text:
    THE ARCTIC FIRE INSURANCE COMPANY, Respondent, v. JEREMIAH AUSTIN, President of the Albany and Canal Line of Tow-boats, Appellant.

      Contributory negligence— when does not prevent recovery,

    The contributory negligence which excuses the defendant from liability for injury, caused, in part at least, by his negligence, must be the personal act of the party injured; otherwise, as to him, all contributing thereto are joint wrongdoers.
    Where a canal boat, forming part of a tow under the charge of the defendants, was sunk by a collision occurring between it and another of the defendant’s tows, which collision was caused, in part, by the negligence of the captain of the canal boat, held, that as the owner of the cargo of the canal boat could not control the movements of the boat nor the conduct of her crew, he was not responsible for the negligence of her captain, and that he was entitled to recover the value of the cargo from the defendants.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    Upon the first argument of this appeal, the General Term reversed the judgment below. Subsequently a motion for a reargument was made and granted for the reasons stated in the opinion.
    . George W. Parsons, for the respondent.

      R. D. Benedict, for the appellant.
   Westbrook, J.:

At the New York Circuit, on the 7th day of March, 1872, by the verdict of a jury, Mr. Justice Brady presiding, the plaintiff recovered a verdict for the sum of $7,814.24 against the defendant. The defendant appeals from the judgment perfected upon the verdict, and also from an order refusing a new trial, a motion for which was made upon the minutes of the court, and the case is now heard upon a reargument.

The plaintiffs were the insurers of a cargo of corn which the owners, on the 1st day of August, 1863, shipped on the canal boat “ J. L. Parsons,” to be carried from Buffalo to New York. On the night of August 19, 1863, the “J. L. Parsons,” with several other boats, and having the corn on board, while being towed from Albany to New York by the steamer McDonald,” belonging to the defendant, collided with the tow of the steamer “ Austin,” also belonging to the defendant; from the effects of which the J. L. Parsons” sank. The plaintiffs, having paid the loss and taken an assignment of the claim of the owner of the corn, for damages, brought this action. Upon the trial of the cause, it was claimed by the counsel of the defendant, that the boat “J. L. Parsons,” which had the corn on board, was under the charge of her own captain, and that her commander could not be controlled by the captain of the steamer, and that, as the captain of the “ Parsons ” had been guilty of' negligence, the plaintiff could not recover. As to the question, was the captain of the tug-boat the commander of the towed craft, there was evidence given on both sides. The learned judge left it as a question of fact, for the jury to decide: who controlled the “ Parsons ” whilst in tow of the steamer, her own commander or. the captain of the ■ steamer % And he further told them, that if they found that the canal boat “ was subject to the orders of the captain of the tug-boat,” and that he “ omitted to take the proper precautions, which he should have taken for safe navigation and for the safe delivering of freights, such, for example, as directing and insisting upon a light being put out, the plaintiff would be entitled to your verdict, and you need not consider any other question in the ease.”

The judge also further charged the jury: “If, however, you should come to the conclusion that the captain of the tug-boat is not the captain of the whole flotilla, then it will be necessary for you to pass to the consideration of the questions in the case, whether the collision was the result of negligence on the part of the defendants; whether the “Parsons” contributed to the injury which was sustained by her, and in consequence of which , the freight was lost.”

TÍie counsel for the defendant excepted to that portion of the charge which submitted to the jury, as a question for them to decide, whether the “ Parsons ” was or was not, whilst in the tow, subject to the orders of the captain of the steamer. Upon the authority of the former decision made by the court in this cause, upon the first argument of the present appeal, it.was thought that this exception was fatal to the verdict; for this court having held as matter of law that the captain and crew of the towed boat were not subject to the orders of the steamer, it was improper to submit that question, as one of fact, to the jury. On motion, however, by the plaintiffs, a reargument was ordered, to discuss the questions, whether, conceding the error of the charge in this respect, the defendant has sustained by it any injury whatsoever; and whether, also, conceding that the “ Parsons ” was under the control of her own commander, and that he was guilty of contributory negligence, such contributory negligence would excuse the defendant, provided the loss was indisputably caused in part by the negligence of such defendant; and whether it is indisputable that the defendant was guilty of negligence which caused the injury.

In the discussion of the questions which this reargument involves, no opinion is pronounced by the writer of this opinion, whether the view of the majority of this court, as contained in 54 Barbour, or that of the minority, is the sounder; nor whether the learned'judge before whom the cause was last tried, did or did not pursue the proper course, in leaving to the jury the question of the command of the “ Parsons ” as one of fact. Two General Terms of this court having determined, as matters of law, that the captain of the towed boat commanded her whilst in the tow, it would ill become us now to unsettle that question. Upon this argument it is assumed that those questions are settled in this court, and we pass therefore to a consideration of the new ones which have been now discussed.

First. Assuming that the defendant was-guilty of negligence, and that the captain of the Parsons ” was guilty of contributory negligence, is the defendant to be acquitted from the consequences of the injury %

There is no dispute as to the general rule, that, when a person is injured by the negligence of another, he cannot recover for such injury, if his own. negligence contributes to the result. It is not perceived, however, why, when a person, not personally at fault, sustains injury, either in person or property, by the negligenee of others, he should be precluded from a recovery by the; contributory negligence of a party who is carrying him or his property, when he is unable to" control, and does not control, the move- < ments of the latter. To the party thus injured, all who contribute thereto are wrong-doers, and are jointly and severally liable therefor. In Chapman v. New Haven Railroad Company it was held I that “ a passenger by railroad is not so identified with the proprie-! tors of the train conveying him, or their servants, as to be responsi- j ble for their negligence,” and that he could “ recover against the ! proprietors of another train for damages from a collision through j their negligence, though there was such negligence in the management of the train conveying him as would have defeated an action by its owners.”

In Colegrove v. The New York and New Hamen Railroad Company and The New York and Harlem Railroad Company, it was held that Cf a passenger, injured b'y a collision resulting from, the concurrent negligence of two railroad corporations, may maintain a joint action against both.” In Brown v. The New York Central Railroad (which was a case of a passenger in a stage injured by the defendant), it is true that, while the judge (Davis) who delivered the opinion could see no difference in principle between the relation which the party injured in that case sustained to her carrier from that of a passenger on a train of railroad cars, he intimates that the court were of opinion that the passenger was responsible for the carelessness of the driver of the vehicle which carried her; yet the principle of the two former cases has been since again enunciated and firmly held by the Court of Appeals. In Webster v. The Hudson River Railroad Company, it was held: “ The negligence of defendant, whereby plaintiff was injured, Being established by evidence, and there being no pretense that the plaintiff was guilty of any personal negligence, the negligence of a third party, contributing to the injuries, furnishes no excuse for the negligence of the defendant, and no reason why he should not respond in damages.” In Barrett v. Third Avenue Railroad Company, which was an action by the plaintiff for injuries sustained whilst riding in a car of the defendant, caused by a collision with the car of another party, it was held, “ that if the acts of the defendant’s servants contributed to the injury, the defendant was liable, although the negligent acts of the persons in charge of the other car were also contributory;”-and “that the'comparative degrees in the culpability of the two, will not affect the liability of either. If both were negligent in a manner contributory to the result, they are liable jointly or severally.” The same doctrine is maintained in Metcalf v. Baker. In that case the Superior Court of the city of New York, at General Term, held that, “where plaintiff was riding gratuitously in A’s carriage, and A was driving at- the time, and by a collision with defendant’s wagon, driven by defendant’s servant, plaintiff was thrown out and injured, * * * the fact that the accident was caused by the joint negligence of A and defendant’s servant would be no defense.”

It is difficult to see why these cases and others holding a similar doctrine, do not apply to the one before us. The principle which they establish, is, that the contributory negligence which excuses the defendant from liability for injury caused, in part at least, by' his negligence, must be the personal act of the party injured; otherwise, as to him, all contributing thereto are joint wrong-doers. In the present action, the owner of the corn was guilty of no negligence whatever. He placed his property on the “ J. L. Parsons,” to be carried to New York. He did not control the movements of that boat, nor the conduct of her crew, any more than the passenger .in the train could direct its. management. If the contributory negligence of the carrier of the passenger will not excuse the negligence of another which injures him, then no reason can be given why the contributory negligence of the “ J. L. Parsons” can excuse the present defendant, if it was guilty of negligence. The cases are exactly parallel in principle, and should he governed and decided by the same rule.

The case of Milton v. Hudson River Steamboat Co., affirms no contrary principle. The plaintiff in that case was the charterer of the canal boat, and the hirer of the hands who ran it; and consequently, any negligence of those in charge was Ms negligence. That would be like the ease of a suit brought by one owner of a boat against another, or of one railroad company against another; in either of which eases the contributory negligence must defeat the recovery. The owner of the corn, the injury to which is the subject of this action, did not charter the J. L. Parsons.” He simply contracted for the carriage of his property, and being in no wise personally in fault, it is held that the contributory negligence of the vessel carrying his property, will not exempt the defendants from liability.

We are now brought to the questions, whether the undisputed evidence in the cause does not show that the defendant was guilty of some negligence which contributed-to the injury; and whether, by any possibility, the jury would have been warranted in finding that the defendant was free from all negligence, and that the negligence of the captain of the “ Parsons ” was the sole cause of the injury.

In view of the fact that both steamers — the “ Austin ” which moved the up tow, and the “ McDonald ” which drew the down tow, of which the “ Parsons ” formed a part — were owned by the defendant, and that, consequently, both steamers and both tows were moved according to its will, and placed where it saw fit to put them, how it can be free from all fault in a movement which it controlled, and which resulted in an injury, it is exceedingly difficult to conceive. The “ Parsons ” occupied a position assigned to it by the defendant; at the time of the collision, it was in a part of the river where the defendant had drawn it; and the body which came in collision with. it, was propelled and directed by the same hand. To hold, under such circumstances, that the defendant was entirely free from fault, and that the “ Parsons ” was the'sole cause of the injury, would be similar to a decision which holds a person, bound and carried where another takes him, responsible for the position he thus occupies against his will.

The “Parsons” was on a hawser tier, in rear of the steamer. There were three other boats by her side, she being the eastern one of the three. In her rear were three other tiers. The collision occurred between Magazine Point and West Point, in Hudson’s river. Though the river was narrow at that point, there was no difficulty in avoiding a collision. The excuse given by the-pilot of the “ Austin ” for the accident, is, that after passing the “ McDonald ” on his way up the river, and not seeing her hawser tow because, as he claims, of the want of lights upon the boats composing it, he immediately hauled out toward the middle of the river, and the result was a collision between the barge Washington,” which was in tow on the west side of the Austin,” and the “ Parsons.” It is claimed that the want of a light upon the boat carrying the corn, was therefore the sole cause of the accident. To this position of the defendant, there are several answers : 1st. It is carelessness and negligence in steamers approaching each other, when the night is so dark that they cannot see what they do, to assume that a certain state of facts exists, of which they have no knowledge. It surely would not be prudent for any person to govern his movements in implicit trust that no other person is negligent. It would be neither safe nor prudent for a person to drive rapidly over a road when he could not see, upon the assumption that no person would be so careless as to leave a dangerous obstacle in his path. Neither is it" prudent, and not negligence, for the pilot of a steamer, when meeting another which he knows has generally hawser tows sometimes carrying and sometimes not carrying a light, to assume, because he sees no light, that there is no hawser tow, and to act upon that assumption when it is so dark that he cannot see. It may be true that the want of a light upon the" injured boat, may contribute to the injury in such a way as to prevent a recovery by its owner for the damage done to it, but no one can say that the steamer, under such circumstances, was not equally in fault. 2d. The pilot of the “ McDonald ” knew (if the evidence of the defense is to be believed) that his hawser tow carried no light, and if he supposed that there was danger, from the want of such light, of the pilot of the Austin ” supposing he had no hawser tow, he should have informed him that he had, by the sound of his whistle, which all the witnesses concede would have been proper, and ought to have been done.

In the examination of this question of fact, it is unnecessary to analyze the evidence critically. The three great facts to which we have alluded, must control it. Both steamers and both tows were where the defendant placed them. The pilot of the Austin ” had no right to act upon an assumption which his past experience taught him was oftentimes fallacious, and" to act upon it when it was so dark (if the evidence of defense be true) that he could not ■see; and the pilot of the McDonald,” knowing that he had a hawser tow carrying no light, was negligent in not giving notice of that fact to the steamer he was passing. These facts the whole case establishes, and they demonstrate that the defendant has been guilty of negligence which caused the injury.

Having reached the conclusions that simply contributing negligence by the Parsons ” will not exempt the defendant from liability, and that indisputably the defendant’s negligence caused, in part "at least, the injury, it follows that the error of the judge before whom the cause was tried, in leaving to the jury to hud as a question of fact, which captain — that of the steamer or canal boat — controlled the latter, did not prejudice the defendant, because, upon the facts as claimed and proved by the defense, and the law applicable thereto, the plaintiff was entitled to recover. The judgment should, therefore, be affirmed.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.

       54 Barb., 559.

       19 N. Y., 341.

       38 N. Y., 260.

       20 N. Y., 492.

       45 N. Y., 628.

       32 N. Y, 597.

       11 Abb. (N. S.), 431.

       4 Transcript Appeals, 252.


source: Caselaw Access Project

author: Westbrook, J.:

license: Public Domain

text:
    MICHAEL MAHONEY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.*

      Bobbery in the first degree—what degree of violence necessary to constitute—bill of exceptions—what evidence not presented, by.

    Upon the trial of the plaintiff in error for robbery in the first degree, the complainant described the alleged robbery not only by words, but by acts, exhibiting to the jury the manner and mode of its commission. The judge charged that the evidence-of the complainant was sufficient, if believed by the jury, to justify the conviction of the prisoner. Upon a writ of error, held that, as the bill of exceptions did not presentía portion of the evidence, viz., the acts
    * This case was decided at the October Term, but the opinion was not filed with the clerk until December eleventh, too late to admit of its publication with the other cases decided at that Term.—[Rep. exhibited to the jury, the court must assume that such evidence was sufficient to authorize the charge.
    As the complainant was entering a horse-car in the city of New York, an accomplice of the prisoner crowded him against the door, whilst the prisoner threw his arms around the complainant’s neck, pulled him toward him, and removed a wallet from his pocket. Held, that the prisoner was properly convicted of robbery in the first degree.
    Writ of error to the Court of General Sessions, to review the ' conviction of the plaintiff in error of robbery in the first degree. The facts are stated in the opinion.

      John 0. Mott, for the plaintiff in error.

      Benjamin K. Phelps, for the defendants in error.
   Westbrook, J.:

On the 5th day of April, 1873, upon a somewhat rainy night, about the hour of ten and a half, one Peter B. Corson, who was on his way to his residence at No. 319 East Twentieth street, in the city of New York, from Barnum’s Museum, having hold of bis boy with one hand, and a umbrella in the other, was immediately, on stepping upon the platform of a Third Avenue car, robbed of his pocket-book and contents by the prisoner.

The questions which the counsel for the plaintiff in error presents are, was the crime committed that of which he was found guilty, to wit: Bobbery in the first degree, or was it simply larceny from the person ? The prisoner’s counsel upon the trial conceded “ that his client was guilty of the grand larceny, in having feloniously taken the complainant’s property from his possession, “but insisted” that it was unaccompanied by violence, within the meaning and comprehension of the statute.”

The recorder, after reading to the jury our statute which defines the crime of robbery in the first degree, left to them the question of the truth of the story of the complainant, and then added: “If you believe his statement in reference to the occurrence to be true, I charge you that the force used by the prisoner is that character of violence comprehended by the statute. The statute does not define the character or characters of the force or injury that must be used to constitute one of the elements of robbery in the first degree; it nowhere says that a person shall be knocked down and beaten senseless before the assailant can come within its comprehension ; but I charge you, if you believe Mr. Corson’s statement to be true, that the prisoner put his arm around his neck and violently and forcibly then and there jerked his head back, in the manner he described that he did, and forcibly and feloniously took from his person his pocketbook and money, that it was a robbery with felonious intent, and accompanied by violence.”

Various exceptions taken by the prisoner’s counsel to his charge, present this question: Conceding the truth of Mr. Corson’s evidence, is the prisoner guilty of the crime whereof he stands convicted ?

The narration of the occurrence by the complainant is as follows: “ I stepped on and made an effort to get into the car; there was a very large man stood right in the front door of the car, holding me back; that man (the prisoner) came and put his arm around my neck; pulled upon me; pulled up my head so [showing], and I had this arm — my left arm — kind of up, and then he pulled me two or three times ; said I, ‘what are 'you doing?’ he said, ‘I want to get that lady in ; ’ I saw no lady; well, perhaps, in less than one-tenth part of the time I have been stating it, he stepped off; I felt his hand come out of my pocket. Q. (By the court): What did he do to your neck, put your head up ? A. Tes, sir; and pulled back with his left arm. Q. (By the assistant district attorney): Where did he stand then, behind you ? A. He stood rather in front of me; that way [showing] ; I stood this way; he stood in front of me, reaching around; the other man .stood here, crowding me against the door.” The witness then described the contents of his pocketbook, and said that he felt for and missed it as soon as the prisoner withdrew his hand. On his cross-examination, the witness further testified: “ Q. How did he put his arm around your neck; was he pushing you one side ? A. ISTo; he was pulling me to him. Q. Where was he; in what position of the car; was he next to the driver, or where? A. He was just outside; on the edge like that, you know; I stood right here; he reached in and got his hand around my neck, and pulled me to him; pulling me out; pulling up in the front; up so, you know; I stood here. Q. You asked him what he was doing ? A. Yes, sir. Q. Hid he hurt you ? A. He did not hurt me particularly; he gave me a pretty good jerk.”

The foregoing is all the evidence given upon the trial, showing the violence used;. and our statute governing the case is as follows: “ Every person who shall be convicted of feloniously taking the personal property of another from his person, or in his presence, and against his will, by violence to his person, or by putting such person in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree.”

In discussing the point made by the prisoner’s counsel, that the recorder erred in instructing the jury that if they believed the truth of the evidence of the complainant, hereinbefore detailed, then the prisoner was guilty of the offense defined in the statute just quoted, it is apparent that 'it is liable to the fatal objection that the error does not affirmatively appear, because the bill of exceptions is so drawn as not to show to this court all the evidence of violence upon which the court and jury acted. It is an elementary principle, that, in the absence of all -the evidence given upon the trial, the appellate court will assume, when the question is upon the sufficiency of the evidence, that that which is not returned to it, warranted the ruling, and justified the verdict. Upon the trial of the indictment, not only did the complainant undertake to describe the alleged robbery by words, but by acts; he exhibiting to the jury, by physical action, the mode and manner thereof. That description which the court and jury by and before which the prisoner was tried, saw, and from seeing which a correct idea of the force and violence used in perpetrating the theft, can alone be formed, this court cannot see, and because it cannot, it is unable to say, and cannot say, that the recorder erred in his charge. On the contrary, upon the well-known rule to which we have alluded, that the tribunal whose proceeding is reviewed is presumed to have decided rightly, unless the error affirmatively appears, this court must assume that the representation by action of the force used in the perpetration of the crime, and which it is impossible for us to learn from the bill of exceptions, sufficiently proved to it that the prisoner used violence enough to bring him-within the statute. For this reason alone, the conviction should be affirmed.

But it also seems to "us that the violence which the words proved, was sufficient to prove the charge The amount and degree of violence which the accused must exert to bring him within the statute defining robbery, are not declared, and they manifestly could not be. The gravamen of the crime consists in taking “ the personal property of another from his person, or in his presence, and against his will, hy violence to his person, or by putting such person in fear of some immediate injury to his person.” In other words, the violence to the person, or the fear of immediate injury to the person, which, against the owners will, is sufficient to take his property, will, if the taking be felonious, render the taker amenable to the statute. It is not the extent and degree of force which make the crime, but the success thereof. In short, the force which is sufficient to take the property against the owner’s will, is all that the statutes contemplates; the distinction between robbery and larceny consists in this: In the latter, the act “ is accomplished secretly, or by surprise or fraud, while in the former the felonious taking must be accompanied by circumstances of violence, threats, or terror to the person despoiled.”

In the case before us, the accomplice of the prisoner crowds the complainant against the door of the car, whilst the accused throws his arms around the prosecutor’s neck, pulls him toward him, and then rifles his pocket. If this statement be true, it amply justified the charge; for, whether the force gave pain or not, it accomplished the theft, and by it, and it alone, Mr. Corson was feloniously deprived of his property against his will, though conscious of the act, and trying to prevent it.

The books contain many cases of convictions of the crime of robbery, where the force employed was evidently no greater than in this. With the citation of one very similar, we end the discussion. In Commonwealth v. Snelling, a special verdict found that the prisoner took the prosecutor by the cravat, with an intention to steal his watch, and also pressed his breast against the prosecutor’s, and held him against a wall, during which he took the prosecutor’s watch from his fob without his knowing it, and that the prosecutor had no idea that he meant to rob him; but was afraid that he meant to whip him. This was held to' be robbery.” The principle which the case just cited determines, is this:. That when force is employed to divert the owner’s attention, whilst he is unconsciously deprived of his property, the taker is guilty of robbery, though, by means of the force which distracts the attention, the larceny is artfully and unknown to the owner completed.

This is sound sense and good law. The force strategically employed so as to deceive an opposing commander as to the real object, whilst the latter is stealthily but successfully pursued, is that which wins the battle, though employed by indirection to accomplish the result. And the force which a thief uses to and upon the person of his victim, to consummate a robbery, if successful, is as much the successful force which robs when exerted to bewilder and confuse, as when used and exerted directly upon the main object. In either, the taking would be the result of force, though in one case indirectly applied, and in the other directly.

In the case before us, the most that could be said in favor of the prisoner, is, that his confederate and he used force to distract Mr. Corson’s attention whilst his pocket was picked. Unlike the Pennsylvania case, however, the hand which grasped the pocket-book was felt, and the theft discovered. The force, however, was in both cases, to give the most favorable construction to the prisoner of the evidence, used for the same purpose, and if thus employed in the one case it was robbery, it was equally so in the other.

The result of our examination is, that the conviction and judgment in this ease must be affirmed.

Davis, P. J., concurred.

Judgment and conviction affirmed.

       2 R. S., p. 697, § 55 (Eds. ed.).

       East’s Pleas of the Crown, 559.

       4 Binney, 379.

       Cited from 2 Wharton’s Criminal Law (7th ed.), § 1701.


text:
    THE PEOPLE ex rel. THE TENTH NATIONAL BANK OF THE CITY OF NEW YORK, Respondent, v. ANDREW H. GREEN, Comptroller, etc., Appellant.

      Certificate of commissioner of new county court-house—when admissions of agent not admissible against the principal—Mandamus—disputed questions arising in proceedings by—how det&rmined.

    This was an. application for a peremptory mandamus to compel the appellant to pay over to the relator the sum of $243,579.94, which amount the relator claimed to have advanced to the commissioners of the new county court-house, between the 29th day of April and the 3d day of September, 1871. In order to prove that such moneys had actually been advanced, a certificate to that effect, given by the said commissioners more than a month after the last payment had been made, was produced and read upon the motion. Upon an appeal from an order awarding a peremptory mandamus, held, that the certificate could not be received for the purpose of supporting the relator’s claim against the city and county. The admissions of an agent cannot be proven for the purpose of creating a liability against his principal, unless they are made so near the time of the transaction they relate to, as reasonably to be considered in some sense explanatory of it.

    Where the right to a mandamus depends upon disputed facts, the questions arising thereon should [not be decided on conflicting affidavits, but issues of fact should be joined and tried according to the course of the common law.

    Appeal from an order directing a peremptory mandamus to ■issue commanding the respondent to draw his warrant, in favor of the relator, for the sum of $44,000, with interest from July 2,1872.

      John K. Porter and John H. Strahan, for the appellant.

      John W. Edmonds, Henry E. JDrnies and Henry H. Anderson, for the respondent.

       Anderson v. Rome and Watertown R. R. Co., 54 N. Y., 334; Jex v. Board of Education, 8 Sup. Ct. R., 157.

        Ex peurte Rogers, 7 Cowen, 526; People v. Comrs. of Hudson, 7 Wend., 474; People v. Supervisors of Schuyler, 2 Abb. (N. S.), 78; People v. Green, 8 N. Y. S. C. R. (1 Hun), 1.

   Opinion by Daniels, J.

Davis, P. J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


text:
    ATLANTIC SAVINGS BANK v. SELAH HILER, Appellant, and J. P. FITCH, Respondent.

      Surplus moneys—Buie 77—what claims constitute liens under —lien of attorney — power of court to protect.

    The defendant Hiler, having recovered a judgment against one Stokes, commenced an action thereon, the defendant Fitch acting as his attorney, to have the same declared a lien on certain premises which, he alleged, were purchased with money belonging to Stokes, and recovered a judgment therein directing the sale of the said premises to satisfy his judgment. Subsequently the premises were sold under the foreclosure of a prior mortgage. Upon an application for the distribution of the surplus moneys, a reference was ordered to ascertain the amount due to Hiler and any other person which was a lien on such moneys.
    Upon the hearing before the referee, the defendant Fitch claimed a portion of the moneys by virtue of his lien, as attorney, upon the judgment recovered against Stokes. Hiler did not object to his appearance, but opposed the allowance of the amount claimed by him. His claim was allowed by the referee, and from the order confirming the report this appeal was taken; the appellant insisting that Fitch had no right to appear'before the referee, and that his claim could not be allowed under Rule 77. Held. (1), that the order of reference authorized the appearance of Fitch, and that the error, if any, could only be corrected by an appeal from that order ; (2), that as no such objection had been made before the referee, it could not now prevail; (8), that as the whole proceeding was had by consent, even if it was not good as a reference, it was good as an arbitration between Hiler and Fitch to settle the amount due to the latter out of the money held by the judgment of Hiler; (4), that the court will not permit a party to take money out of its control without compensation to the attorney by whom it was obtained, and that even if Fitch had no such lien as to authorize him to file a notice under Rule 77, the court had power, for the protection of its officers, to direct the payment of his claim out of moneys controlled by it.

      Appeal from an order of the Special Term confirming the report of a referee upon the distribution of the surplus moneys- arising from the sale of certain premises upon the foreclosure of a mortgage.

      Henry J. Schenclc, for the appellant.

      J. P. Fitch, for the respondent.
   Opinion.by Westbrook, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with costs.


text:
    UNION DIME SAVINGS INSTITUTION v. JOSEPH W. DURYEA, GIBBONS L. KELTS, and others, Appellants, and HENRY C. BISPHAM, Respondent.

      Surplus moneys—judgment “ secured on appeal ” — effect of restoration of lien of.

    On the 17th of March, 1878, Bispham recovered a judgment against Keech, which was, on the twenty-eighth of the following July, marked “ secured on appeal.” On the 39th of December, 1878, a new trial was granted, on the ground of newly discovered evidence, the judgment being ordered to stand as security. Between the twenty-eighth of July and the twenty-ninth of December, Keech, in order to secure a prior indebtedness, executed a mortgage on the premises in question to Kelts & Co., who, in consideration thereof, extended the time of payment of their account against Keech. On an application for the distribution of the surplus moneys arising upon the sale of the premises under a prior mortgage, held, that the mortgage of Kelts & Co. should be paid in preference to the judgment.
    Appeal from an order of the Special Term,' sustaining the exceptions of the respondent, Bispham, to the report of a referee, appointed in an application for the distribution of the surplus moneys arising on a sale upon the foreclosure of a mortgage.

      Alex. Ost/rander, for the appellants.

      Bewj. T. Kissam, for the respondent.
   Opinion by Barrett, J.

Davis, P. J., and Daniels, J., concurred.

Order reversed, with costs and disbursements; exceptions to the referee’s report overruled, and motion to confirm report granted, with ten dollars costs.


text:
    THE PEOPLE ex rel. J. B. ALEXANDER v. ELIZA H. ALEXANDER.

      Contempt — reference to take testimony as to — when may be oi'dered.

    Where proceedings are instituted under the statute in relation to criminal contempt (2 R. S., p. 278, § 12), and the party charged has appeared in pursuance of an order to show cause, and filed an affidavit, denying the contempt, and setting forth facts tending to sustain such denial, the court may, if it desire further proof as to the alleged contempt, send the matter to a referee to take testimony, - and defer further action until the coming in of his report.
    Where such proceedings are commenced by an order to show cause, under the provisions of the Revised Statutes, entitled “ Of proceedings as for contempts to enforce civil remedies, and to protect the rights of parties in civil actions ” (2 R.
    S., 534), an order of reference may be made without requiring interrogatories to be first filed.

      Pitt v. Damson (37 N. Y., 240) followed.
    Appeal, by Maria L. Newton, from an order made at Special Term, referring this matter to a referee, to take the evidence produced by the respective parties, upon the question whether Mrs.
    Newton had or had not been guilty of contempt, in aiding and abetting the violation of certain orders of this court, in relation to the custody of the children of the relator.

      Wheeler H. Peekham, for the appellant.
    -for the respondent.

      Watson v. Fitzsimmons, 5 Duer, 629.

   Opinion by Lawrence, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed with costs and disbursements.


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    PATRICK BURNS, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Wells in the aity of New York—repairs of—section 88, cha/pter 446, Lems of 1857.
    This action was brought to recover for services and materials furnished by the plaintiff in repairing wells and pumps in the city of New York, in pursuance of the directions of the deputy street commissioner, between January 1 and April 9,1870. Held (1), that the street commissioner had no authority to order the work to be done, the Croton aqueduct department having charge of all work relating to the repairs of wells and pumps; (2), that it nowhere appeared that the necessity Of the work had been certified to by the head of the department, as required by section 38, chapter 446, Laws of 1857, and section 6 of the City Ordinances of 1866,.page 98 ; (3), that the plaintiff was not entitled to recover.
    Appeal from a judgment, in favor of the plaintiff, entered upon the report of a referee.

      E. JDelafield Smith, for the appellant.

      Chas. H. Hatch, for the respondent.
   Opinion by Davis, P. J.

Daniels, J., concurred.

Judgment reversed and new trial granted, costs to abide the event.


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    In the Matter of the Petition of JOHN D. VOORHIS to Vacate an Assessment.

      Assessment in City of New York — when sel aside —fraud — how must he shown.

    Upon the application of the petitioner, an order was made at the Special Term vacating an assessment in the city of New York, on the ground that two lots liable to assessment had been excluded therefrom, and that such exclusion constituted “a fraud in law.” On appeal from this order held (1), that fraud in fact must he shown before an assessment could he set aside on that ground;' (2), that in the present case there was no direct proof of fraud, nor did the facts proved justify any such legal inference.

      Appeal from an order made at the Special Term vacating an assessment for paving Fifty-eighth street from Sixth to Ninth avenues.

      William Barnes, for the appellant.

      John S. Lawrence, for the respondent.

       Riches case, 12 Abb., 118.

   Opinion by Barrett, J.

Davis, P. J., and Daniels, J., concurred.

Order reversed with ten dollars costs and disbursements, and motion to vacate assessment denied, with ten dollars costs.


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    CHARLES McGUIRE, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.

      Mope—statement of person arrested with accused—when admissible against.

    The plaintiff in error was convicted of rape upon an indictment found against him and one Campbell. Upon the trial a witness was asked what Campbell said in the police court when the charge was made by the complainant. Held, that the question was a proper one.

    Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error of rape.

      William F. Howe, for the plaintiff in error.

      Benj. K. Phelps, for the defendants in error.

       Kelly v. The People, 55 N. Y., 565.

   Opinion by Barrett, J.

Davis, P. J., and Daniels, J., concurred.

Conviction and judgment affirmed.


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    THE PEOPLE ex rel. JAMES KEDIAN and another, Respondents, v. WILLIAM H. NEILSON, President of the Board of Education, and others, Appellants.

      Ti'ustees of the college of New York— Mils incurred by—audit of.

    The charter ef the city of New York confers no authority upon the auditor cf the said city to audit, or upon the comptroller to draw warrants for the payment of, bills for work performed in pursuance of the directions of the board of education, acting as trustees of the college of the city of New York.
    Appeal from an order, made at the Special Term, directing a mandamus to issue against the appellants.

      E. Delafield Smith, for the appellants.

      James W. Gerard, for the respondents.
   Opinion by Lawrence, J.

Davis, P. J., concurred; Daniels, J., concurred in the result.

Order affirmed as to the appellant, Neilson, and reversed as to Earle and Green, without costs, with leave to respondents to apply for a mandamus against the clerk of the board of education to compel him to sign the draft of the president of the board.


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    JOHN ROMAIN, as Continuing Partner, etc., Appellant, v. DAVID J. GARTH, Executor, etc., and others, Respondents.

      Judgment recovered by firm—release of, entered by one partner in clerk's office — cancellation of— Complaint— amendments to.

    This action was commenced by the plaintiff upon a judgment recovered by his firm, prior to its dissolution, against a firm of which Odell, the defendant’s testator, was a member. After the commencement of the action, the plaintiff discovered that one Schanck, a former partner of his, had given a release from the judgment to Odell, which had been delivered to the county clerk, who had marked the judgment, released as to him. The plaintiff then moved to have the entry in the clerk’s office canceled, and for leave to amend his complaint hy alleging that the release was given fraudulently and without authority, and by collusion between Odell and Schanck, and praying that the same might be declared null and void, both of which motions were denied. Held (1), that the order denying the motion to cancel the entry in the clerk’s office was correct; (2), that the plaintiff should be allowed to amend his complaint upon payment of all the costs of the action up to the time of this appeal.
    Appeal from an order made at the Special Term, denying a motion to cancel an entry that the judgment upon which this action is brought had been released, such entry having been made by the clerk of the county of New York on the docket of the judgment. And also an appeal from an order made at the Special Term denying a motion for leave to amend the complaint.

      A. O. Merritt, for the appellant.

      Saeketts ds Lang, for the respondents.
   Opinion by Lawrence, J.

Davis, P. J., and Daniels, J., concurred.

Order denying motion to cancel entry affirmed, with costs. Order denying motion to amend reversed, without costs, and leave granted to amend the complaint upon payment of all costs and disbursements up to the time of this appeal, together with the costs of the motion.


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    In the Matter of the Petition of HELEN E. LITTLE to Vacate an Assessment for Paving Twenty-first Street, between Fourth and Fifth Avenues, in the City of New York.

      Assessment — motion to meate must be made by owner—what proof not sufficient to establish ownership.

    Upon this application to vacate an assessment, the only proof as to the ownership of lots assessed was the following statement contained in the affidavit of the petitioner: That, “ at the time of the confirmation of the above named assessment, on the 3d of May, 1870, she was and still is held liable for the payment of the assessment imposed on lot mentioned and described in said petition by ward number 5,402.” Held, that this proof was inadequate to show any right, on the part of the petitioner, to institute the proceedings to vacate the assessment.

      Matter of Phillips (9 N. T. S. 0. Rep. [2 Hun], 212) followed.

      Appeal from an order made at the Special Term vacating an assessment.

      William Barnes, for the appellant.

      Neville <& Andrews, for the respondent.
   Opinions by Davis, P. J., and Lawbenoe, J.

Daniels, J., concurred with Davis, P. J.

Lawbenoe, J., dissented.

Order reversed, with ten dollars costs and disbursements, and petition denied, with ten dollars costs.


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    FREDERICK HUMPHREYS, Respondent, v. FRANCIS W. HURTT, Appellant.

      Contract—forfeiture for breach of—when injunction granted to prevent enforcement of.

    This action was brought to procure the correction of an alleged mistake in an agreement, entered into between the parties to this action, which contained a severe forfeiture in case of a default. '
    Upon the application of the plaintiff an order was made permitting him, during the pendency of this action, to pay into court all sums of money coming due under the agreement, and restraining the defendant from bringing suit upon such contract or from taking any steps to enforce any forfeiture occasioned by the failure of the plaintiff to comply with the terms of the agreement. Held, that the order was proper.
    Appeal from an order made at the Special Term continuing an injunction.

      doles Morris and Michael N. Cardoso, for the appellant.

      Ira Shafer and William Sutphen, for the respondent.
   Opinion by Davis, P. J.

Daniels, J., concurred.

Order affirmed, with ten 'dollars costs besides disbursements.


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    DANIEL TOFFEY and others, Respondents, v. STEPHEN T. WILLIAMS, Appellant.

      Order of wrest—when granted.

    Where two separate causes of action are joined in a complaint, an order of arrest will not lie unless there be a right of arrest upon the entire claim of the complaint.

    An order of arrest should not be granted in an action brought to recover a balance upon a running account, made up in great part of items entirely untainted with fraud.
    Appeal from an order made at the Special Term, denying a motion made by the defendant to vacate an order of arrest.

      Sha/w <& Jeroloman, for the appellant.

      Abraham & Merritt, for the respondents.

       Bowen v. True, 53 N. Y., 640; McGovern v. Payn, 32 Barb., 84.

   Opinion by Barrett, J.

Davis, P. J., and Daniels, J., concurred.

Order reversed with ten dollars costs and disbursements, and order of arrest vacated with ten dollars costs.


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    STEPHEN R. LESHER and others, Respondents, v. EGIDUS ROESSNER, Appellant.

      Judgment for costs — lien of attorney upon.

    Where a defendant recovers a judgment for the costs of the action” his attorney has alien thereon to the amount of the recovery, and the record of the judgment is notice to all the parties to the action of the existence of such lien.

      McGh’egor v. Comstock (28 N. Y., 237) followed.

      Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.

      Francis O. Devlin, for the appellant.

      G. J. G. Hall, for the respondents.
   Opinion by Lawbence, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


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    JOHN A. GODFREY, Respondent, v. WILLIAM MOSER, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought to recover for professional services, rendered by the plaintiff, an attorney, to the defendant. The General Term reversed the judgment on the ground that the findings of the referee as to the value of the services rendered by the plaintiff was not sustained by the evidence, and, also, because he had erred in allowing interest upon the amount found by him to be due; the account being unliquidated, and no balance having ever been agreed upon.

      Henry A. Gildersleeve, for the appellant.

      B. W. Huntington, for the respondent.

       Reid v. Rensselaer Glass Co., 3 Cow., 393; Van Beuren v. Van Gaasbeck, 4 id., 496; McMahon v. New York and Erie Railroad Co., 20 N. Y., 463.

   Opinion by Daniels, J.

Davis, P. J., concurred.

Judgment reversed and new trial ordered, costs to abide the event.


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    LAZARUS HALLGARTEN and others, Respondents, v. WILLIAM ECKERT and others, Appellants.
    Upon the trial of this action, brought upon a promissory note, the court directed a verdict for the plaintiff. Upon an appeal to the General Term, the judgment was reversed, on the ground that an exception contained in the case was well taken. Subsequently, a reargument was ordered to allow the respondent to apply to the judge before whom the action was tried, for a resettlement of the case. This was done, and the exception stricken out.  Upon this reargument, the General Term reversed the judgment, on the ground that the evidence in the case was such as to require its submission to the jury, and that the court erred in directing a verdict.

      Abel Crook, for the appellants.

      John K. Porter and Lewis Sanders, for the respondents.

       Hallgarten v. Eckert, 1 Hun, 117.

   Opinion by Davis, P. J.

Daniels, J., concurred.

Barrett, J., dissented.

Judgment reversed, and new trial ordered, costs to abide the event.


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    GILBERT J. DARLING, Respondent, v. SELAH S. BREWSTER and others, Appellants.
    Appeal from a judgment in favor of the plaintiff, ordered at the Special Term upon the coming in of a referee’s report, and from orders overruling exceptions to his report, and denying a motion to strike out portions of the judgment roll.
    This case has already been before the Court of Appeals,  where the judgment was reversed and a reference ordered to take and state the accounts of the parties to the action.

      Upon this appeal the General Term were of the opinion that the reference had been made in substantial conformity to the opinion of the Court of Appeals, and affirmed the judgment.

      Richard, B. Huntley, for the appellants.

      Scudder da Oarter, for the respondents.

       55 N. Y., 667.

   Opinion by Davis, P. J.

Daniels and Barrett, JJ., concurred.

Judgment and orders affirmed, with costs.


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    EMOTT SEWARD and another, Appellants, v. GEORGE TORRENCE and another, Respondents.
    Appeal from a judgment, in favor of the defendants, entered upon a verdict directed by the court.
    This action was brought upon a promissory note. Upon the trial evidence was given tending to show that the note had been paid. The General Term reversed the judgment on the ground that, as the answer did not aver that the note had been paid or settled, and as no motion was made to amend the pleadings -to conform to the proof, such defenses could not be regarded as properly before the court.

      R. O. Elliott, for the appellants.

      Robert W. Todd, for the respondents.

       Brazill v. Isham, 2 Kern., 9; O’Toole v. Garvin, 1 How., 95; Wright v. Delafield, 25 N. Y., 266.

   Opinion by Lawrence, J. ■

Davis, P. J., and Daniels, J., concurred.

Judgment reversed, and new trial ordered, -costs to abide the event.


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    CHARLES W. BARTLETT, Appellant, v. ALEXANDER McNEIL, Respondent.
    Appeal from two orders made at the Special Term, one allowing an amendment to the judgment roll in this action, and the other denying a motion to require the defendant to appear and be examined, under section 292 of the Code.
    The General Term held that the first order was proper, as it simply made the roll conform to the conceded tacts of the case, and that the second order was also correct, as-the judgment was not one in personam, and as it is only on such judgments that supplementary proceedings are authorized by the Code.

      John 11. Bergen, for the appellant.

      Beebe, Wilcox dc Hobbs, for the respondent.
   Opinion by Davis, P. J.

Daniels and Lawrence, JJ., concurred.

Both orders affirmed, with ten dollars costs on each appeal, together with disbursements.


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    In the Matter of the Opening of LEXINGTON AVENUE.
    Appeal from an order made at the Special Term, denying a motion to set aside an order confirming the report of the commissioners for opening Lexington avenue from Sixty-first street to the Harlem river.
    The General Term held that the order could only be set aside on the ground of fraud, and that as no fraud was proved in the case, the order should be affirmed.

      Ira D. Warren, for the appellant.

      E. Delafield Smith, for the respondent.

       Laws of 1813, ch. 86, §178; In the Matter of the Commissioners of Central Park, 41 How., 12; id., 50 N. Y., 493; In the Matter of Anthony Street in the city of New York, 20 Wend., 618, 620; Mayor v. Erben, 38 N. Y., 311; Matter of Commissioners of Central Park, 35 How., 256; Matter of Canal and Walker Streets, 2 Kern., 406.

   Opinion by Donohue, J.

Lawrence and Daniels, JJ., concurred.

Order affirmed.


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    HUGH GARDNER and OLIVER CHARLICK, Plaintiffs in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    ■ Writ of error to the Court of Oyer and Terminer, to review the conviction and sentence of the plaintiffs in error for a misdemeanor in unlawfully and willfully removing an inspector of election in the city of New York.
    The counsel for the plaintiffs in error admitted that the rulings of the court upon the trial were in conformity with the principles maintained in People v. Brooks

       and People v. Bogart,

       and conceded that the General Term should affirm the judgment below, so as to entitle the plaintiffs in error to a writ of error to the Court of Appeals.

      A. Oakey Hall, Wm. Fullerton and John A. Davenport, for the plaintiffs in error.

      Benj. jK. Phelps, for defendants in error.

       1 Den., 457.

       3 Parker, 143.

   Opinion by Daniels, J.

Davis, P. J., and Lawrence, J., concurred.

Judgment affirmed.


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    ALEXANDER H. SEAVER and another, Respondents, v. GEORGE J. MOORE, Appellant.
    Appeal from an order made at the Special Term denying a motion to vacate an order of arrest. The General Term were of the opinion, upon the affidavits in the case, that the defendant had 'disposed of his property with the intent to defraud his creditors, and affirmed the order of the court below.

      George 0. Emerson, for the appellant.

      Charles J. Guiteau, for the respondents.
   Opinion by Davis, P. J.

Daniels, J., concurred.

Order affirmed, with ten dollars costs.


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    CHARLES H. OSBORN, Respondent, v. THOMAS KEECH, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The General Term held that the evidence in the case was sufficient to sustain the findings of the referee, and affirmed the judgment.

      David McAdam, for the appellant.

      Oscar Smedberg and AT. B. Sanborn, for the respondent.
   Opinion by Lawrence, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


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    THOMAS C. CLARK, Appellant, v. JAMES DONALDSON, Respondent.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee. The General Term affirmed the judgment] on the ground that the evidence in the case was sufficient to' sustain the findings of the referee, and that the exceptions taken by the plaintiff to the admission ánd rejection of evidence, were not sustainable.

      •John A. Foster and W. P. Pickards, for the appellant.

      Francis Tillon, for the respondent.
   Opinion by Davis, P. J.

Daniels and Lawbenoe, JJ., concurred.

Judgment affirmed.


author: Bookes, P. J.: Countryman, J. :

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    MICHAEL O’ROURKE, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Excise Laws—chap. 628, Laws of 1857 ; chap. 856, Laws of 1869, and chap. 175, Lancs of 1870 — Sti'ong liquors — licenses for sale of— ale and heer.

    Under the provisions of the Excise Laws of this State, licenses to sell strong and spirituous liquors and wines (except ale and heer), to be drank on the premises of the licensee, can only be granted to an inn, tavern or hotel keeper.
    Licenses for the sale of ale and beer may be granted by the board of excise, in its discretion, to any person applying for the same, and no restriction is imposed by the law, as to the place where such liquors are to be drank.
    Upon the application of the plaintiff in error, who was not the keeper of an inn, tavern or hotel, the board of excise granted a license, authorizing him to “ sell and dispose of strong and spirituous liquors, and wines, ale and beer, in quantities less than five gallons,” at his saloon. The license did not, in terms, either authorize or forbid the drinking of the liquors on the premises. Held, that' although so much of the license as attempted to authorize the sale of intoxicating liquors (except ale and beer) was inoperative and void, yet it was valid as a license to sell ale and beer, and that such liquors might be drank on the premises.
    It is not necessary that the statute should, in express terms, declare the unauthorized sale of intoxicating drinks a misdemeanor; it is sufficient that the act charged in the indictment is declared to he an offense, and is made penal.
    The interpretation which renders a statute in operative cannot be admitted. It is an absurdity to suppose that after it is reduced to terms it means nothing.

      ' Writ of error to the Court of General Sessions of the county of Saratoga, to review the conviction of the plaintiff in error of the offense of selling intoxicating liquors without a license.

      P. H. Oowen, for the plaintiff in error.

      E. W. Paige, for the defendants in error.
   Bookes, P. J.:

The plaintiff in error,' O’Rourke, was indicted for unlawfully selling strong and spirituous liquors,, wines, ale and beer, in quantities less than five gallons, by retail, to be drank in his house. The proof was that he kept a saloon, and sold ale on draught to be drank on the premises. He was convicted on the indictment, and was sentenced by the court to pay a fine of fifty dollars, and to stand committed until the fine was paid. Thereupon he sued out a writ of error to this court.

By way of justification and defense, the plaintiff in error offered in evidence a license granted to him by the board of commissioners of excise in and for the village in which he conducted his business of saloon keeping, covering the time laid in the indictment for the commission of the offense, to wit: February, 1874; by which license he was authorized “ to sell and dispose of strong and spiritous liquors, wine, ale and leer, in quantities less than five gallons,” at his saloon. The license did not, in terms, allow the drinking of the liquors, wine,- ale and beer on the premises; nor did it declare that such license should not be deemed to authorize the same to be drank in the house.” The court held that such license afforded no justification or protection to the defendant, and excluded the evidence. The question is, therefore, whether this ruling was correct in law.

The examination of this case involves the construction of three legislative acts, now constituting the excise system of the State. The first was adopted in 1857; the second, amendatory thereof, passed in 1869; the third, after making some general provisions, adopted the act of 1857, in so far as its provisions were not inconsistent nor in conflict therewith. These three acts must be considered as one consolidated act, and all their provisions must be made to harmonize, so far as may be, in order to carry out the purpose the'legislature had in view in their enactment.

It may be well, first, to note the provisions of the Law of 1857, before it was amended by the act of 1869. The Law of 1857, as originally passed, provided for two kinds of licenses, one to be granted to keepers of inns, taverns or hotels; the other to persons denominated store-keepers.” The former were to be allowed to sell intoxicating drinks in quantities less than five gallons, to be drank on the premises. The latter were to be allowed to sell by small measure also, but not to be drank in the shop, house, outhouse, yard, or garden of the licensee. To these two classes of persons, and to none other, could licenses be granted under the original law. Then came the amendatory act of 1869, which in no way affected the subject as to inn, tavern, or hotel keepers, but authorized the licensing of persons, in the discretion of the commissioners of excise, to sell “ ale or beer,” without, however, making an expression on the subject whether such beverages might or might not be drank on the premises of the licensee. This section reads as follows: “ All the provisions of this act, as amended, shall be held to apply to the sale of ale or beer, except so much thereof as forbids the granting of licenses to any person, except to such persons as propose to keep an inn, tavern or hotel; and the commissioners of excise may, in their discretion, grant license for the sale of ale or beer for a sum not less than ten dollars to other than those who propose to keep an inn, tavern or hotel.” This amendment, as will be observed, provided for the licensing of a third class of persons; and thereafter, there were three classes of persons to whom licenses might be granted, to wit: inn, tavern, or hotel keepers, store-keepers, and such others as might be especially licensed to sell “ ale or beer.” Then came the act of 1870, which restated in general terms to whom licenses might thereafter be granted, and adopted the act of 1857 (as amended of course), wherein were prescribed the qualifications and restrictions attached to the power of the board, as to the granting of licenses; and also as to the right of sale by licensees. The act of 1870 omitted store-Jceepers, under that designation, but authorized the licensing of “ any person or persons” of good moral character, who should apply in due form, and be approved of by the board.

We must now recur to the provisions of the act of 1857, in order to determine the restrictions which attached to the authority of the board of excise to license; or, in other words, what rights of sale the board had the power by law to confer on licensees.

1st. As regards inn, tavern or hotel keepers, there is no question here raised. They might be licensed to sell intoxicating drinks by small measure to be drank on the premises, subject to certain conditions and restrictions particularly specified in the act. But, as above stated, no question is here raised affecting the rights of persons licensed to keep inns, taverns and hotels.

2d. So, too, the board of excise could grant license to any person or persons, in their discretion, to sell by small measure, but not to be drank on the premises of the licensee.

The qualifications of this class of licensees are declared in the act of 1870; and the fee for license to them should not be less than thirty, nor more than one hundred and fifty dollars. Under such license the licensee would be authorized to sell ale and beer, because within the signification of strong liquors, Besides, ale and beer are specifically designated in the act. The condition or limitation which the law attaches to this class, is, that the licensees shall not be allowed to sell, to be drank on the premises.. This restriction is imposed by the provisions of the Law of 1857. It is claimed (but as I think, without basis of support), that such restriction does not exist since the passage of the act of 1870; that no such limitation is declared in that act; and that the provisions of restriction contained in the Law of 1857, are in conflict therewith. The question then arises, are the provisions of the Law of 1857, which prohibit the granting of licenses for the sale of intoxicating drinks by small measure, to be drank on the premises, to others than inn, tavern, and hotel r keepers, and to persons especially licensed to sell ale and beer . only, in conflict or inconsistent with the general provision in ■ the Law of 1870? Let us consider this subject by bringing the two provisions together. The Law of 1870 provides that the board of excise “shall have power to grant licenses to any person or persons * * * permitting him and them to sell and dispose of, at any one named place * * * strong and spirituous liquors, wines, ale and beer in quantities less than five gallons at a time,” etc. This act also provides that the provisions of the act of 1857 shall remain in force, and be taken and construed as part thereof, except in so far as the same are inconsistent or in conflict therewith. The act of 1857 declares that licenses shall not be granted to any person to sell strong and spirituous liquors, to be drank on the premises of the person licensed, unless such person proposes to keep an inn, tavern or hotel, (The purport and effect of the amendatory act of 1869, as to ale and beer, will be hereafter separately considered.) blow, are these provisions of law, above cited, inconsistent or in conflict, to an extent that both cannot stand and have effect ? It has been deemed a wise policy during a long period in the history of our State, to prevent the sale of intoxicating drinks on the premises where sold, except under circumstances of restraint; hence two kinds of licenses were provided for: one of which, while it allowed a sale in quantities less than five gallons, yet did not allow it to be drank on the premises. This was deemed to be, and doubtless was, wholesome in its results; as then no encouragement was given t-y the congregating of dissipated and idle persons at the place of sale. The result was attained by a special provision in the law qualifying the general provision; and such qualifying provision was never supposed to be inoperative for repugnancy. The act of 1857, like all, or nearly all, preceding excise laws, recognized this policy. It authorized the licensing of inn, tavern, and hotel keepers, to sell strong and spirituous liquors to be drank on the premises of the licensee, and it also provided for the licensing of store-keepers,” who were authorized to sell in quantities less than five gallons, but not to be drank in their shops, houses, out-houses, yards or gardens. Then came the act of 1870, with the provision above cited, which extended the right of license to others besides store-keepers, to wit: “ To any person or persons * * * permitting him and them to sell and dispose of, at any one named place * * * strong and spirituous liquors, wines, ale and beer, in quantities less than five gallons at a time.” This provision does not abrogate the section of the act of 1857, which declares that licenses shall not be granted to others than inn, tavern and hotel keepers, to sell strong and spirituous liquors to be drank on the premises. These provisions are to be read and construed together. The section of the act of 1857 having been adopted by express terms into the act of 1870, qualifies and limits the provisions of the latter act, in so far as that act gives the right to the board to license persons, other than inn, tavern, and hotel keepers, to sell intoxicating drinks. It is often the case that one section or provision of a law operates as a qualification and restriction of another ; then the law remains in force as qualified and restricted. Thus the Law of 1857 prohibits the granting of licenses to persons, other than inn, tavern or hotel keepers, to sell in small measure to be drank on the premises of the licensee. The act of 1870 adopts this prohibition, and declares it operative. The Law of 1857 authorized the licensing of storekeepers, giving them also permission to sell by small measure; and the Law of 1870 extended this right to any person, leaving however the general provision in the act of 1857, in force, which prohibited all persons, except inn, tavern and hotel keepers, from selling by small measure to be drank on the premises of licensees. Thus read together, there is no conflict or inconsistency in these provisions ; and thus construed, they harmonize, and effect is given to the evident intent of the legislature.

It would seem that the Law of 1870 superseded the provision in the act of 1857, which authorized the licensing. of store-heepers by that designation: for, by the Law of 1870, permission is given to the board of excise to license arvy person or persons to sell intoxicating drinks -by small measure, in its discretion. In this law the right to license is not restricted to store-keepers, but extends to any person in the discretion of the board, and of course would embrace the former. Thus any person may be authorized* by license, in the discretion of the board, to sell by small measure; not however to be.drank on the premises, for, by another provision, none but inn,, tavern and hotel keepers could be licensed to do that. This prohibition remains in force unless repealed by implication. A repeal of a law by implication is never allowed, except from necessity: as when the two cannot stand together, the former is deemed to be repealed by the latter. Such is not this case. Kor is it reasonable to suppose that such result was intended; for if the restriction be repealed in this case, all restraint upon the licensing power to be exercised by boards of excise, is abrogated as regards the place where intoxicating drinks authorized by them to be sold, shall be drank ; and then, under a license granted in pursuance of section 4, of the act of 1870, the licensee might sell all kinds of intoxicating drinks by small measure, to be drank on his premises, with impunity. Such is not, in my judgment, the condition of the laws of this State. When read and construed as one legislative act, the Law of 1857 and of 1870 are harmonious in this: That inn, tavern and hotel keepers ■ may be licensed to sell intoxicating drinks by small measure, to be drank on the premises; and any person or persons may also be licensed to sell by small measure, not to be drank on the premises. Against the licensing of any person or persons (except innkeepers) to sell intoxicating drinks by small measure to be drank on the premises, there is a general and complete prohibition. It.is as follows: Licenses shall not be granted to any person to sell strong and spirituous liquors and wines to be drank on the premises of the person licensed, unless such person proposes to keep an inn, tavern or hotel.” This provision is not repealed by express terms; nor is it abrogated by necessary implication. It therefore stands in full force as the law of this State. The construction above given harmonizes the various provisions of the Law of 1857 and of 1870, secures wholesome police regulations, and sustains the general moral purpose sought to be attained by a useful and sound system of excise, applicable to the promiscuous sale of intoxicating drinks.

Particular note has not been above taken of the Law of 1869, which will now receive attention.

3d. There is also another class of licensees : persons who may be ’ licensed to sell “ ale or beer ” under the Law of 1869, amendatory of the act of 1857. For license to sell such beverage only, the fee is in the discretion of the board, not however to be less than ten dollars. Can this class of licensees sell such beverages by small measure to be drank on the premises % The law does not give this right in express terms, but I am inclined to the opinion that it gives such right hy fair, if not by necessary implication. The law reads as follows : “ All the provisions of this act, as amended, shall be held to apply to the sale of ale or beer, except so much thereof as forbids the granting of license to any person, except to such persons as propose to keep an inn, tavern or hotel; and the commissioners of excise may, in their discretion, grant license for the sale of ale or beer for a sum not less than ten dollars to other than those who propose to keep an inn, tavern or hotel.” Now this law qualifies every section of the act of 1857, which, by express terms or by implication, forbids the granting of licenses to persons to sell ale or beer. Therefore, in every such section, there must be understood to be an exception, which will give this amendatory law due effect. Let us then insert such exception accordingly, and see then what the law is, as applicable to the power of the board of excise to grant licenses to sell ale and beer.

The first section which bears on this subject, in the act of 1857, is section 6. Insert the necessary exception, and this section will read as follows: Licenses shall not be granted to any person to sell strong and spirituous liquors and wines, except ale or beer, to be drank on the premises of the persons licensed,” etc.; and close the section with an express power to grant licenses to sell ale or beer to any person, in the discretion of the board. The next section requiring an exception, is section 11. With the exception inserted, it will read as follows: In all' licenses that may be 8 granted to sell strong or spirituous liquors or wines, in quantities less than five gallons (except to inn, tavern or hotel keepers, and except also to persons to sell ale or beer), there shall be inserted an express declaration, that such license shall not be deemed to authorize the sale of any strong or spirituous liquors or wine, to be drank in the house or shop of the person receiving such license, or in any out-house, yard or garden appertaining thereto, or connected therewith. With the proper exceptions inserted in the next section requiring it, being section 14, it will read thus: “ Whoever shall sell any strong or spirituous liquors or wines, except ale or beer, to be drank in his house or shop, * * * without having obtained a license therefor as an inn, tavern or hotel keeper, shall forfeit fifty dollars for each offense.”

Apply the amendatory Law of 1869 to these three sections of the act of 1857, in manner above stated, by inserting the proper exceptions therein to give the former law effect, and there will remain no provision forbidding the granting of licenses by the board of excise to any person in their discretion, to sell ale or beer to be drank on the premises of the licensee, nor any provision forbidding or making penal the selling of those, beverages by the person licensed, to be drank on the premises specified in his license.

Then why need any one take license at all to sell ale or beer ? The answer is, that'there is still a provisión of law which renders the selling thereof without license, penal. Section 13 declares that whoever shall sell apy strong or spirituous liquors ” [which terms embrace ale and beer] or wines, in quantities less than five gallons at a time without having a license therefor, granted as herein provided, shall forfeit fifty dollars for each offense.” This provision applies to the amendatory Law of 1869, which, while it removes all restriction upon the authority of the board of excise to grant licenses to any person in their discretion, to sell ale and beer in small quantities to be drank on the premises of the person licensed or elsewhere, yet, provides for the granting of a license to sell such beverage, and adopts the Law of 1857, which renders it penal to sell it without license. Therefore, no person without license can sell ale or beer, in quantities less than five gallons, with impunity. But having license to sell such beverage, as authorized to be granted by the amendatory Law of 1869, the licensee may sell it without any restriction as to the place where it is to be drank.

If the conclusions above declared be sound, there are, under the provisions of the excise laws of this State now in force, three classes of persons who may be licensed by the hoard of excise to sell intoxicating drinks, to wit: Inn, tavern and hotel keepers, who may, under proper license, sell in quantities less than five gallons, to be drank on the premises; (2), persons who may sell by small measure, not to be drank on the premises; and (3), persons who may sell “ ale or beer ” only, without restriction as to the place where the same may be drank.

In the ease at bar, no justification was offered for the sale proved against the plaintiff in error under an innkeeper’s license. He was not an ifinkeeper, nor did he attempt to justify the sale as such. Eor did his license, offered in evidence, afford him protection for the sale of strong and spirituous liquors (except ale and beer) to be drank either on or off his premises. It could not justify a sale by him (except of ale or beer) in quantities less than five gallons, to be drank on his premises, for the board of excise had no authority to grant such license to any others than to inn, tavern and hotel keepers, and to persons to sell ale and beer under the provisions of the act of 1869. And it did not justify a sale by him (except of ale and beer) by small measure to be drank elsewhere, because it did not contain the clause required to be inserted by section 11 of the act of 1857, without which the licensee would, in case of sale,- be amenable to section 13 of that act; which last mentioned section declares a penalty against persons who sell without license granted -as in that act provided. The license offered in ; evidence was of no force or effect whatever, except as to ale and beer. The question then is, whether it was effectual to protect the licensee for the sale of ale and beer on draught. If so, there being by law no restriction as to the place where it might be drank, the. sale ' proved against the plaintiff in error was justified by it. The Law of 1870 authorized an application for, and the granting of, a license to sell “ ale and beer.” Section 4 of the Law of 1869, fixed the terms. In this case the licensee applied for greater privileges, to wit: the right to sell generally, strong and spirituous liquors and wines, as well as ale and beer; and it seems the board of excise attempted to confer those greater rights. In this there was a failure. But I am unable to perceive any good reason why the license was not good to the extent the board had authority to license. It is plain that it was intended by the board to grant the privilege to the licensee to sell ale and beer. Such intent appears on the face of the license. It grants the right in express terms. • Strike therefrom all that is valueless in law, and the license is complete as a license to sell ale and beer. It does not follow that if inoperative in part, it is therefore void in toto. The board of excise intended to grant, and did in fact grant, the right to the licensee to sell ale and beer at his saloon. This the board might do by law. Whatever else was desired, or was attempted to be done beyond the power of the board to do, and in no way effecting what it might do, would ^not vitiate and render void that which was done by lawful authority.

The granting of the license was a judicial act. The judgment and discretion of the board were exercised with a view to meet the requirements of law applicable to the granting of a license to sell ale and beer. So the board adjudged in favor of the application under the provisions of law; and, according to its requirements, determined the character of the applicant, the fitness of the proposed place of sale, and the amount to be paid for the license.

I can perceive no reason why a license may not be so framed as to combine the right to a licensee, other than an innkeeper, to sell strong and spirituous liquors and wines by small measure, with the special right to sell ale and beer. If all the conditions and requirements of the law be satisfied, the applicant may, I think, be allowed to sell strong and spirituous liquors and wines to be drank off his premises, and ale and beer to be drank thereon. Both privileges may be granted to the same person, to be exercised at one and the same place.

If so, why may not the board, observing all requisite formalities, combine both in one license? I can see no good reason why this may not be done. This subject of inquiry is not, however, of any importance in this case. The questions here are, whether the board of excise had authority in law to grant licenses to persons, other than inn, tavern and hotel keepers, to sell ale and beer, in quantities less than five gallons to be drank on the premises'; and if so, then whether the plaintiff in error in this case held" such license at the time of the sale of ale proved against him. These questions must be answered in the affirmative. The license offered in evidence afforded a justification of the sale proved against the plaintiff in error, and its exclusion on the trial was erroneous.

There is no force in the suggestion that the statute does not, in express terms, declare the unauthorized sale of intoxicating drinks a misdemeanor, or declare it punishable as such. It is sufficient that the act charged in the indictment, is declared by law to be an offense, and is made penal. This subject is not open to discussion, having been elaborately considered and definitely settled

by the Court of Appeals. But the conclusions above stated, require that a new trial be granted.

Countryman, J. :

The important question in the case arises on the ruling of the court, rejecting the license offered in evidence, granting to the plaintiff leave to sell and dispose of * * ale and beer, in quantities less than five gallons, at his saloon.” The only sale proved on the trial to sustain the conviction, was of ale at the plaintiff’s saloon, which had been drank on his premises. The court held that no power existed to grant a license giving the plaintiff the right to sell ale and beer to be drank at his saloon, and that the license in question afforded him no protection. The precise point is therefore presented,' whether the board of excise had power, under the various statutes now in force regulating the sale of intoxicating liquors, to grant a license to a saloon keeper to sell ale and beer to be drank on his premises.

The act of 1857 gave the power to grant licenses to keepers of inns, taverns and hotels * * to sell strong and spirituous liquors and wines to be drank in their houses, respectively; and to store-keepers * * a license to sell such liquors and wines in quantities less than five gallons, but not to be drank in their shops.” etc. It then prohibited granting a license “ to any person to sell strong and spirituous liquors and wines to be drank on the premises of the person licensed, unless such person proposed to keep an inn, tavern or hotel.” It also required that “ in all licenses granted (excepting to inn, tavern or hotel keepers) to sell strong or spirituous liquors or wines, in quantities less than five gallons, there shall be inserted an express declaration that such license shall not be deemed to authorize the sale of any strong or spirituous liquor or wine, to be drank in the house or shop of the person receiving such license.” It further provided that “ such licenses ” [to others than hotel keepers] shall not be granted * * until such applicant shall have executed a bond * * with sufficient sureties * * conditioned that he will not. sell, or suffer to be sold, any strong' or spirituous liquors or wines to be drank in his shop or house * * and will not suffer ” the same to be drank there. By another provision, it was declared that whoever should sell any strong or spirituous liquors or wines to be drank in his house or shop, or should suffer or permit the same to be drank there without having obtained a license therefor as an inn, tavern or hotel keeper, should forfeit fifty dollars for each offense. It was subsequently determined in the Court of Appeals, that ale and beer were included in the terms “ strong and spirituous liquors,” as used in these provisions, and therefore came within the prohibition of the statute. And it was also judicially settled by the same high authority, that a .willful violation of any of these provisions constituted a criminal offense, for which the party may be indicted, convicted and punished. It is very clear that under these provisions, no valid license could have been granted to the defendant to sell ale or beer to be drank in his saloon, and his conviction, before the amendment of the statute, would have been unexceptionable.

It will be observed that under the act of 1857, there was full power to grant licenses to hotel keepers to sell strong and spirituous liquors, including ale and beer, to be drank on their premises, and full power to grant licenses to all other persons (possessing of course the statutory qualifications) to sell liquors, including ale and beer, by the measure, in quantities less than five gallons, with the simple condition annexed, that the liquors could not be drank at the place: of sale. The hotel keepers accordingly secured the monopoly, of selling liquor, including ale and beer, as a beverage. This condition of affairs caused loud complaints on the part of the keepers of saloons and boarding-houses, who made repeated efforts to induce the legislature to grant them the same privileges held by the keepers of hotels. The act of 1869 was finally passed in answer to these complaints and petitions, and was manifestly intended to enlarge the rights of the petitioners. It amended the act of 1857 in several particulars not material to our present purpose, and then specially provided as follows: “All the provisions of this act, as amended, shall be held .to apply to the sale of ale or beer, except so much thereof as forbids the granting of license to any person, except to such persons as propose to keep an inn, tavern or hotel; and the commissioners of excise may, in their discretion, grant license for the sale of ale or beer * * * to others than those who propose to keep an inn, tavern or hotel.” Notwithstanding the language of the. first clause in the sentence, taken alone, may seem to fail in giving full expression to the idea meant to be conveyed, the intention of the legislature is quite apparent when the entire section is read in connection with the various provisions to which it relates in the act of 1857. As the statutes are in pari materia, it is the duty of the court, in order to ascertain their meaning, to read and construe them together as one act. Thus read, there is no need of interpretation ; -the provisions are clear and consistent, and the sense is manifest. If we incorporate the two acts together, and read the original statute as amended, it will be as follows:'• “License should not be granted to any person to sell strong and spirituous liquors and wines (except ale and beer), to be drank on the premises of the person licensed, unless such person proposes to keep an inn, tavern or hotel; (and the commissioners of excise may, in their discretion, grant license for the sale of ale or beer * * * to others than those who propose to keep an inn, tavern or hotel ”).

But if the act of 1869 be regarded as equivocal or ambiguous, it is incumbent on the court, in searching for its proper interpretation, to refer to the state of the law upon the matter involved prior to its enactment; to consider the purpose .or object had in view in its adoption; and, if possible, to give it some practical effect. The interpretation which renders a statute inoperative cannot be admitted; it is an absurdity to suppose that after it is reduced to terms it means nothing.” This, however, is the necessary result of the construction adopted in the court below. As before remarked, the board of excise had full power under the act of. 1857 to grant, licenses to all persons, in their discretion, to sell liquors, including ale and beer, for any other purpose than to be drank on their premises; and unless the amendment of 1869 gave the right to sell ale and beer to be drank on the premises of the vendor, the sole object of the provision is frustrated, and the entire section is a nullity.

It is urged, however, that the amendment does not in terms confer the power to grant a license to sell ale and beer to others than hotel keepers, to be drank on their premises, and under sections 11, 12 and 14, of the original act, no such license could be granted; and it ife insisted that the letter of the new act may therefore be obeyed by granting license to sell ale and beer by the measure, and not as a beverage. Aside from the objection already noticed, that this construction would render the amendment wholly inoperative, it is a perfect answer that no affirmative leave or assertion of the right to sell by the drink, either in the statute or the license, was necessary. Prior to the act of 1869, a license to any other person than a hotel keeper, tó sell ale and beer to be drank on the premises, would have been void, because section 2 of the statute, in terms, limited the power to grant a license to such person to sell, “in quantities less than five gallons, but not to be drank in the house or shop ” of the licensee; and section 6 also expressly prohibited the granting such a license, “unless the person proposed to keep a hotel.” It was necessary, in order to prevent the liquor from being drank on the premises of the vendor after the sale, to limit in terms the rights of the parties by an affirmative declaration ,to that effect. But in the absence of any limitation or prohibition, a mere license to sell confers the right to drink or use the liquor on the premises, or at any place where the parties have a right to be. When, therefore, the amendment of 1869 removed the prohibition in regard to the sale of ale and beer, a mere license to sell those liquors ipso facto carried the right to allow it to be drank or used on the premises, in any manner agreeable to the parties in interest. But power was given by the amendment to grant a license which conferred on the licensee the right to sell ale and beer to be drank on his premises. This was the obvious intention of the act, as the entire section is devoted to the removal of the old prohibition against granting licenses to sell ale and beer to others than hotel keepers to be drank on their premises, and to the express affirmation of the power to issue such licenses, in the discretion of the board, to all other persons. It excepts in terms from any application to the sale of ale and beer as a beverage, so much of the prohibition contained in section 6, of the original statute, as forbids the granting a license to any person but the keeper of a hotel, and explicitly confers the identical power which had previously been prohibited, to wit: the right to grant such a license to all other persons. The prohibition removed, the power conferred to grant such a license, and a license issued in pursuance of the power, the conclusion is obvious that the sale could no longer constitute a criminal offense.

There is no difficulty in adjusting any apparent incongruity „ between sections 11, 12 and 14 of the act of 1857 and the amendment of 1869, as the special license to sell ale and beer given in the latter act, must be regarded as an additional exception to the provisions' of the former. But if the two statutes were inconsistent and irreconcilable, the former would yield to the latter as the latest expression of the legislative will; and all portions of the original statute which were repugnant to the new act, would be regarded as repealed. • It follows that full power was conferred by the amendment of 1869 upon the board of excise to grant the plaintiff a license to sell ale and beer to be drank in his saloon, and that the license offered in evidence on its face was valid, and a legal defense to the indictment. It is hardly necessary to add that the license would have afforded „no protection to the plaintiff for the sale of any other liquors than ale or beer to be drank on his premises. Indeed, prior to 1870, it would have been necessary to have obtained a special license to sell ale and beer, to have secured protection under the amendment of 1869, but since the act of 1870, the leave to sell ale and beer to be drank on the premises, may be included in the general license. There is no force in the objection that the license was unauthorized because there was no petition of freeholders, or compliance with the other requirements of section 6 of the act of 1857, in relation to hotel licenses; as they have no application to licenses of this character, although those provisions are doubtless still in force, and must be observed in all cases where the applicant for a license proposes to keep an inn, tavern or hotel.” It does not appear whether the plaintiff complied with all the provisions of the statute applicable to this case, and no question of this kind was raised on the trial. The evidence was rejected, and the case decided, on the broad ground that the license on its face was invalid and conferred no right on the plaintiff to sell ale and heer to be drank in his saloon. As this ruling was erroneous, the conviction and judgment must be reversed, and a new trial granted.

Present — Bocees, P. J., Landón and Countryman, JJ.

Judgment and conviction reversed, and new trial granted.

       Sec. 11, act of 1857.

       Sess. Laws 1857, chap. 628.

         Sess. Laws 1869, chap. 856.

       Sess. Laws 1870, chap. 175.

       Section 2.

       Act of 1857.

       Commissioners v. Taylor, 21 N. Y., 173.

         Section 6.

         Section 6.

         Section 2.

       Section 2.

       Spratt v. Huntington, 48 How., 97,101.

       See last clause of section 4 of act of 1869.

       Bollan v. The People, 17 N. Y., 516; Hill v. The People, 20 id, 363; Foote v. The People, manuscript opinion by Folger, J.

       Laws of 1857, ch. 628.

       Sec. 2.

       Sec. 6.

       Sec. 11.

       Sec. 12.

       Sec. 14.

       Commissioners of Excise v. Taylor, 21 N. Y., 173.

       Behan v. The People, 17 N. Y., 530; Morris v. The People, 2 Thomp. & Cook, 319.

       Laws of 1869, chapter 856.

       Section 4.

       Potter’s Dwarris on Statutes, 128.

       Laws of 1870, chap. 175.