international incidents ”, and diplomatic representations thereupon were to be made by the aggrieved signatory to the other. The Treaty of 1794 was one of a long series of actual treaties made between the United States and Indian tribes until the practice was abolished in 1871. (See Seneca Nation v. Christie, supra; James Turner v. The American Baptist Missionary Union, 5 McLean 344, 349; U. S. v. 43 Gallons of Whiskey, etc., 93 U. S. 188.) It did not create any Indian reservation but confirmed the Senecas’ aboriginal right of possession. (See U. S. v. Santa Fe, Pacific R. Co., 314 U. S. 339.) Nothing in the language of the pact, the circumstances giving rise to it, or the history of proceedings under it, furnish reason for holding that it had anything to do with the future domestic government of the Beservation or that the reference to “ the legislature (or great council) of the United States ” in itself conferred on Congress any power of any sort to legislate as to such matters. If such a meaning had been intended, appropriate language was available. (See, for instance, treaty provision quoted in U. S. v. 43 Gallons of Whiskey, etc., supra, at p. 193.)

Of course, Congress had, from other sources, jurisdiction over the Indians and their lands and their affairs. By Federal Constitutional provision (art. 1, § 8) and perhaps ex necessitate (see Board of Comm’rs v. Seber, 318 U. S. 705, 715), the Indian tribes have always been to some degree dependents of the Government of the United States and their members have been wards of that Government, receiving its care and protection. (U. S. v. Kagama, 118 U. S. 375; United States v. Sandoval, 231 U. S. 28; U. S. v. Klamath Indians, 304 U. S. 119.) The power of Congress over the Indians and their tribal affairs and domains is paramount and of a most sweeping character. (Worcester v. The State of Georgia, 31 U. S. 515.) The courts of this State, as well as the Federal courts, have consistently recognized that this paramount power in Congress is applicable to the affairs of the Six Nations within New York State. (People ex rel. Cusick v. Daly, 212 N. Y. 183, 196; Mulkins v. Snow, 232 N. Y. 47, 51; Kennedy v. Becker, 241 U. S. 556, affg. 215 N. Y. 42.) But, while the tribal Indians, being wards of the National Government, are not generally amenable to State laws nevertheless the lands in any State occupied by Indians is still part of the State unless expressly excluded therefrom. (See Thomas v. Gay, 169 U. S. 264, 274, 275; Utah & Northern Railway v. Fisher, 116 U. S. 28.) The exclusive control of the Federal Government over Indians extends only so far as is required by the pupilage of the wards and has to do only with government and protection of the Indians themselves. (Utah & Northern Railway v. Fisher, supra.) Congress may exercise that jurisdiction by legislating concerning crimes committed by Indians or against Indians within a reservation. (Donnelly v. United States, 228 U. S. 243.) But that jurisdiction over the Indians has nothing at all to do with the transactions of white men among themselves not affecting the persons or property of Indians, on or off a reservation. Accordingly, it has been held in many State and Federal decisions, and apparently never until now questioned, that to oust the criminal courts of a State from jurisdiction over crimes committed by a non-Indian against a non-Indian, more must be shown than the single fact that the crime was committed on an Indian reservation. (See Donnelly v. United States, supra; United States v. McBratney, 104 U. S. 621; State v. Monroe, 83 Mont. 556; People v. Pratt, 26 Cal. App. 2d 618; State v. Lindsey, 133 Wash. 140; State v. Adams, 213 N. C. 243; United States v. Partello, 48 F. 670.) To allocate jurisdiction over such crimes to the Federal courts, there must be shown some treaty or act specifically so commanding. (United States v. Partello, supra; see Draper v. United States, 164 U. S. 240.) The reason is simply this: the original thirteen States and those later admitted into the Union on an equal basis with the original thirteen, have general criminal jurisdiction over all non-Indian persons within the State limits, including Indian reservations. (United States v. McBratney, supra.) Even as to Indians, the National Government’s exclusive jurisdiction of the crimes over which it has by statute assumed jurisdiction, applies only to Indians living “ in their tribal relations ” (The Case of Peters, an Indian, 2 Johns. Cas. 344; People ex rel. Cusick v. Daly, supra, 212 N. Y. 183, at p. 193). It is a jurisdiction stemming from the power to legislate in “ Indian affairs ” and not embracing all occurrences on Indian lands. The case of The NewYork Indians (5 Wall. [U. S.] 761), is not to the contrary; it forbade State taxation of tribal lands on this reservation because such taxation would be ‘ offensive to their tribal relations ” (p. 771). Cases like Pickett v. United States (216 U. S. 456), merely show that in the later-admitted States the Federal Government may, and sometimes did, in granting statehood, or in creating Indian reservations out of lands owned by the United States, expressly reserve exclusive jurisdiction on such Indian lands, as to all justiciable matters. No such situation has ever existed in New York State. In 1834, Supreme Court Justice McLean held at Circuit (The United States v. Bailey, 1 McLean 234) that a United States court could not try a white man for killing another white man on a Cherokee reservation. “ The state of New York,” he noted (p. 239) for many years, has punished its citizens for crimes committed in the Indian territory within its limits

Assuming that Congress could by statute take or keep for itself exclusive legislative control over the crime of murder, by whomever perpetrated, in the Allegany Reservation, where is there any such statute? Relator relies on United States Code, title 18, §§ 451 and 452, and United States Code, title 25, § 217. The first two of those sections (U. S. Code, tit. 18, §§ 451, 452), so far as important here, define, and provide for the punishment of murders “ committed within or on any lands * * * under the exclusive or concurrent jurisdiction [of the United States] ”. We find no ground whatever for a holding that the Allegany Beservation was ever “ under the exclusive or concurrent jurisdiction ” of our Federal Government. Ultimately, relator’s opposing argument stands or falls on his own construction of the Treaty of 1794, a construction which we have rejected in preceding paragraphs of this opinion and which has never in practice been accepted by any branch of either the New York State or the United States Governments. In the other statute (U. S. Code, tit. 25, § 217) urged upon us by relator as empowering the United States courts alone to deal with murders done on reservations, the language is that, with exceptions not here relevant, “ the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States * * * shall extend to the Indian country.” Belator says that the Allegany Beservation, including the city of Salamanca, is Indian country.” Without passing squarely on the point, we conclude that there is some basis for it. “ Indian country ”, archaic as the phrase now sounds, still seems to comprehend any unceded land, such as a reservation, occupied by an Indian tribe — any place to which the Indian title has not been extinguished. (Donnelly v. United States, supra; Bates v. Clark, 95 U. S. 204; Ex parte Crow Dog, 109 U. S. 556; Pronovost v. United States, 232 U. S. 487; United States v. Pelican, 232 U. S. 442; United States v. Chavez, 290 U. S. 357.) We may doubt whether the phrase “ Indian country ” ever did have any meaning in connection with the Six Nations and more doubt as to whether it could, in any event, be reasonably applied to Salamanca, in which live only a handful of Indians and which is, by State statute and Act of Congress (as we shall see hereafter), a white man’s city. Only by main force, we think, could the term be applied to a city all of the lands of which have, by corporate action of the Seneca Nation and with the express consent of Congress (see later discussion of the Act of 1875) been leased to white persons. “ A country without Indians, could hardly be considered an Indian country ” (United States v. Bichard & Co., 1 Ariz. 31, 39, 40). But, whether or not Salamanca is still “ Indian country ” in some sense or other, we state with confidence that the particular statutes cited by relator have never been considered as giving the Federal courts absolutely exclusive jurisdiction of crimes, whether committed by Indians or whites, on the New York State reservations. In Benson v. United States (44 Fed. 178), the Circuit Court, reversing a conviction, held that Benson, operating a tavern in Salamanca, was not guilty of introducing intoxicating liquors into the “ Indian country ” (see U. S. Code, tit. 25, § 241).

In Mulkins v. Snow (232 N. Y. 47, 50, 51), this court recognized, but did not define the limits of, the power of the State to legislate even in some respects “ for the tribal Indians living on reservations ” and referred to power of Congress as being one “ to legislate for them [the Indians] within their reservation.” The Supreme Court, in State of New York v. Dibble (62 U. S. 366, 370), referring to a New York State statute relating to intrusions of white men on Indian lands, and speaking specifically of the Tonawanda Reservation of the Senecas, said: Notwithstanding the peculiar relation which these Indian nations hold to the Government of the United States, the State of New York had the power of a sovereign over their persons and property, so far as it was necessary to preserve the peace of the Commonwealth, and protect these feeble and helpless bands from imposition and intrusion. The power of a state to make such regulations to preserve the peace of the community is absolute, and has never been surrendered.” It would take too long to list the various assumptions by New York State of various kinds of control over the Indians themselves, and the ratifications and recognitions thereof by the Federal Government and courts. (See United States ex rel. Kennedy v. Tyler, supra.) Justice Andrews, later of this court, wrote in a memorable opinion (George v. Pierce, 85 Misc. 105. 122): “ Our courts have assumed criminal jurisdiction over them [the Six Nations]. Our legislature has asserted their right so to do. And this jurisdiction has been mentioned by the Supreme Court of the United States without disapproval.” Justice Abdbews, recalling that the Indians of the Six Nations were in fact wards of this State at the time it became an independent sovereignty on the adoption of the Declaration of Independence and that among other sovereign rights of the State, as successor to the British Crown before the adoption of the Constitution, was its protectorate over the Indian tribes, pointed out that New York never transferred to the general government any rights over the Indians except as expressed in the Federal Constitution, and that, in a broad sense, the Indians of the Six Nations are, unlike the Western Indians wards of the state — not of the United States ” (85 Misc. at p. 120). From all of this, it is plain enough, we think, that the doubts and vagueness that becloud the general subject of law on Indian reservations, have nothing whatever to do with criminal prosecutions like that of this relator for the killing of Paul Balsiger, in Salamanca, New York, in 1939.

In an earlier paragraph of this opinion we stated, as one of the bases for our conclusion herein, that there is a Federal statute which makes applicable to the city of Salamanca, the general laws of the State of New York. That enactment (18 U. S. Stat. 330, ch. 90) was passed by Congress in 1875. It provides (§ 8) as to Salamanca (then a village) and several other named villages in the Allegany Reservation that “ all municipal laws and regulations of said State [New York] may extend over and be in force within said villages From the historical background of the statute, the setting of the quoted language therein, and from subsequent authoritative interpretation given it by the New York Legislature, it is plain to us that “ all municipal laws and regulations of said State ” means all the internal, domestic laws of the State. Our arrival at that conclusion has not been a hasty or incautious one, conscious as we are that the United States Circuit Court of Appeals has, in United States v. Forness (125 F. 2d 928, certiorari denied, sub nom. City of Salamanca v. United States, 316 U. S. 694) interpreted somewhat differently the phrase of the statute: “ municipal laws As always, we give due and great respect to the construction by a Federal court of a Federal statute, but we are not strictly bound in such matters by any but United States Supreme Court decisions. In this instance we feel constrained to make our own independent decision. We are called upon in this case to decide whether or not there exists any legal basis for the undisputed enforcement in Salamanca, for the past sixty-five years or more, of the general penal laws of this State. The Circuit Court of Appeals did not have any such broad question before it in the Forness case. The Forness case was brought on behalf of the Seneca Nation, in ejectment, to oust one of the white lessees for nonpayment of the rent due from him to the Nation. One of the issues before the Circuit Court was as to the applicability to such a lawsuit between the tribe and a white individual, of sections 997-999 of the New York Civil Practice Act, particularly section 999 which permits payment into court, at any time before judgment, of the rent due, with costs, and requires a dismissal of the action, on such payments being made. Whatever the words “ municipal law ” may mean in the case we have before us on this appeal, or in other connections, it is entirely clear that Congress, validating the Indian leases and reserving a measure of Federal control over the leased lands, could not have intended by the 1875 statute to make applicable to controversies over those leases the New York laws as to remedies of the lessor on a default by the lessee. As the County Judge wrote in the present case, interpreting section 5 of the 1875 statute: Potential conflicts between Indian lessors and the lessees involving forfeiture of leases and the like, are, since the Indians have a degree of sovereignty and are the wards of the Federal Government, extramural matters so far as the laws of the State of New York are concerned. Such matters are subject to the laws of the United States ”. (181 Misc. 925, 932.)

We agree with the Circuit Court of Appeals that municipal laws ” has two meanings. Broadly and classically it means the laws pertaining to the internal government of a State or nation. (See 1 Blackstone Comm. 44; People v. Tiphaine, 3 Parker Cr. Rep. 241, 244.) In its more modern and narrower connotation it means those laws which pertain to towns, cities and villages and their local governments. Intrinsically the words may have either of those meanings. But historical research, we believe, establishes that the broader and older intendment must have been the one used-by Congress. The statute was passed because of a pressing difficulty. Long before 1875, Salamanca and several other villages of white men had sprung up on the Allegany Beservation, and the white settlers and several railroad companies who built their lines through the Beservation lands, had made their improvements on the faith of land leases from the Indians. Although confirmed by act of the New York Legislature, those leases were declared invalid by the New York courts. (See Ryan v. Knorr, 19 Hun 540.) Thereupon the Legislature of this State passed and transmitted to Congress a resolution (L. 1875, p. 819) requesting the latter body to pass some law “ for the relief of said white settlers.” Soon thereafter, Congress on February 19, 1875, enacted the law we are here construing. After providing for appropriate validation of the leases, the statute in its last paragraph, says this: " That all laws of the State of New York now in force concerning the laying out, altering, discontinuing, and repairing highways and bridges shall be in force within said villages [including Salamanca], and may, with the consent of said Seneca Nation in council, extend to, and be in force beyond, said villages in said reservations, or in either of them; and all municipal laws and regulations of said State may extend over and be in force within said villages: Provided, nevertheless, That nothing in this section shall be construed to authorize the taxation of any Indian, or the property of any Indian not a citizen of the United States.” The best possible clue to the meaning of “ all municipal laws and regulations of the State ” as used in the Act is found in the action taken by our State Legislature, after Congress had acceded to its request by passing the statute above described. Apparently the new leases authorized by the Federal Act were entered into in 1880. In 1881, our Legislature, undoubtedly as a sequel to that passage of the Federal Act, put on our statute books chapter 188 of the Laws of that year, now section 71 of our State Indian Law, wherein, changing the word “ municipal ” to “ general ” it directed that “ all the general laws of this state are extended over and shall apply to the same [the villages of Salamanca et ah] ”. From that day until the Forness case {supra) was decidéd, no one has ever expressed a doubt, as far as'any record shows, that the word municipal ” as used by Congress and the word general ” as used by our Legislature, meant exactly the same thing, and that both words included and envisaged the whole State system of laws for the internal government of the residents of the villages, and not merely minor local ordinances, or State laws dealing with the details of village government. Such a use of the phrase municipal law ” was technically and scientifically correct for the result intended. The Act of 1875 was an act of cession in the sense that it ceded to the State such governmental jurisdiction as the National Government or the Seneca Nation might otherwise have or been thought to have, over the white villages. (Incidentally such cessions or relinquishments of Federal control over the government of Indian lands are not unusual and are considered legal even in contravention of treaties, see Lone Wolf v. Hitchcock, 187 U. S. 553, 566, 567; Tiger v. Western Investment Co., 221 U. S. 286, 315; Shoshone Tribe v. U. S., 299 U. S. 476, 497.) To describe the body of law which was to be operative in such ceded territory, the phrase “ municipal laws ” was appropriate and conventional. In Chicago & Pacific Railway Co. v. McGlinn [1885] (114 U. S. 542), the Supreme Court was called upon to decide whether a State statute remained in effect on the Fort Leavenworth Military Eeservation after the State of Kansas had ceded to the United States exclusive jurisdiction therein. A quotation from that opinion (p. 546) will show better than extended argument how apt and necessary was the phrase “ municipal laws ” to convey the idea that in the village of Salamanca, private property and private conduct were to be regulated by the laws of the State of New York: “It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new government or sovereign.” (For similar uses of the word “ municipal ” see Halleck, Int. Law [1st ed., 1861], ch. 33, § 14; Vilas v. Manila, 220 U. S. 345, 347; Murray v. Gerrick & Co., 291 U. S. 315, 319.) Thus we see that the clause “ all municipal laws and regulations of said State may extend over and be in force within said villages ” was a short but scientifically complete way of eliminating any doubt as to whether, after the Act’s passage, the laws affecting private rights of the residents of the villages would be those of the United States, or the Seneca Indians, or the State of New York. The Circuit Court of Appeals thought that giving “ municipal laws ” its more ancient meaning, i.e., of general State laws as opposed to international laws, would result in an absurdity since, said that court, the State of New York had no international relations or international law. But the villages and their villagers did have and continued to have a relationship, based on their leases, with the still quasi-independent Seneca Nation.

Relator argues that the specific reference in the above quoted 1875 Congressional statute to State laws concerning highways and bridges shows that the later-used term “ municipal laws ” had no application to State laws. On the contrary, we think that the statute itself shows why the highway and bridge laws were separately mentioned, i.e., because the Seneca nation in council was to have the right to extend those laws to the whole reservation.

The order should be affirmed.

Lehman, Ch. J., Loughran, Lewis, Conway, Thacher and Dye, JJ., concur.

Order affirmed.