author: Vann, J.

text:
    The People ex rel. Chauncey P. Meads, Pl’ff, v. Alpha Lodge, No. 1, of Knights of Sobriety, Fidelity and Integrity et al., Def'ts.

      (Supreme Court, Onondaga Special Term,

      Filed July, 1895.)

    1. Insurance—Mutual benefit—Expulsion.
    The power to expel a member of a mutual benefit insurance society is vested in tbe society and cannot be delegated to a committee unless clearly authorized by the constitution and by-laws.
    3. Same—Procedure.
    The procedure, prescribed by the constitution and by-laws of a mutual benefit society for the expulsion of members, must be strictly followed.
    3. Same—Notice of meeting.
    A member of such society cannot be expelled at a meeting, notice of which did not specify that it was the intention to expel and was not given to all the members of the society.
    4. Same—Grounds of expulsion.
    A member of such society cannot be expelled for slandering a fellow member.
    5. Same.
    A charge that the relator slandered the lodge itself is probably sufficient ground for expulsion.
    ■6. Same.
    The refusal of the relator to sign certain checks as treasurer, if a violation of duty, is cause for a motion for removal as an officer, not for disfranchisement as a member.

      7. Same—Trial committee.
    A brother of the person who prefers the charge cannot sit on the trial committee in a proceeding to expel a member of such society.
    8. Same—Exhaustion of remedies.
    The objection that the relator should have exhausted his remedies within the society, by bringing an appeal to the supreme lodge before applying for a writ of mandamus, is not available, where the by-laws give him no right to appeal.
    Application by Chauncey P. Meads against the Alpha Lodge, No. 1, of the Knights of Sobriety, Fidelity and Integrity, and others, for mandamus to compel defendants to restore relator to membership in said lodge, from which he alleged that he was illegally expelled.

      B. F. McLennan, for relator; A. B. Caldwell and T. M Hancock, for def’ts.
   Vann, J.

The defendant Alpha Lodge of the Knights of Sobriety, Fidelity and Integrity, is a corporation organized under the act relating to fraternal and beneficiary societies, and the other defendants are officers of the order. Laws 1889, chap. 520, p. 711. The object of the organization, as declared in its constitution, “is to combine the efforts of all its members with the view to efficient mutual relief, aid and systematic contributions of benevolence and charity during their lifetime, and to their respective families, from time to time, when rendered necessary by disability or death." It consists of a single supreme lodge, or governing body, composed of delegates from subordinate lodges, and a large number of local lodges, separately incorporated. The supreme lodge is the law making power for the entire association. Each lodge, at short intervals, collects from its assessable or beneficiary members, constituting what is known as the “ Participating Rank,” certain assessments, and, in case of disability or death, pays a specified sum, depending on the amount of the assessments, which are graded according to age, to the member or his family, or at the end of seven years a gross sum to the member himself, if living. As evidence of the contract between the society and its members, a certificate of membership is issued to each. On the 17th of July, 1889, the relator, Chauncey P. Meads, received a certificate of membership in the participating rank, and thereby became a beneficiary member of the local lodge, known as “ Alpha, No. 1.” He has ever since paid or tendered all assessments as they became due, amounting in the aggregate to a considerable sum of money. On the 25th of August, 1892, a meeting of the lodge was held, the relator not being present, although he had received a general notice to attend, but no norice that any business would be transacted in which he was especially interested. At that meeting charges in writing were preferred against him by an honorary member, alleging : That he had violated his duty as an officer, by refusing to sign certain checks until a sum of money that he claimed was due him should be paid, and that he was thereby guilty of “dishonest conduct, or conduct unbecoming a brother.” That later, and after he had been deposed from office, he refused to obey the behests ” of the supreme convention of the order, by boisterously declining to leave the council chamber, where he had no right to be, until he was ejected by force. That he had maliciously assailed the order and its officers through the public press, charging that he had been rejected as an officer after a mock trial by star chamber; that certain officers and members had made false, libelous and blackmailing statements, and false reports to the insurance department; that they had attempted to steal or illegally use the funds of the order, had mismanaged its affairs, and had been guilty of fraud and deceit. That, after the insurance department had exonerated such officers from intentional wrong, he further published in the newspapers, “ falsely, wilfully and malevolently,” that certain officers of the order had been guilty of gross mismanagement and perjury. That afterwards he had visited various lodges, vilified the chief officers, denounced the general management, and “ reiterted his former false statements.” At the same meeting a committee of five was appointed by the presiding officer to try the relator, and the next day a copy of the charges, with notice of trial, was personally served upon him. September 8, 1892, a new specification was added to the charges, alleging the disclosure by the relator of the secrets of the society, by publishing in the press the charges previously preferred against him as aforesaid. An active member, named George De Land, united in the amended specifications, as a complainant, and verified the same by his oath. This Mr. De Land, who thus actively engaged in the prosecution, was a brother of Gordie E. De Land, a member of the trial committee; and the two brothers De Land were sons of the officer who had appointed the committee originally, and who, without notice to the relator, and in his absence, reappointed the same members after said amendment was made, and it was known that the new complainant was a brother of one of the judges who were to pass upon the charges. It does not appear that any resolution was passed by the lodge authorizing the committee to pass upon the amended charges, and there is no by-law authorizing the trial of a member by committee. A copy of the amended charges, with notice of hearing, was served on the relator, who at the trial refused to plead, and protested against the right of the committee to try him, but did not at any time object to any member thereof. He offered no evidence, and took no part in the trial, except to protest against being tried by the committee, and denying its jurisdiction upon the ground that one of the complainants was not an active member. Evidence was given tending to sustain the charges, and the committee reported unanimously to the lodge, finding the relator guilty upon eight out of the nine specifications, including the one last made, and in which George De Land had joined. The lodge voted on the report of the committee, without taking evidence, or hearing read what had been taken, to expel the relator, who was not present at the time, but had been notified that a meeting would be held, the same as all the other members had been notified. The object of the meeting was not stated in the notice. He was not notified, and, so far as appears, did not know, that the question of his expulsion would be brought up or voted upon, or that the committee would make its report. The vote to expel was by the lodge, as such, without any separate vote by the officers, according to the by-laws, which provide that any officer or member of a subordinate lodge may be removed from his position, or expelled from his lodge for cause, by a majority vote of the officers of the lodge, on a vote of recommendation of a majority of the members of the lodge, and that such decision shall be final, and without appeal. The defendants claim that this bylaw had been so amended at the date of the alleged expulsion as to provide for action by a majority vote of the members present and entitled to vote, but I am unable to find that such amendment had been lawfully made, or that the constitution and by-laws had been complied with in the attempt to amend. Authority to make temporary amendments cannot be so construed as to embrace the right to expel. There were over forty members of the lodge entitled to vote, of whom eighteen (more than a quorum) were present, and all voted to expel, except three, who did not vote at all. Seven out of the ten officers were present, and voted, as members, in favor of expulsion, but they did not vote, or take any action separately, as officers.

The sole question presented for decision is whether the relator was lawfully expelled from the order, and, in discussing it, I shall assume that the evidence before the trial committee was sufficient to support the eight specifications sustained by their report. Whether the charges, if true, were all sufficient to justify expulsion, is open to question, and will be considered later.

The defendant lodge is not simply a social club, but is also an insurance company, with a surplus of $150,000 in its treasury for use as a reserve fund and the payment of losses. The relator, when expelled, had a vested property right in that money, of which he could not be deprived without due process of law. In case of severe sickness he was entitled to receive, for a certain period the 'sum of $25 per week. If he died,, his family was to be paid $500, and if he lived for seven years from the date of his admission, of which period nearly one-half had expired when he was expelled, he was to receive $1,000. He has therefore been deprived of a right of property, of considerable value, for his expulsion involved the' forfeiture of all pecuniary interests in the assets of the order. While courts are slow to look into such transactions of private corporations as affect no vested right that may be measured in money, they are prompt to interfere, upon proper application, when, by an arbitrary or unlawful exercise of power, a member has been deprived of that which costs him, and is worth, a definite sum of money. Life insurance, through the medium of benefit societies, is now practiced upon a vast scale; and many millions of dollars have been invested by persons of moderate means in social fraternities, in order to provide against the accidents of life and the certainty of death. It will not do to allow these valuable rights to be forfeited by the capricious or interested votes of those who will be benefited by the forfeiture, unless the method of procedure is in strict accordance with the law of the land, or the reasonable by-laws of the association itself. As was recently said by an able writer upon the subject:

“ Courts are lath to adopt the rule that societies doing a life insurance business can expel a member for some infraction of a by-law regulating personal conduct, and thereby cause him to forfeit his insurance, for which he has, perhaps, paid for a long period, and at a time, too, when possibly, from ill health or other reasons, he may not be able to replace the indemnity.” 1 Bac. Ben. Soc. § 107.

Where such serious results follow a deposition from membership, those who allege regularity of procedure in the effort to expel must be held to strict proof; for no presumption will be indulged to support a forfeiture, which the law abhors. 1 Bac. Ben Soc. § 110; People v. Med. Soc. of Erie Co., 32 N. Y. 187, 193; Pulford v. Fire Department, 31 Mich. 458. The relator was entitled to a fair trial, after due notice, before an impartial tribunal; and, as the method was not regulated by the laws of the association, it should be analogous to ordinary judicial proceedings, so far, at least, as to promote substantial justice. Wachtel v. Noah Widows’ & Orphans' Ben. Soc., 84 N. Y. 28; People v. Mechanics' Aid Soc., 22 Mich. 86. The only trial, or opportunity for trial, that he had was by committee, yet the by-laws authorize no such proceeding;- and, in the absence of a regulation to that effect, the weight of authority requires trial by the body of the order. Mr. Bacon says:

“ The power of expulsion of membez’s of a society, club, or corporation belongs to the body at large, and, in the absence of the clearest authority in the constitution and by-laws, cannot be delegated to a committee or officer.” Bac. Ben. Soc. § 100.

Many cases az-e cited. by the learned author in support of this position, from one of which the following extract is made:

“ The transfer from the body of the society, where it properly belongs, to a small fraction of its members, of so large and dangerous a power as that of expulsion, must appeaz’, if it be claimed to exist, by the plainest language. It cannot be established by inference or presumption, for no such presumption is to be made in dei'ogalion of the rights of the whole body. Nor is it to be supposed, unless it appears by the most express and -unambiguous language, that-the znembers of the society liave consented to hold their rights by so frail a tenure.as the judgment of a small portion of their own number. Hassler v. Association, 14 Phila. 233.

Mr. Niblack, in his work on Mutual Benefit Societies, says:

11 The power of expulsion belongs to the society at large, unless, by the fundamental articles, or some by-law founded on those articles, it is transferred to a select number.” Section 72.

See, also, Green v. Society, 1 Serg. & R. 254; State v. Chamber of Commerce of Milwaukee, 20 Wis. 63; State v. Miller, 66 Iowa, 26.

There are respectable authorities which hold that, where no mode of procedure is specified for trial, the society may adopt such mode as it pleases, subject only to the limitation that it must be fair, even including a trial by committee. Spilman v. Supreme Council, 157 Mass. 128; Pitcher v. Board (Ill. Sup.), 13 N. E. 187. I regard such practice as loose and dangerous, and refuse to adopt it, in the absence of a controlling authority-in this state. It may well be that a corporation may delegate to' a committe the power to take the evidence, and report it to the members, for them, duly assembled for the purpose, to act upon; but the trial itself, and the decision of the issue, should be by the whole, and not by a small part. Loubat v. Le Roy, 40 Hun, 546. The only trial of the relator was by a committee that not only took the evidence, but decided the facts, and, without reporting the evidence, recommended expulsion. The association simply fixed the penalty by voting to expel, without hearing the evidence. Yet, according to the by-laws, the power to expel had been confided to the officers, the members having power simply to recommend expulsion. The officers, as such, not only did not vote to expel, but they did net conduct the trial, nor hear the evidence. Furthermore, the vote was taken without due notice to the relator, or to the officers or members. General notice of the meeting was given to the officers and members, as usual, without specifying the nature of the business that was to be transacted. The relator had no other or different notice. Thus, even if the previous proceedings had been regular and legal, at the culminating point, when a judgment of forfeiture was to be pronounced, not only was the relator suffered to remain ignorant of what was going on, but the members themselves, who were to take a part in the decision, were not notified of the important business that was to come before them. Although the relator had seen fit to take no part in the trial before the committee, he may have desired to be heard, and he had a right to be heard, by the tribunal that was to pass final judgment upon him. If he had been heard the result might have been different. In Loubat v. LeRoy, 40 Hun, 546, by the constitution of a club the power to expel was vested in a governing committee, which appointed a subcommittee to investigate and report the facts relating to the alleged misconduct of a member. Notice was given to him, and be appeared and submitted a statement to the subcommitteee, which afterwards reported to the governing committee; and the latter, without further notice to him, passed a resolution of expulsion. It was held that the failure of the governing committee to give him notice of the meeting, and an opportunity to be heard, deprived the resolution of expulsion of all legal effect, as to him. If all the members had been notified that the lodge was to take action upon the relator’s case, instead of only eighteen, the whole membership might have attended, and a majority of the votes Have been cast in his favor. Members who might think that their 1 attendance was unnecessary for the usual routine of business might feel it their duty to attend a matter involving the rights of a fellow member. Nibl. Mut. Ben. Soc. § 71. Where a meeting was called for ‘'special business," or “to take into consideration the conduct of a member,” it was held insufficient to justify expulsion, although the member proceeded against was present. Marsh v. Huron College, 27 Grant (U. C.) 605; Cannon v. Corn Exchange, id. 23; Dean v. Bennett, L. R. 9 Eq. 625. The court holds that the notice should state distinctly what the object of the meeting is. Where the power of expulsion is in the society at large, notice that it is intended to expel must be given to all the members of the society ; and, where the power is in a select body, each member of such body must be so notified. Mibl. Mut. Ben. Soc. § 70. If the action of the society was a part of the trial, it was a trial without notice, and a conviction without evidence. Moreover, some of the charges of which the relator was found guilty by the trial committee were insufficient to justify the expulsion of a member having property rights in the assets of the association. It has been held that an accusation that a member was guilty of “slander against the society,” “villifying a member,” “ unprofessional conduct,” “ disrespectful and contemptuous language to associates,” “reporting that the lodge would not pay and never intended to pay,” “offense against law,” “ungentlemanly conduct,” etc., would not warrant his expulsion. People v. Mechanics' Aid Soc., 22 Mich. 86; Com. v. St. Patrick's Soc., 4 Am. Dec. 453; Mulroy v. Lodge, 28 Mo. App. 463; People v. Medical Soc. of Erie Co., 32 N. Y. 187; Fuller v. Trustees, 6 Conn. 532; Erd v. Association (Mich.), 34 N. W. 555; In re Butchers' Ben. Ass'n No. 1, 38 Pa. St. 298; State v. Georgia Medical Soc. 38 Ga, 608.

The relator may have said sharp and unjust things about his associates, and his conduct in other respects may have been annoying and offensive, so that, from a purely social club, his expulsion would have been justifiable for misconduct of that nature. But a member cannot be expelled for such reasons from a business association, organized, in part • at least, as a mutual insurance company, because it would be unreasonable to thus forfeit important rights of property. The forfeiture would be in the nature of confiscation, and would require express authority by statute. A by-law would not warrant it, for all by-laws must be reasonable. Áng. & A. Corp. § 347; 2 Am. & Eng. Enc. Law, 173. The failure to pay dues, fraudulent conduct towards the society, the conversion of its property, or any act or omission so directly affecting its welfare as to threaten its existence or success, would, of course, furnish just cause for expulsion. Perhaps other and less grave offenses might also be included, but not, according to the authorities, the libel or slander of members, who can seek redress in the civil tribunals, and do not need the extreme remedy of excluding the offender from all share in the assets arising partly from his own contributions. So, mere violations of good taste or propriety by a member cannot be made the basis of removal from a business organization. Even the betrayal of secrets of a secret society of that kind would scarcely be adequate cause for expulsion, where the only disclosure was through the publication of charges preferred against the member himself. That would hardly be a secret, within the meaning of a bj'-law imposing the duty of secrecy, for it would not be material or vital to society itself, as its passwords or ritual might be. Clearly, some transactions of such an order are, by implication, removed from the ban of secrecy. The right to defend implies the right to disclose the charges. The certificate of membership issued to the relator might have been made public by him, for it was a business contract. As the evidence of membership might be disclosed, why not the means adopted to deprive him of membership? Both were personal to him, and neither can properly be regarded as a secret of the order. If everything is secret, how can persons be informed as to the nature and object of the order, so as to be induced to join? Upon the trial the defendant officers voluntarily produced and freely exhibited the book of minutes of the lodge, said to be a complete record of all its transactions, without apparently regarding it as a betrayal of secrets.

The refusal of the relator to sign certain checks as treasure!, if a violation of duty, was cause for a motion as an officer, not for disfranchisement as a member.

The charge that the relator slandered the lodge itself was probably sufficient, as that might impair its efficiency, and prove a permanent injury. The willful circulation of false and injurious reports about the organization differs in principle from an attack upon its members, as it involves disloyalty, and a serious violalation of corporate duty.

Upon charges, the most of which are condemned by the courts as inadequate, the relator was expelled; yet, as at least one charge was adequate, probably no relief can be based upon this ground. The fact, however, is not without significance, as characterizing .the proceedings, and suggesting hasty action, caused by the excitement of the hour. All of the authorities agree and the learned counsel for the defendants concede, that the trial must be fair, or the expulsion cannot stand. This implies that it shall not only be fair in form, but also before an impartial tribunal. The trial in this case took place, so far as any consideration was given to the evidence, before a committee of which a brother of one of the prosecutors was a member. That committee may in fact have been entirely fair, and have acted only from the most disinterested, motives, but what is the legal presumption? Ho judge of our courts can sit if he is related to any party to the controversy within the sixth degree, even with the consent of all the parties. Code Civ. Proc. § 46; Oalkey v. Aspinwall, 3 N. Y. 547. Mr. Gordie E. De Land, in acting as a member of the trial committee, acted as a judge—not in the official sense meant by the Code, but in the sense that lie was to hear fairly, and determine justly, a charge against a fellow member, involving both property rights and private character. It may be that he has that judicial temperament that would enable him todo this, although his own brother was a complainant, but the presumption arising from common experience is to the contrary. He could not have sat as a juror in a court of law, under like circumstances, to try the most trivial action, yet his decision was aided in depriving relator of a valuable property right. So far as the principle is concerned, the committee might as well have been composed entirely of brothers of the prosecutor. While it is true that the complainant was not a party, in the sense that he was to be benefited by the result any more-than the members generally, it is none the less true that he preferred the charges, swore to all of them, and they were tried before his own brother, who voted to find the relator guilty. While I can find no controlling authority upon this question, I cannot regard such a trial as fair. Loubat v. Le Roy, as reported in 55 Abb. N. C. 1, was reversed in 40 Hun, 546. It is opposed to natural justice to deprive a man of his property under such circumstances. The common judgment of mankind is that a brother would not be impartial in such a contingency, no matter how hard he strove to do his duty. “Blood is thicker than water” and the sympathy arising from ties of near kindred tends to pervert the judgment and bias the action of the most honest man.

The claim that the relator should have exhausted his remedies within the society, by bringing an appeal to the supreme lodge before applying for this writ, cannot be sustained, for the by-laws gave him no right to appeal. The further claim that he has waived any of his rights is not supported by the authorities. People ex rel. Deverell v. Musical Mut. Protective Union, 118 N. Y. 101; 27 St. Rep. 963; Downing v. Society, 10 Daly, 262, 264; Marsh v. Huron College, supra; Cannon Corn Exchange, supra; Bac. Ben. Soc. § 102.

There must be judgment restoring the relator to membership, with costs.

Ordered accordingly.


source: Caselaw Access Project

author: Stover, J.

license: Public Domain

text:
    The People ex rel. Thomas Thornton, Pl’ff, v. Edward Hogan et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed August, 1895.)

    Constitutional law—Chap. 601 of 1895.
    Chap. 601 of 1895, abolishing the court of special sessions in New York city, is constitutional.
    Habeas corpus by Thomas Thornton against Edward Hogan and others to review the conviction of relator by respondents, assuming to act as justices of the court of special sessions.

      P. A. McManus, for relator; Lewis Lj. Delafteld, for resp’t, the clerk of the court of special sessions; Noah Davis and George Hoadly, for resp’ts, Hogan, Meade and Eeitner.
   Stover, J.

The relator, Thomas Thornton, was arrested and brought before a police justice in the city of New York on June 20, 1895, upon a charge of assault in the third degree. Being arraigned, he waived examination', interposed the plea of not guilty, and elected to be tried in a court of special sessions. The police justice held him to answer to that court, and the papers were transmitted to the clerk. He was admitted to bail June 25th. On June 28th the case was reached for trial in the court of special sessions, which was then composed of the respondents Hogan, Meade and Eeitner. Some testimony was taken, and an adjournment was taken until July 1st, at 10 o’clock. By the provisions of chapter 601 of the Laws of 1895 the jurisdiction theretofore vested in the police justices in the city and county of New York, and the courts held by them, including the courts of special sessions, etc., ceased and determined on the 30th day of June, 1895, at midnight, and the office of police justice in the city and county ■of New York was abolished ; and by the same act nine city magistrates were appointed in and for the city and county of New York, and the jurisdiction theretofore vested in the police justices, together with other jurisdiction, was conferred upon said city magistrates. Notwithstanding the provisions of this act, the said Hogan, Meade and Feitner, on the 1st day of July, 1895, as appears by the return to the writ of habeas corpus, claiming to act as a court of special sessions, adjudged the relator guilty, and that he pay a fine of $10, or stand commi tied not exceeding ten days to the city prison, and thereupon, it is alleged, took the prisoner into their own custody. Thereupon, upon petition, a writ of certiorari, directed to the respondent, the present clerk of special sessions, organized under the act of 1895; a writ of certiorari, addressed to Keating, the former clerk of special sessions ; and a writ of habeas corpus, directed to Hogan, Meade and Feitner, directing them to produce the relator, Thornton,—were directed to and did issue out of this court. The defendant Keating returns what is alleged to be a record of the proceedings had upon conviction, and the adjudication by the court of special sessions, constituted by the police justices Hogun, Meade and Feitner, convicting the relator of the offense charged, and ordering that he stand committed to the custody of the keeper of the city prison until the fine be paid, or not exceeding ten days. The present clerk of the court of special sessions, being the court organized under the act of 1895, returns the proceedings from the time of the filing of the com- , plaint charging the relator with assault down to the admission of bail on the 25th day of June, and further certifies that there is no record of further proceedings in his office. The return to the writ of habeas corpus on behalf of Hogan, Meade and Feitner recites the proceedings, and returns that the relator is held, in accordance with the usage in such cases, in the custody of said police justices, in order to afford him a reasonable opportunity to pay said fine, and was in the custody of said respondents when the writ of habeas corpus was served on them for the purpose aforesaid. The legal claim made by the respondents Hogan, Meade and Feitner is that the act of 1895, abolishing the police justices, of the city and county of New York, and creating the said magistrates, is unconstitutional, and that, notwithstanding the provisions of that act, the police justices still hold their offices, and were entitled to exercise the functions of their office, and to perform the duties of special sessions justices. That, the respondents had no right to hold the relator in their custody is quite clear. The commitment is to the keeper of the city prison, and it can hardly be said to be a justification for imprisonment that the prisoner is held against his own protest and desire, in order to afford him an opportunity to pay a fine which he has not signified his intention of paying, or any desire to make an effort to pay or obtain. Such a favor might be granted at his request, but it can hardly be forced upon him against his will. That his detention, then, by the respondents, is utterly unauthorized, need not require further discussion, and the case might well end here with the discharge of the prisoner, but for the provisions of the statute which requires that in a case where the person restrained is not lawfully in the custody of the person restraining him, the order remanding must commit him to the custody of the officer or person entitled to restrain him. A return, purporting to be extracted from the minutes of the court, shows that the prisoner has been convicted by persons claiming to act, and another return shows proceedings up to a certain time which are conceded by all parties to be regular and valid, viz. the proceedings up to the admission of bail. And while it would be more satisfactory to have the determination of questions of the character raised here after a trial and fuller consideration, yet I deem it best, however unfortunate it may be, that the questions raised should now be determined in order that there may be an orderly proceeding in the matter, and that unnecessary proceedings may not further complicate the questions which are of so much importance in the administration of criminal justice in the city. It is claimed on behalf of some of the respondents that the conviction is illegal, and, in order to determine to whose custody the relator should be remanded, it becomes necessary to examine the question as to whether he has been legally convicted of the crime, or whether he is still liable to be tried upon the charge upon which he is held ; for, if he has been convicted, he must be remanded to the keeper of the city prison, in accordance with the judgment of conviation, and, if he has not, he must be remanded -to the court of sessions for trial. By section 18 of article 6 of the constitution it is provided :

“Inferior local courts of civil and criminal jurisdiction may be established by the legislature, but no inferior local court hereafter created shall be a court of record. The legislature shall not hereafter confer upon any inferior or local court of its creation any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon county courts by or under this article. Except as herein otherwise provided, all judicial officers shall be elected or appointed at such times and in such manner as the legislature may direct.”

And by section 22 of the same article it is provided:

“Justices of the peace and other local judicial officers provided for in sections 17 and 18, in office when this article takes effect, shall hold their offices until the expiration of their respective terms.”

The respondents were in office at the time of the adoption of the constitution, and the terms of office of the various police justices expired by limitation of time, at different times, varying from four to nine years. It is contended by the respondents that the interpretation to be given to section 22 is that they shall hold for the full period of time for which they have been appointed or elected, and, necessarily, that it was not within the power of the_legislature to abolish the office during the time for which they had been appointed. Upon the other hand, is is claimed that the term of office-cannot continue longer than the office itself, and that, the legislature having power to abolish the office, the terms of the incumbent thereby terminates. The right of the legislature to abolish or destroy local courts of civil aud criminal jurisdiction is not and cannot well be questioned, but the contention on behalf of the respondents is that, as to the justices of such courts in office at the time of the adoption of the constitution, the legislature has no power to abolish the office, if by so doing the term of the incumbent is abridged. In construing section 22 it should be kept in mind that framers of the constitution were dealing with two classes of officers,—one created by the constitution,'and whose existence is independent of the legislature; and another class, created by the legislature, and whose existence could be terminated at any time by the power which created it; and this class of offices embraces inferior local courts of civil and criminal jurisdiction. There can be no question that the court of special sessions is an inferior court of local criminal jurisdiction. It was created by the legislature. Again, by section 18, all judicial officers, except as otherwiso provided by the constitution, are required to be elected or appointed at such time aud in such manner as the legislature may direct. So, then, without discussing the provisions of the constitution which designated the offices, and fixed the terms of the officers who should hold them, independent of the legislature, as such discussion is not profitable for the present consideration, there can be no doubt that under section. 18 of article 6, standing alone, the legislature had full power to create and destroy courts of special sessions, to fix the terms of the officials who should constitute the court, and to terminate the existence of the court itself at will. So that, unless section 22 lias abridged the right of the legislature in that respect, it would seem that the statute in question was a valid exercise of legislative power. In construing this section, effect is to be given to the legislative intent, if it can be-done, within the provisions of the instrument itself, and this section is to be construed in harmony with the other sections of the constitution. And in considering the constitution, as' well as acts of the legislature, the intention is to be gathered from the whole instrument, and effect is to be given thereto, and no single section or clause is po be so construed as to defeat the legislative intent, if, when read in connection with the other sections of the instrument, such construction can be given as will effect the legislative intent. Again, in this section the constitution deals with the terms officials. It is well understood that prior t.o the time of the taking effect of the constitution the “term" of police justices was of ten years’ duration, subject to the power of the legislature, above referred to, to abolish the office, and thereby end the term. The term, then, of police justices, was ten years, unless the legislature should abolish the office, and the abolition of the office was as complete a termination of the term of the holder as the expiration of the time for which he was originally appointed. In other words, his term would end at the expiration of ten years, and it. would end upon the abolition of the office by the legislature. There is to be gathered nowhere from the reading of the section in question an intention on the part of the framers of the constitution to curtail the power of the legislature over the office or the term of the incumbents, nor is there anywhere within the instrument any indication of an intention to create a longer term for the incumbents who happened to hold the place at the time of the adoption of the constitution than for those who had preceded o who might succeed them. It may well be said that, in the absence of section 22, it would have been held that the incumbents held their offices until the end of the terms, yet, out of abundant caution, perhaps, the framers of the constitution have declared that the local judicial officers in office when the article took effect should hold until expiration of their respective terms. Considering the section to mean that they should hold for the length of time which they were originally appointed, unless the legislature should terminate the term by the abolition of the office, the incumbents of the office at the time the constitution went into effect are placed upon precisely the same plane with other incumbents, with the same tenure that had attached to the office from the time of its creation, and that would attach to any office that might be thereafter created under the provisions of the constitution, making an harmonious scheme, depriving the legislature of none of its functions which had been expressly conferred by the instrument itself, violating no right of the individual which had accrued by the acceptance of the position, and reserving the rights of the public and the individuals to the forum provided by the constitution itself. It seems to me that any other construction would tend to render ineffectual the very provisions of the constitution itself. If it is to be said that the present incumbents of the office cannot be removed until they have served the full period of time for which they were originally appointed, it necessarily follows that the legislature cannot abolish the court during such incumbency, and for ten years from the time of the last appointment of a police justice the legislature would be powerless to act, and until the last of the incumbents in office at the time of the adoption of the constitution had served his full period of time the legislature would be restricted in the exercise of the power conferred upon it by the constitution. Such a construction ought not to be given to the section in question, if reasonable construction would prevent the suspension of the power of the legislature to deal with the office. The framers of the constitution have dealt in different places with the different subjects, viz. the offices themselves, and the terms of the incumbents. They have-prevented a contention as to the terms of the officers in office at the time of the adoption of the constitution by foreclosing the claim that any vacancy existed by reason of the constitution, and declaring that as to those officers they should continue until the expiration of .their terms, without expressing any limitation upon the power of the legislature granted by the same instrument, and using language which may be well construed, I think, to not abridge those powers. Again, the power of the legislature to add to or take from the jurisdiction of the courts or the offiicials who constitute them cannot be questioned. It may provide for the organization of a court of special sessions, independent of the police justices. There is no limitation upon the power of the legislature except as contained in the constitution itself, and that limitation in no wise prevents the legislature from entirely depriving the police justices, even if the office were continued, from sitting in a court of special sessions. It might designate an entirely new set of officials who should act as justices of special sessions. This it has done by the act in question. It follows that the act of 1895 was a valid exercise of legislature power, and that the term of the police justices of the city of New York was thereby ended, and that the respondents herein had no power to act as a court of special sessions subsequent to midnight of the 30th of June, 1895 ; that the relator’s conviction was void; that he is still liable to be tried in a special sessions upon the charge, and should be remanded for trial in the special sessions.

Ordered accordingly.


author: Clement, C. J.

text:
    The People ex rel. Daniel J. Creem, Pl’ff, v. George W. Palmer, as Comptroller, etc., Def’t.

      (Brooklyn City Court, Special Term,

      Filed August, 1895.)

    Municipal cobfobation—Improvements—“Means.”
    Where the commissioner of city works has made the requisition on which the mayor, comptroller and city clerk are required to borrow money on bonds of the city to pay for certain public improvements, the “means,” to pay for such improvements are provided within chapter 583 of 1888 ; and it is immaterial that the bonds have not been sold and the proceeds paid into the treasury.
    Application by Daniel J. Creem for a writ of mandamus to compel George W. Palmer, as comptroller of the city of Brooklyn, to certify a contract between said city and relator.

      Johnson & Lamb (Almet F. Jenks, of counsel), for relator ; Albert 6r. McDonald, for resp’t.
   Clement, C. J.

This is an application for a peremptory writ of mandamus to compel the comptroller to certify a contract made by the city of Brooklyn with the relator, pursuant to section 3 of title 18 of the Revised Charter (chapter 583, p. 1076, Laws 1888), which reads as follows :

“No contract or agreement for any purpose, involving the payment of any money, shall be valid and binding against said city, unless the comptroller shall certify or indorse on such contract or agreement that the means required to make the payments under such contract are provided and applicable thereto.”

The contract has been executed in accordance with law, and only lacks the certificate of the comptroller to make it valid. The payments on such contract are to be made from the proceeds of bonds issued pursuant to chapter 379, Laws 1,891. By that act (an amendment of the charter) the mayor, comptroller, and city clerk are required, on the requisition of the commissioner of city works, to borrow the necessary sums to meet the cost of construetian of auxiliary sewers upon the bonds of the city. It now appears that the commissioner of city works has made a requisition for the issue of bonds to the amount of $250,000, but the comptroller declines to certify the contract until the bonds called by the requisition are sold and the proceeds paid into the treasury. Payments on the contract will not be required for a considerable time, and if the bonds are now sold the city will lose the interest during such time.

In interpreting a provision of a municipal charter, or of any statute, it is always important to trace its origin and history. By chapter 63 of the Laws of 1862, a board of contracts was established in this city, and by section 3 (page 200, Laws 1862) it was provided that;

“It shall not be lawful for the said board of contracts to enter into any contract or agreement, or to incur the liability on the part of the city, unless the money shall have been previously appropriated and raised therefor, and in the treasury, except for local improvements and for objects the expense of which is to be raised by local assessments.”

By chapter 721 of the Laws of 1865 the board of contracts was ' abolished and the common council substituted in its place. In that act (section 8, page 1439) we find the following provision:

“Ho contract or agreement for any purpose, involving the payment of any money, shall be valid and binding as against said city, unless the comptroller shall certify or indorse on such contract or agreement that the moneys required to be paid on such contract •are in the treasury and applicable to such payment, and in excess of such amount as may be required to pay existing or prior contracts.”

In the charter of 1873 (Laws 1873, chap. 863, tit; 17, § 3) the provision now in force was passed, and, in the revision of 1888, was re-enacted as a part thereof.

In construing a statute, next after it's history, is to be considered its object. It was clearly the object of the legislature, in passing section 3 of title 18 of the charter, and prior similar laws, to prevent the making of contracts by the city unless the means of payment existed. In plain language, it was intended tho# the city should not contract a debt unless it could be paid when due. At first the law required that the money should actually be in the treasury, and that the comptroller should so certify. Subsequently the law was changed so as to read that the comptroller should only certify that the means required to make the payments were provided and applicable thereto. It is unnecessary to quote from the different dictionaries the definition of the word “means.” Money in the treasury would be means required to make payments, but the word is not limited in its meaning to money on hand. To speak of a person as a man of means clearly does not signify that he only has money on deposit in bank. The change in the charter in 1873 was, in my opinion, made for the "reason that the former provision was passed when payments on contracts were made from the annual taxes and local assessments. When laws were passed for great public improvements, which were paid for by the city at large and required the sale of bonds, the necessity was seen for the change. The alteration in this section was made for some purpose, according to a well-established rule of construction of statutes, and effect should be given to such purpose, if it can be discovered. Endl. Interp. St. § 382; Rich v. Keyser, 54 Pa. St. 86, 89; Ricket v. Railroad Co., L. R. 2 H. R. 175, 207; Lehman v. Robinson, 59 Ala. 219.

I" hold that the present right to sell bonds comes within the language of the section in question, and that the means required to make the payments on the contract with the relator are provided and applicable thereto, and the comptroller should so certify. The comptroller has acted in good faith in the matter, and was right in seeking a construction of the section by the courts.

Motion granted, without costs.


author: Hessberg, R.

text:
    The People, Plaintiff, v. Mary Howard, Defendant.

      (Court of Special Sessions, Albany County

      Filed August, 1895.)

    1. Criminal law—Arrest—Warrant.
    For mere misdemeanors, after their commission, an arrest can only be made upon a warrant from a magistrate.
    8. Same—Without warrant.
    A polled magistrate acquires no jurisdiction of a person who has been arrested by a police officer for a misdemeanor not committed in his presence.
    Proceeding- against Mary Howard for selling intoxicating liquors on Sunday, Defendant moves that she be discharged, on the ground that her arrest was illegal, and that the magistrate therefore acquired no jurisdiction.

      John T. Gobk, Asst. Dist. Atty., for People; John Gutmann, for def’t.
   Hessberg, R.

Upon the arraignment of the defendant before the police magistrate a motion was made for her discharge on the ground that her arrest was illegal, and that the magistrate, therefore, acquired no jurisdiction. For the purposes of this motion, the facts*are undisputed by the counsel. It is admitted that on a Sunday afternoon a woman was seen by a peace officer of the city coming out of a place licensed to sell intoxicating liquors, and, after walking some two blocks, was stopped by that officer, who followed her, and asked what she had under her shawl. She handed the officer a flask containing whiskey. The woman told the officer that she bought the whiskey from the defendant, and the officer thereupon went to the place where the defendant is employed, and where the sale was stated to have been made, and arrested the defendant on the charge of selling it in violation of the excise laws. Selling, offering, or exposing for sale or giving away any strong or spirituous liquors, wines, ales, or beer, is made a misdemeanor by section 82 of chapter 401 of the Laws of 1892. Section 177 of the Code o£ Criminal Procedure provides that “ a peace officer may, without a warrant, arresta person: (1) For a crime committed or attempted in his presence. (2) When the person arrested has committed a felony, although not in his presence. (8) When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it.” Section 170 of the Code of Criminal Procedure enacts that: li If the crime charged be a felony, the arrest may be made on any day, and at any time of the day or during any night. If it be a misdemeanor, the arrest cannot be made on Sunday or at night, unless by direction of the magistrate indorsed upon the warrant.” The plain intendment of the statute is that, for the commission or attempted commission of a felony, or where the officer has reasonable cause for believing the person guilty of a felony, he may arrest without warrant at any time: but where the offense committed is of the grade of misdemeanor the officer may only arrest the offender where it is committed or attempted in his presence, and, where not so committed, he must apply for a warrant, which cannot be executed at night or on Sunday without the direction of the magistrate indorsed on the warrant. Unless the magistrate becomes satisfied that the offender intends to make an effort to escape, or secretes himself, or that some other good cause exists, it is the evident purpose of the law that he should not direct the arrest for a misdemeanor at night or on Sunday. When we consider that all violations of city ordinances and all petty offenses are included in the- class of misdemeanors, and that a defendant is entitled to bail upon such a charge as matter of right, and not by favor of the courts, we see the wisdom of the enactment which preserves to the citizen whose presence can at all times be secured the right to be called to answer only during the hours when magistrates are required to be in attendance to either dispose of their cases or to accept the bail which the statute gives the defendant the right to offer.

It is claimed that the defendant must seek her remedy in a civil action against the officer who made the wrongful arrest. There is no doubt that an action for false imprisonment would lie. Murphy v. Kron, 20 Abb. N. C. 259; Kolzen v. B. & S. A. Railroad Co., 1 Misc. Rep. 148; 48 St. Rep. 656; Meyer v. Clark, 41 N. Y. Supr. Ct. 107; Burns v. Erben, 40 N. Y. 463. But this should not deprive the defendant of her right to deny the jurisdiction of the magistrate on the same grounds. It has been the settled law that for mere misdemeanors, after their commission, an arrest can only be made upon a warrant from a magistrate. People v. Adler, 3 Parker, Cr. R. 249; Meyer Clark, 41 N. Y. Supr. Ct. 107; People v. Pratt, 22 Hun, 300; People v. Shanley, 40 Hun, 479. In the Pratt Case, 22 Hun, 300, the relator was arrested by a policeman of the city of Elmira without warrant. In reversing the judgment of conviction the court says :

“We have neither been cited to nor been able to find any authority justifying an arrest by an officer without process for an offense of the grade of that of which the relator was convicted, unless it was committed in the presence of such officer; and we think no such authority exists, unless in cases where it is expressly given by statute. Moreover, when such arrests is authorized to be made without process, it is at least the better practice, if not indispensable to the regularity of the proceeding, to convey the offender at once before a magistrate, and there make complaint, and cause the issuing of a warrant against the accused for the offense committed. 1 Colby, Cr. Law, 140.”

In the Shanley Case, 40 Hun, 479, the defendant was indicted and convicted of an assault in the second degree for having resisted a police officer of Lansingburgh, who attempted to arrest him for a misdemeanor not committed in the officer’s presence. The1 defendant knew that a warrant had been issued. It was not, however, in the officer’s possession, having been left with the chief of police. The counsel for the people took the position that the warrant was in the constructive possession of the officer. In reversing the conviction and directing the prisoner’s release,. Learned, P. J., states:

“ It is argued that great inconvenience will arise from a contrary rule to one that any officer, knowing that a warrant is issued, cannot arrest for misdemeanor. That if one policeman has. the warrant a criminal may evade him, and keep within the beat of another, and the like. There is much force in this. But, on the other hand, the innocent citizen has a right to protection. It is hardly safe to say that, without a warrant, a policeman may arrest a citizen for an alleged misdemeanor. not committed within his-sight If the policeman was justified in arresting the defendant, then the innocent citizen must submit to arrest without having the right to see the warrant before he yields to the alleged authority. It had not been claimed that there is any special law giving peculiar authority to the policemen of Lansingburgh. We have, therefore, examined the question only on the general statute and on general principles.”

We have not overlooked the ease of People v. Eberspacher, 79 Hun, 410; 61 St Rep. 501; a decision of the second department, where the court stated that they did not believe that the point as to the manner of arrest affected the validity of a trial and conviction ; but the court drew a distinction between a proceeding to detain for trial and a trial before a court which had acqurired jurisdiction of the charge. In this case the committing magistrate did not have the power to try, and the objection to the jurisdiction of the person was taken upon the preliminary examination. Neither is the case of People ex rel. Gunn v. Webster, 73 Hun, 278; 58 St. Rep. 225, an authority for holding the defendant. In that case it appears that the relator was charged with one offense in the information, but tried and convicted of another; both, however, having been committed in the presence of the officer who made the arrest, or the officer with him and acting under his directions. In such case the court held that the contention that a warrant was necessary is not sustained by authority. The question whether an arrest in the absence of a warrant was legal when the offense hayl not been committed in the presence of the officer was neither presented nor considersd in the case. In People v. Pillon, 78 Hun, 74; 60 St. Rep. 810, it was held that the court of special sessions has power and authority to pass upon the sufficiency of the informotion in a case lodged in the police court of this city, that when the information is insufficient a motion for a discharge should be granted. It is unnecessary to now determine whether that decicision is sufficiently broad to authorize this court to pass upon the question under consideration, or as to whether a defendant is not bound to review the question of jurisdiction by certiorari, as the facts are conceded, and the qdestion was presented to be disposed of on the merits. The defendant is discharged.

Ordered accordingly.


author: Garretson, J.

text:
    John A. Smith, Resp’t, v. Herbert Williams et al., as Overseers, etc., App’lts.

      (County Court, Queens County,

      Filed August, 1895.)

    Poos—Overseers—Recovery.
    No implied obligation rests upon an overseer of the poor to compensate a person who has, voluntarily and without request from him, relieved a pauper.
    Appeal from a judgment in justice’s court in favor of plaintiff,

      Lincoln G. Haskins, for app’lts ; George A. Mott, for resp’t.
   Garretson, J.

We are unable to apprehend the theory upon -which this action was brought, tried, and carried on to judgment, unless it be that the defendants were liable upon an implied contract for the care and nursing rendered by the plaintiff to George Bedell. It must be conceded that there was no express contract creating the liability, for it is not alleged or proven that the plaintiff acted at the request of either defendant. The provisions of the Revised Statutes relative to the support of the poor, and kindred enactments, create the right of indigent persons and paupers to avail themselves of the public bounty, and regulate the manner in which that bounty shall be bestowed. That Bedell was entitled to relief as a poor person would seem to be the fact; yet neither he or any other person acting in his behalf was permitted to prescribe the manner in which the relief should be given, except so far as the statute provides. The defendant Gittens, upon application being made to him, properly offered to remove Bedell to the poorhouse. 8 Rev. St. (8th ed.) p. 2113, § 39. He presumably determined that Bedell required permanent relief and support. More than this he was not required to do, unless it appeared that Bedell required only temporary relief, or was sick, lame, or otherwise disabled, in which case, after notice to the supervisor of the town, and his examination into the facts and circumstances, and upon the supervisor’s order, a sum of money, not exceeding $10, might be expended for such temporary relief. If the expenditure of a greater sum than $10 was required to be made, the written sanction of one of the county superintendents of the poor must be obtained therefore. Id. p. 2114, § 42, as amended by Laws 1894, chap. 663. The public benefit conferred by the poor laws is personal to the individual. It is contemplated that he shall apply for the relief afforded thereby. It is no part of the duty of the overseer to seek him out and press these benefits upon him. He is not the chooser of the place and manner of his support, and must take what is to be had in the way the law confers it. *

We have examined the “poor laws ” of the state and the decisions thereunder with considerable care and have been unable to find any authority for this action. On the contrary,' we do find that, upon principle and by authority, it has been held that there is no implied obligation upon an overseer or county superintendent of the poor to compensate a person who has voluntarily relieved a pauper, and without request from the overseers of the poor. Minklaer v. Rockfeller, 6 Cow. 276; Palmer v. Vandenbergh, 3 Wend. 193. While both of the cases cited arose before the enactment of the Eevised Statutes, yet we deem them to be still applicable in principle and controlling of the case at bar. As was said by the court in Minklaer v. Rockfeller, supra, I do not see upon what legal principle the action can be sustained. The plaintiff was under no obligation to take care of the pauper. It was a commendable, humane act, undoubtedly; but it must be considered voluntary on his part, and cannot lay the foundation of an action against the overseers of the poor.

The cases cited by the respondent’s counsel upon the question of the defendants’ liability do not apply. They arose between superintendents of counties and overseers of towns in adjoining counties upon questions of local liability to support paupers.

From the foregoing observations, it follows that the judgment appealed from should be reversed.

Judgment reversed, with costs.


author: Rumsey, J.

text:
    The People, Pl’ff, v. James O. Sebring, Def’t.

      (Supreme Court, Steuben Oyer and Terminer,

      Filed May, 1895.)

    1. Indictment—Setting aside—Affidavit.
    An affidavit, made by the defendant on information and belief, without giving the source of his information, that incompetent evidence was given before the grand jury and that there was not sufficient evidence to warrant an indictment, is insufficient for the purpose of setting aside such indictment.

      2. Same—Convict—Habeas corpus ad testeficandum.
    The fact that a writ of habeas corpus ad testificandum was wrongfully issued to bring convicts from a penitentiary to testify before the grand jury cannot be objected to by the indicted person, but only by the warden of the penitentiary.
    3. Same—Habeas corpus ad testificandum.
    The supreme court has inherent power to issue a writ of habeas corpus ad testificandum.

    4. Witness—Privilege—Criminating questions.
    Where a person, who was indicted for forging a note which he had paid and taken up before the indictment was found, was served with a subpoena duces tecum to produce the note before the grand jury, but_ before the return of the subpoena, voluntarily at the request of the district attorney surrendered the note, and it was put in evidence before the grand jury, he, by surrendering the note, waives his right to withdraw it from evidence.
    5. Grand jury—Jury districts.
    Under chap. 374 of 1881, the grand jury of the court is properly selected from the towns in the jury district in which such court is held.

      6. Indictment—Duplicity.
    An indictment, which, charges, in the same count, the offense of uttering forged paper and also of inducing another person to commit the crime of forgery, is defective.
    7. Grand jury—Be-submission.
    An order for the re-submission of a charge to the grand jury is not necessary in the absence of a dismissal by a prior grand jury; there can be no dismissal of the charge unless the grand jury considered it and took some action upon it.
    James 0. Seeking was indicted for forgery, and he moves to' set aside the indictment, and demurs to the second count of the indictment.

      W. W. Clark, Dist. Atty., for People; John F. Little and F.A. Williams, for def’t.
   Rumsey, J.

The questions which are presented upon the motion to set aside the indictment will be considered in the order in which they are summarized in the brief of the counsel for the defendant. It may be said, however, before considering these questions separately, that the affidavit of the defendant as to what occurred before the grand jury, except so far as it is within his personal knowledge, cannot be accepted and acted upon upon this motion. He states, upon information and belief, that no other witnesses than Folsom and Daniels were examined, that incompetent testimony was given before the grand jury, that immaterial matters were allowed to be sworn to before the grand jury, and that there was not sufficient evidence to warrant an indictment. These statements upon information and belief are not supported by the testimony of anybody. The sources of the information are not given, and there is nothing in the case from which any of these facts can be said to be established. If the defendant had been informed as to these facts in such a way that a careful man would swear to their existence, he certainly would have been able either to produce the affidavit of the person who gave him the information, or to state what information he had received, so that there might have been at least some shadow of reason for supposing that he had some information on the subject. But nothing of that kind is done. It would be an extraordinary thing to set aside an indictment because the defendant alleged, in a general way, that he did not believe he ought to have been indicted. And that, it may be said, is all that this affidavit amounts to. Neither does the affidavit afford any sufficient reason for requiring the production of the testimony taken before the grand jury. The belief of the defendant, based upon alleged information, which he does not reveal, can never be sufficient to warrant a finding that there were improperties or irregularities before the grand jury, or a lack of evidence to support their finding. With these preliminary observations, the particular objections made to the indictment, and which are established by the evidence, will he discussed.

The first complaint is that Folsom and Daniels, two persons who were imprisoned in the state prison upon a conviction for felony, were brought from state prison to Corning, and sworn before the grand jury. That these people were competent witnesses, cannot be denied. Whatever may have been the rule of the common law, that rule has been entirely and thoroughly abolished iu this state, and a convict is j ust as competent as any other person to testify in any civil or criminal proceedings. Code Civ. Proc. § 832; Pen. Code, § 714. This competency is not limited in any way. The law does not say that a convict is a competent witness if he is properly subpoenaed, or if he is brought before the court by the proper process, or in a proper place, but his competency is as absolute as that of any one else. It follows, therefore, that the testimony of Folsom and Daniels were perfectly competent, unless there was something in the manner in which they were brought before the grand jnry which took away their competency.

It is said by the defendant that the court had no power to issue the writ of habeas corpus to bring them from the state prison to testify on these proceedings before the grand jury. Code Civ. Proc. § 2011. The power of the court to issue a writ of habeas corpus to bring up a prisoner to testify in a proceeding pending before it did not come into existence by virtue of any statute of this state, but it was an original power inherent in the courts. Whart. Ev. § 384. It was exercised in England, and the supreme court has, by statute and by provisions of the constitution, the .same power in that regard that was exercised by the court of king’s bench before 1776. The.power to issue a writ of habeas corpus to bring up a witness to testify is regulated by Code Civ. Proc. § 2008 et seq.. and one of those sections prescribes that the writ shall not be issued pursuant to those sections in certain cases therein mentioned. It is very doubtful whether section 2011 ought to be construed as taking away the power of the court to issue the writ in a case which is not provided for in the preceding sections. Such a provision might very easily result in a serious denial of justice. For instance, if the only witness to a felony were in prison for more than five years, the right to prosecute the person guilty of it would be barred by the statute of limitations before the convict could be produced as a witness to procure an indictment. A construction which would lead to such a result as that might cause serious inconvenience, and should not be adopted unless it is absolutely necessary. Whether it be necessary, or not, need not be decided here, because it is no concern of the defendant how the witnesses were procured upon whose testimony this indictment is found. If they were competent witnesses, and gave competent testimony, he has no right to demand anything further. If the court went beyond its power in issuing the writ of habeas corpus, the warden of the prison was the only person who could take advantage of that. If he chose to obey the order, although irregular, and to produce the witnesses, no harm has come to the defendant, and it is a matter with which he has no right to concern himself.

The next objection is that the defendant Wat compelled to give evidence against himpelf. The facts bearing upon that point are as follows: The note, for the forgery of which he was indicted, had been taken up by the defendant, and was in his possession. Before the sitting of the court he was served with a subpoena duces tecum to produce that note, That subpoena was returnable on the 10th day of April. The defendant was present as a witness for the purpose of appearing before the grand jury upon a complaint made by him against another person, whom he sought to have indicted. It appears from the testimony of the district attorney that before the return of the subpoena duces tecum he met the defendant in the street in the city of Corning, where the conrt was holding, and asked him for the note, which the defendant said he would willingly give him, and thereupon at once produced it to the district attorney. This was before he was asked to go before the grand jury. At the time of handing the note to the district attorney, he made a request that, if a charge against him should be presented, he might be permitted to appear and explain it, to which the district attorney consented. All this took place before he was called to appear before the grand jury, and out of court. The defendant is a lawyer, familiar with criminal practice and with proceedings before the grand jury. He knew, as everybody is bound to know, that he could not be compelled to give up the note until he had been called before the grand j ury, if, indeed, he could be compelled to produce it there; and he knew that anything which he did out of court, not under the compulsion of a subpoena, was done because he saw fit to do it, and for no other reason. After the witness had been sworn against him before the grand jury, he was permitted to appear and to make such explanations as he saw fit to make, having been told that he need not answer any questions unless he saw fit. It is quite true that no person can be compelled to give testimony criminating himself; and it is quite probable, as suggested by the judge giving the opinion of the court in Counselman v. Hitchcock, 142 U. S. 547, 581, that no man can be compelled to produce his private papers to enable people to use them to convict him of a crime. The courts have been careful to enforce this rule of law, and not to permit any violation of it, however important to the interests of justice it might seem that the evidence should be given. But the law which is thus tender of the right of accused persons does not prevent them from saying or doing whatever they may see fit by way of accusing themselves, both in court and out of court. The privilege not to give evidence is one which may be waived; and, if it is not waived, the person who permits himself to be a witness,or sees fit to produce Ms papers, must expect that what he says, or the papers he produces, shall be used against him, precisely as though the evidence was given or the paper produced by somebody else. Hobody would claim that if this defendant, meeting the district attorney upon the street, had admitted that he was guilty of the crime charged against him in this indictment, the district attorney might not be sworn to prove that statement, although the statement could not have been compelled after the defendant had been sworn. It is well settled that, whenever an accused person sees fit to put himself in the position of a witness, he is in precisely the same situation as any other witness, and the opposing party has the same right to cross-examine him as he would any other witness. Connors v. People, 50 N. Y. 240; People v. Tice, 131 id. 651; 43 St. Rep. 573. If the defendant desired to insist upon his right to retain this note in his own possession, he should have refused to give it to the district attorney, and insisted that he could not be compelled to do so. As he did not choose to do that, but preferred to waive his right, and produced the paper out of court, when he was not under the stress of subpoena, he is certainly not in a situation to say that he was compelled to produce evidence.

The next point made is that Folsom and Daniels were accomplices, and their testimony given before the grand jury was not corroborated. It might be sufficient to say, with reference to this point, that there is not one particle of evidence to sustain it. The only evidence on the subject is that of the defendant himself, who says that he is informed and believes that there was no corroboration of the testimony of Fulsom and Daniels. The weight to be given to such an affidavit as that has already been considered. What other testimony was given before the grand jury does not appear. It does appear, however, that the defendant himself went before the grand jury, and told his story with regard to this charge, from which it is necessarily to be inferred that there was other evidence than that of Fulsom and Daniels. The district attorney says that there was corroborating evidence, and, upon that condition of affairs, all that can be said is that there is nothing to support the statement of the defendant that no other evidence was given.

It is objected that the same charge was submitted to the grand jury at the September term, 1894, and dismissed, and that no order was made by the court for the resubmission of the charge. The facts upon that matter very clearly appear. It appears that in September, 1894, a complaint was made to the grand jury, against Folsom and Daniels, for the forgery of this same note for which the defendant is now indicted; that several witnesses were examined upon that charge, one of them being this defendant himself. It appears that at that time both Folsom and Daniels were indicted. After the matter of this note had been disposed of, and the indictment had been found, Folsom desired to appear before the grand jury, and did go before them and make a statement. In the course of that statement he said that he was induced to forge the Bradley Layton note by the defendant here, but that statement was made long after the matter of the Bradley Layton note had been disposed of. One or two witnesses were sworn with regard to this matter after Folsom’s statement, and there the matter seems to have dropped. The minutes of the grand jury do not disclose that there was any complaint made against Sebring, or that this matter was considered; and while two or three of the grand jurors, whose affidavits are produced by the defendant, say that testimony was given with regard to that charge, no one of them says that it was considered by the grand jury, or that any vote was taken on the question of indicting him. Seventeen of the grand jurors, whose affidavits are produced by the people, testify that no charge was presented against him, and that no case was presented, or considered or acted upon by them, against him. It is very questionable whether the affidavits of the grand jury as to what occurred before them ought to have been presented, but as they were presented both by the defendant and by the people, and no objection is made by either party to the consideration, I have considered them. Considering those affidavits, the people establish, by a large preponderance of the testimony, that no charge was made against Sebring, and that there was no action upon it, and consequently there could be no dismissal of it. It is quite true that Folsom made some charge against him in the couse of his general statement, and that, because of that statement, two witnesses were examined upon the subject. But it must be adopted as facts of the case that there was no consideration of a charge against him, and that, consequently, there was no dismissal of it. That being so, no order for a resubmission was necessary, because that is only made necessary when the charge against the person has been dismissed by a grand jury. There clearly can be no dismissal of a charge unless the grand jury considered it and took some action upon it. That was not done here. y

The next point is that the grand jury was not properly organized. It appears from the testimony that there was considerable irregularity, to say the least, in the way in which the names of the grand jurors were selected by the supervisors. In fact, it may be said that upon the affidavits it appears that the supervisors, as a body, never acted, but that the lists presented by the several town supervisors were filed with the county olei'k, and by him those names were put upon slips, and put into the grand jury boxes. It appears that he put the names of the grand jurors from the towns and cities in the Southern jury district into one box, and those from the Northern jury district into another. It is complained that this was an irregularity. The law dividing the county of Steuben into jury districts (chapter 374, Laws 1881) does not provide, in terms, that the grand jury of each court shall be selected from the towns in the jury district in which that court is held; but such has been the practice in the county since 1853, when the county was first divided into jury districts. During all those years, grand jurors for the courts in the Southern district have been drawn from the towns of that district; and, for the Northern district, from the towns of that district. That practice has been well known to every judge and lawyer living in the county. The county judges presiding at the drawing of these grand jurors have been men eminent in the profession, and although hundreds of indictments have been found since that mode of drawing began, many of them for grave offenses, and not a few strongly litigated by eminent counsel who were aware of this manner of drawing grand jurors, no objection of this kind seems to have been 'taken. This amounts to a contemporaneous construction of the law, which is of very high authority, and it should be followed, unless the law is so plain as to imperatively require another construction. That is not the case here. I think it is proper, and it was intended that the grand jurors for the courts in the Southern district should be drawn from the towns in that district ; and, for the Northern district, from the towns in that district. It appears that, although the names of the men drawn as grand jurors were not selected by the board of supervisors, yet they were presented by the clerk of the board to the county clerk, and by him put into the box. It is conceded that all the proceedings connected with the drawing and organization of the grand. jury were properly taken. That being so, I think the case is precisely within the decision of the court of appeals in People v. Petrea, 92 N. Y. 128; and, within that case, the grand jury must be held to have been a legal body, and the indictment found by them to have been good. The case of People v. Petrea was examined by the court of appeals in a subsequent case, and by them followed, and it must be held that it is now undoubtedly the law of this state. People v. Hooghkerk, 96 N. Y. 149.

This disposes of all the points made by the defendant upon the motion to set aside the indictment, and the conclusion reached is that the motion must be denied.

The defendants has, however, filed, and here presents a demurrer to the second count of the indictment, which has been presented at the same time. The ground of demurrer is that more than one crime is charged in the second count of the indictment, to wit, the crime of forging and the crime of uttering forged paper. The second count of the indictment, in the first place, charges the defendant with uttering a forged note, knowing it to be forged; and in the same indictment it charges that at the same time and place he counseled, induced, aided, and procured Edward E. Folsom and William J. Daniels to forge the name of Bradley Layton upon the back of the note, with intent to injure and defraud the said Bradley Layton. There can be no doubt that this second count not only charges the uttering of a forged paper, but it charges that Sebring procured the forgery to be committed; and that amounts to charging as a principle in the crime of committing á forgery under section 29 of the Penal Code. Section 278 of the Code of Criminal Procedure provides that the indictment must charge but one crime, and in but one form; but it is permitted, by the next section, to charge the crime in the separate counts to have been committed in a different manner, or by different means, or, where the acts complained of may constitute separate crimes, to charge the different crimes in separate counts. Within that provision of the statute, this indictment might have been charged in the separate counts the forgery of this paper by Sebring, and "the utting of the forged note, knowing it to be forged, because both are parts of the same transaction, and constitute the same crime. People v. Adler, 140 N. Y. 331; 55 St. Rep. 669. But this indictment is hardly within that case. In that case the crime •charged was forgery in the second degree, as here; committed, in the first place, by forging the paper, and in the second place, by uttering the forged paper, knowing it to be forged. In this case the count contains something more than that. It not only charges the defendant with uttering the forged paper, knowing it to be forged, but it charges him, also, with procuring and inducing Fol-sum and Daniels to forge the paper, which is also forgery in the second degree, but it is another act constituting the forgery than the uttering of the forged paper. We have, therefore, in the second count, a charge of uttering forged paper, and. also of inducing ■another person to commit the crime of forgery, I think that is practically the charging of two different offenses in the same count of the indictment. To be sure, but one crime is charged in the count, to wit, the crime of forgery in the second degree ; but, within the allegations of the count, that crime may be claimed by the people to have been committed either by uttering forged paper, or by inducing Folsom and Daniels to commit the forgery. Such a mode of pleading, I think, is not permitted by the statute, and renders this count demurrable, and for that reason the defendant must have judgment upon the demurrer upon the second count. Ordered accordingly.


author: Bischoff, J.

text:
    William Drennan, Pl’ff, v. Mayor, Aldermen and Commonalty of the City of New York, Impleaded, etc., Def’ts.

      (New York Common Pleas, Special Term,

      Filed August, 1895.)

    Pleadings—Complaint—Mechanic’s lien.
    In an action by a subcontractor to foreclose a mechanic’s lien for materials furnished to the contractor and used in the performance of a contract, between the latter and the city of New York, the failure of the complaint to, allege the terms of such contract and the amount due the contractor thereunder at the commencement of the action, cannot be taken advantage of by the contractor, but is available only to the city.
    Action by William Drennan against the mayor, etc., of the city of Hew York and others, impleaded with William J. Martin and Hewitt Boyce, to foreclose a mechanic’s lien. Defendants Martin and Boyce demur' to the complaint on the ground that it does not comply with Laws 1882, chap. 480 (Consolidation Act), § 1824, by setting out the terms of the contract between defendant city and defendant Martin, the contractor and the amount due the contractor thereunder at the commencement of the action.

      J. Baldwin Hands, for pl’ff; William H. Bead, for demur-rants.
   Bischoff, J.

This is an action brought by a subcontractor to foreclose a mechanic’s lien. The demurrant Martin was the principal contractor, and the demurrant Boyce was joined because claiming some interest in and lien upon the fund in the hands of the corporation defendant, upon which fund the foreclosure is sought. The last-named defendant has interposed an answer upon the merits. The portion of the complaint involved in the present discussion follows:

“Second. Upon information and belief the plaintiff further alleges that on or about the 12th day of June, 1894, a contract was entered into between the defendant the mayor, aldermen and commonalty of the city of Hew York and the defendant William J. Martin, whereby said defendant Martin contracted to furnish and supply all materials and labor for the purpose, and to open, regulate and grade 168th street from Amsterdam avenue to Kings-bridge road, in the city of New York.

“ Third. That thereafter, and on or about the 12th day of June, 1894, the defendant Martin entered upon the performance of said contract, and at the time of filing the notice of claim and lien hereinafter mentioned he had performed part of said contract, but had not completed the same, and was entitled to payments on account thereof, aud, upon information and belief, that there was at the date of filing of said lien, and now is, moneys in the control of the said city, due or to grow due under said contract to said defendant Martin, more than sufficient to satisfy the plaintiff’s said claim and lien after satitfying all prior liens thereon.”

Were the demurrer interposed by the defendant corporation; it would have to be sustained under the authority of Breuchaud v. City of New York, 61 Hun, 564; 41 St. Rep. 158, the terms of the original contract and the amount due the contractor thereunder at the commencement of the action not being set forth. But for that authority it does not seem that these allegations must needs be taken as insufficient under the usual practice obtaining in actions of this character, and it becomes a question whether the rule stated applies to this case where the„ demurrants are parties defendants other than the owner. In this regard, I can find no logical ground for applying the rule in ' question to a defendant contractor. Obviously, the particularity of statement is required for the benefit of the party holding the fund for the payment of which his property is security ; that for his protection alone the facts showing an existing indebtedness at the commencement of the action should be alleged. For of what detriment to the contractor is the establishment by the plaintiff of the true, or perhaps an unfairly large, indebtedness from the owner to the credit of the contractor himself under a somewhat hazy form of pleading? Where the benefit if he restrict the amount of the fund constituting the full debt due him from the owner ? Should the latter finally choose to invoke the rule in question by attacking the complaint, the plaintiff is-the only loser. Should he not, the plaintiff’s opportunities under the liberal complaint of establishing a less restricted indebtedness, can but favor the contractor by leaving a balance or lessening a deficiency. So, too, of the demurrant Boyce, the party joined as having an interest in the fund, the larger the fund, the better for him, if a subsequent lienor; if a prior, he is in no way prejudiced. In other respects, the allegations are not questioned.

Plaintiff makes a point that in another portion of the complaint a cause of action upon contract is alleged against the defendant Martin sufficiently to support the pleading, apart from the point considered, and it is true that the facts in the abstract support the contention. Bearing in mind, however, the nature of the action, it might not be practicable to uphold the complaint upon this ground (Swart v. Boughton, 35 Hnn, 281), although it is not essential that the point be decided in view of the above conclusion. Demurrers severally overruled, with costs. Leave to plead over on usual terms.


text:
    John C. Dudley, Pl’ff, v. Flushing Jockey Club, Def't.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    ■Gaming—Horse racing.
    Chapter 570, of 1895, authorizing horse races to be run for purses or stakes to be contributed for that purpose, is unconstitutional.
    Action by John 0. Dudley against the Flashing Jockey Club to recover the amount of “ sweepstakes ” alleged to have been won by plaintiff’s horse at a certain race. Defendant demurs to the complaint.

      Joel M. Marx, for pl’ff; Benjamin Steinhardt, for def’t.
   Bischoff, J.

The complaint in this action sets forth all the essential facts showing compliance by the defendant with the provisions of chapter 570, Laws 1895, entitled “An act for the incorporation of associations for the improvement of the breed of horses and to regulate the same; and to establish a state racing commission.” Plaintiff then alleges in detail the terms and conditions under which a certain horse race was run, under the auspices of the defendant; avers that the horse owned by him, and duly entered for the race, agreeably to such terms and conditions, became the winner, and claims the amount of the “ sweepstakes ” to which, under his agreement with defendant, he thus became entitled, and which, upon demand, the latter had refused to pay. The demurrer is interposed generally upon the ground of insufficiency, but the argument was confined principally to the theory that the enactment above referred to offends against the provision of the state constitution expressed as follows:

“Nor shall any lottery or the sale of lottery tickets, pool selling, bookmaking or any other kind of gambling hereafter be authorized or allowed within this ■ state, and the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section.” Const. 1895, art. 1, § 9.

If it could be said that the statute in question merely sought to suspend the operation of some existing penal statute, with regard to the acts authorized by. its terms, and recognized no contractual right arising from transactions such as the complaint sets forth, the pleading should be held insufficient in substance, without touching upon the question of constitutionality, since, apart from express legislative sanction, the plaintiff could not be heard in law to complain upon the state of facts disclosed. Gibbons v. Gouverneur, 1 Denio, 170; Ruckman v. Pitcher, 1 N. Y. 392; 3 Rev. Stat. (Banks Bros.’ 7th ed.) p. 1962, chap. 20, tit. 8, art. 3, § 8. An act of the legislature is to be supported in every instance, if possible, and is only to be declared unconstitutional when its language plainly precludes every reasonable construction other than that it was intended by the enactment to infract the organic law. People v. Briggs, 50 N. Y. 553. Indubitably, however, to my mind, the statute under consideration recognizing a contract obligation arising from a state of facts such as that in suit, by obvious implication accomplishes, so far, a repeal of the section of the Bevised Statutes above cited, and, as a result, the plaintiff’s apparent right is founded upon an infraction of the constitutional provision previously set forth. The act provides (section 3) :

“ At such trotting or running race meetings the corporation, or the owners of horses engaged in such races, or others, who are not participants in the race, may contribute purses, prizes, premiums or stakes to be contested for, but no person or persons other than the owner or owners of a horse or horses contesting in a race shall have any pecuniary interest in a purse, prize, premium or stake, contested for in such race, or be entitled to or receive any portion thereof after such race is finished, and the whole of such purse, prize, premium or stake shall be allotted in accordance with the terms and conditions of such race.”

Here, then, we have an express statutory recognition of a pecuniary interest in the result of the races, as authorized by the act. Such an interest, depending upon a chance or contingent event, as, in this case, an interest in sweepstakes abiding the re-suit of a horse race, in which all the participants joined in furnishing the stakes (Harris v. White, 81 N. Y. 532), did not heretofore exist in legal contemplation Gibbons v. Gbuverneur, supra. Further, the owner of the winning horse is expressed to be “entitled” to the amount of this pecuniary interest, and the allotment of the stake is required to be in accordance with the terms and conditions of the race. The attempt is clearly to legalize the wager. That this statute, in so far as it authorizes and allows a recovery for “sweepstakes,” won upon a horse race, contravenes the constitutional inhibition against the authorization of “any kind of gambling,” is self-evident. The outcome of a horse race depends upon “chance ” (Irving v. Britton, 8 Misc. Rep. 201; 58 St. Rep. 836); a contract for the payment of “sweepstakes” is void under the statute against gaming (Gibbons v. Gouverneur, supra); and every element of uncertainty and contingency of the event upon which the money is wagered or staked is present in such a case, to bring the transaction within the letter and spirit of the word “gambling.”

I conclude that the demurrer should be sustained, and judgment directed for the defendant, with costs.


author: Pryor, J.

text:
    The People ex rel. Mary N. Jordan, Pl’ff, v. Board of Education et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed September, 1895.)

    1. Cebtiobabi—Discretion.
    The action of the board of education in refusing to open its decision, dismissing the relator from her position as a teacher upon her default, and to grant a rehearing, is purely a matter of discretion, and such determination is not subject, cm certiorari, to revision and reversal by another'tribunal.
    2. Mandamus—Review.
    . Mandamus is not a remedy for reviewing a decision of the board of education in dismissing the relator from her position of teacher.

      Application by Mary N. Jordan for a writ of certiorari and a writ of mandamus to review the decision of the board of education dismissing her from her position as a teacher, and to compel her reinstatement.

      Matthews & Koehler, for relator ; Francis M. Scott, for resp’ts.
   Pryor, J.

By the notice of motion, the respondents are required to show cause why a writ of certiorari should not issue to review relator’s dismissal from the position of teacher in a public school of the city, and why a writ of mandamus should not be allowed to reinstate the relator in that position. The relator was dismissed the 2d of March, 1895; and her application for a certiorari was made September 6, 1895. Obviously, therefore, the four months’ limitation in section 2125 of the Code opposes an insuperable bar to the issuance of the writ. Hence, in their belief, counsel for the relator disclaim any purpose to challenge her dismissal, and propose only to review “the refusal of the board of trustees to grant her a rehearing.”

Whether a default shall be opened and a rehearing had is purely matter of discretion, and the determination of the question is not subject to revision and reversal by another tribunal. People ex rel. Masterton v. French, 110 N. Y. 494; 18 St. Rep. 231; Stevens v. Glover, 83 N. Y. 611; Fleischmann v. Stern, 90 id. 110; Code, § 2140. Certiorari to compel the concession of a favor would be an anomaly in jurisprudence. But, upon the papers, it is not apparent that the respondents abused their discretion in refusing the rehearing. The trial of the relator was upon due notice. She failed to appear and 'defend, because, as she now alleges, she was prevented by illness. But she did not communicate the fact of her disability to the board, nor request an adjournment until her recovery. In their brief her counsel say that she “refrained from attending the meeting, and allowed the trustees to proceed in her absence,” because it was manifest that the board “had determined to get rid of her, * * * and she believed she would not be given a fair and impartial trialand yet she applied to the board for a rehearing, and proposed to make a defense before the same tribunal. She had notice of her dismissal on the 4th of March, and not until the 4th of June did she solicit a rehearing. Then, too, the fact of her illness, as the occasion of her absence from the trial, is challenged by the respondents. The case is plainly and essentially distinguishable from People v. Martin, 13 Misc. Rep. 21; 67 St Rep. 876. My conclusion is that the reason given by the respondents for the denial of a rehearing—namely, loches and bad faith—is not so destitute of foundation as to imply a mere arbitrary exercise of power.

Supposing the application for the writ in due season, and the action of the board in the dismissal of the relator open to review, upon the authorities I should be contrained to uphold the determination. People v. Board of Education, 3 Hun, 177; Gorlitz v. Board, 52 N. Y. Supr. Ct. 520; People ex rel. Fisk v. Board, 69 Hun, 212; 53 St. Rep. 314. In applying both for a writ of certiorari to review the trial and of mandamus to reinstate her, the' relator would unite processes of essentially distinct and repungnant functions; namely, to revise a judicial determination and to enforce a ministerial duty. But, disregarding the misjoinder, and waiving, too, the objection of loches (People ex rel. Miller v. Justices of Court of General Sessions, 78 Hun, 334; 60 St. Rep. 720), the relator exhibits no case for the allowance of a writ of mandamus. Her right is not clear. She had another remedy,—certiorari,-—which she lost by culpable delay. Another appointee occupies the places to which she would be restored, and her dismissal was the result of a trial which may not be reviewed upon mandamus. People v. Common Council, 78 N. Y. 33, 39; People ex rel. McMackin v. Board of Police, 107 id. 235; 11 St. Rep. 412; People ex rel. Millard v. Chapin, 104 N. Y. 96; 5 St. Rep. 588.

Writs disallowed, without costs.