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The Albany Law Journal. county judge was to receive.
. In the counties.
there is a special county judge who is called A Monthly Record of the Law and the Lawyers.
upon to serve only when the regular judge is Published by Tue ALBANY LAW JOURNAL COMPANY, Albany, N. Y. incapacitated. He gets $300 a year. Under
Contributions, items of news about courts, judges and lawyers' the governor's bill the special county judge queries or comments, criticisms on various law questions, addresses called upon to do all the work of the county on legal topics, or discussions on questions of timely interest, are solicited from members of the bar and those interested in legal judge would have been compelled to do it for proceedings.
$300 a year, and these judges were naturally [All communications intended for the Editor should be addressed not very well pleased with the prospect. simply to the Editor of THE ALBANY LAW JOURNAL. All letters
We observe that the senate committee on the relating to advertisements, subscriptions or other business matters should be addressed to The Albany Law JOURNAL Company.) judiciary has reported favorably the proposed
Subscription price, Three Dollars per annum, in advance. Single constitutional amendment of Senator McCarnumber, Twenty-five Cents.
ren, providing for the election of three addi
tional Supreme Court justices in the second ALBANY, N. Y., FEBRUARY, 1902.
judicial district. Current Lopics.
A decision recently rendered by the New Governor Odell seems to have early aban
York Court of Appeals serves to correct the doned his idea which he embodied in a special popular impression that agreements made on message to the legislature, of importing county legal holidays other than Sunday are never justices from the rural districts to the Supreme binding. In the case referred to, that of the Court bench of the cities. That he has in this appeal of Ralph L. Shainwald from reversal acted wisely, we have no manner of doubt. It of a judgment dismissing the complaint in an seems somewhat strange that the inherent
action brought by J. Seaver Page, the court weakness of a plan which contemplated taking holds that the legislature has not attempted to county judges from the performance of the interfere with the transaction of business on a duties for which they were elected, and assign- holiday other than Sunday, except to the limit ing them to duties in districts whose own elect- specified in the statutes, viz., by allowing payors ought to choose at the polls such justices as ments of negotiable instruments maturing on a may be required and such as they desire, did holiday to be made on the day following, and not strike the governor before he had gone so with respect to the transaction of business in far as to seriously recommend it to the con- public offices of the State and counties. Chief sideration of the legislature. How the gov- Judge Parker, who wrote the opinion, said: ernor's pet plan might have worked, had it
“The legal effect of the agreement between the been put into practice, was pointed out by a plaintiff and the defendant was to require the decorrespondent of one of the New York papers. fendant, if requested so to do by the plaintiff, on the He called attention to the distinction of Hamil- ist day of January, 1898, to take plaintiff's stock ton county, which is that there is not a lawyer in the Hoffman Machine Company at the price in it. The county judge is a lumberman, and named therein. The plaintiff failed to tender his
stock and make the request on the day named, but the residents were beginning to wonder
so on the third day of January. As the first whether under the proposed bill he would have day of January was a holiday and the second day an opportunity to go to New York city as a came on Sunday, the plaintiff insists that his tender Supreme Court justice and draw a salary of and request were in time. But the difficulty with his $17,500 a year for his valuable services. contention is that legal holidays have not been placed
on the same basis as Sunday by the statute. Indeed, There was another serious objection to. the
in only two respects has the legislature attempted bill pointed out by the same correspondent. to interfere with the customary course of business, While it provided that the county judge who whether public or private, on a holiday other than was called upon to do the duty of a Supreme Sunday. The first act provides that a negotiable inCourt justice should receive a Supreme Court strument maturing on a holiday is payable on the
next secceeding business day (Laws 1887, chap. 289), justice's salary, nothing was said about the and the second that holidays shall be considered as salary which the man who took the place of the Sunday for all purposes whatsoever, as regards the
Vol. 64.- No. 2.
transaction of business in the public offices of the defendant tendered the stock. The contract upon State or of the counties of the State (Laws 1897, which he was apparently relying was dead, and had chap. 614, sec. I). If the legislature had omitted been for two days, and whether he realized it or not, the limitation of the preceding statute to the trans- the plaintiff was, in fact, a suitor for the enjoyment action of business in the public offices of the State of a second option. The defendant refused to accord or counties of the State, thus providing that holidays it to him, and there the matter must end, for it was should be considered as Sunday for all 'purposes the defendant's legal right to refuse. whatsoever, the plaintiff's contention would be well “The judgment of the Appellate Division should founded. But in the present state of the statutes be reversed, and the order of the Trial Term conwe are of the opinion that upon holidays other than firmed, with costs to abide event.” Sunday all transactions may be carried on as on any other day, with the exceptions as above noted. And said, in effect, in Walton Staf
Maurice Maeterlinck, the famous Belgian ford (162 N. Y. 558): “It is undoubtedly true that the state of the law on this subject is likely to prove essayist and poet, contributes to the January embarrassing to many, such, for instance, as those number of the North American Review a charwho find themselves obliged to tender a considerable acteristic paper on “ The Mystery of Justice.” sum of money on a day which is just enough of a Man is so constituted that, when he commits holiday to allow the banks to close, from which he
an act of injustice to achieve his purpose, he must obtain the money to make a tender, but not enough of a holiday to avoid the necessity of a must always shatter the confidence he had in tender, if he would not breach his contract. But himself and his destiny; he has ceased to rely such faults, if faults they be, in our business law upon himself, and has summoned strange can be corrected only by the legislature.
forces to his aid. Punishment follows inThe plaintiff's further contention is that he is justice just because the entire moral being of entitled to recover because the defendant waived his right to object that such tender and demand was man, his mind and his character are incapable not made on the proper day, and in that respect of acting to the highest effect except in justice. the Appellate Division seems to have agreed with But nature appears to be absolutely indifferent him. We are unable to concur in that view. The to our morality, and, indeed, would aid us as plaintiff's right to require the defendant to take and readily in an effort to destroy our neighbor as pay for his stock was lost when he allowed January in an attempt to comfort him. Furthermore, 1, 1898, to pass without tendering to him that stock and demanding the payment of the agreed price. morality does not appear to enter into certain Thereafter the contract was at an end and the situa- actions which go to make history – a fact of tion was precisely the same as if there had never which the race is becoming conscious, and of been one. Either party had a right, of course, to which recent events have furnished more than undertake negotiations to revive the old contract
one illustration. So that, M. Maeterlinck obor make a new one, but such a purpose could only be accomplished by a meeting of minds in agreement serves, there is a contradiction between our as to what the new contract should be, whether on morality and nature's mode of action. Is the basis of the old or on entirely different lines. nature, then, immoral? And have not we a Now, the parties did not come to any agreement and right to follow her in her acts of injustice? about this fact they do not differ. Two days after The following extract indicates the lines on the contract had ceased to have life the plaintiff made a demand in writing and tendered the stock, which M. Maeterlinck's discussion of these but the defendant replied: 'You must give me a little questions proceeds: time to consider it,' and the next day he returned the “Nature's mode of action is different from our stock, as was his legal right. A little later the de- own, but, I say it once more, we know nothing of fendant offered to give the plaintiff his note for what her reason may be for acting in that different $2,500, as he explained, on the condition that the manner; and we have no right to imitate what appear plaintiff would take the risk as to the rest of his to use to be cruel and iniquitous actions so long as investment, which he thought the stock might prove we have no precise knowledge of the profound and to be worth. The plaintiff did not accept this offer, salutary reasons that may underlie them. What is and so their conferences ended without the making the aim of Nature? Whither do the worlds tend that of a different agreement from the old or the renew - stretch across Eternity? Where does conscience being of its life, and in such case the plaintiff must fail gin, and, is its only form that which it assumes in to recover, because he has no contract to enforce.
ourselves ? At what point do physical laws become "The doctrine of waiver, often applied in cases of moral laws? Is life unintelligent? Have forfeiture, has no place in this discussion, for there sounded all the depths of Nature, and is it only in was nothing to forfeit on January third, when the our cerebro-spinal system that she becomes mind?
Finally, what is justice when viewed from other of the institutions they serve. As another heights? Is the intention necessarily at its center, example of Jersey justice worthy of imitation, and can no regions exist where intention no longer the decision of Chancellor Pitney is deserving shall count? We should have to answer these questions, and many others, before we can decide whether of the widest prominence and the heartiest Nature is just in her dealings with masses whose commendation. vastness corresponds with her own. She disposes of a future, a space, whereof we have no idea, wherein there exists, it may be, a justice proportioned
The death recently, of Joseph Hasbrouck, to her duration, her extent and her aim, even as our secretary, a director and one of the three instinct of justice is proportioned to the duration managers of the Bancroft-Whitney Company, and narrow circle of our own life. She may for law publishers, of San Francisco, is deeply decenturies commit a wrong that she has centuries in which to repair ; but we, with our few days before
plored throughout the length and breadth of us, lack the quality to imitate what our eye cannot the country. Born in Kingston, N. Y., in 1839, embrace, understand or follow.”
of sturdy Dutch ancestry, he went to Cali
fornia in 1867, and very soon thereafter The recent decision of Chancellor Pitney, of formed a business connection with Mr. SumNew Jersey in the case of the directors of the ner Whitney, the pioneer law-book seller of Middlesex County Bank of Perth Amboy, San Francisco. From a very small beginning, holding those directors responsible for the the business under Mr. Hasbrouck's untiring embezzlement of $219,000 by Cashier George energy and remarkable aptitude steadily grew M. Valentine, is worthy of mention as going a from the first. He found many of the thirtylong way to protect the interests of depositors two volumes of California Reports out of in banks. Valentine's peculations, it appeared, print, and no plates of any of them. Purcovered a period of not less than five years, chasing copyrights and reprinting as necesduring which time the board of directors met sary, he began a series of reports that has long twice a week and gave the public to understand been indispensable. Though not a lawyer himthat everything connected with the manage- self, and not the author of any legal publicament of the institution was directly under their tions, he was nevertheless almost indispensable close scrutiny and supervision and they even in tlie work of the firm. When the Bancroftboasted of their conservatism in making loans Whitney Company was organized Mr. Hasand strict discipline of management. When brouck became its secretary and the managerthe crash came there was an expose. It was in-chief of its editorial department. At an early found that not even the simplest and most date he induced Mr. A. C. Freeman to write obvious precautions were taken to check the national treatises, which at once took high accounts of the cashier and that their pre- rank. Had NIr. Hasbrouck been a lawyer, he tended examinations were mere farces. One undoubtedly would have made his mark in the year before the collapse of the bank the bank profession; nevertheless, it has been said, and examiner called the attention of the directors, truly, that his work could not have been of in writing, to the many discrepancies and the greater value to the profession than his relax methods of the cashier, but even then they markable achievements as an encourager and were not aroused but continued to let Valen- inspirer of others.
an incessant tine act as cashier, president and board of worker, and that work finally told upon his directors and audit his own accounts. When constitution so that though he had been frehaled into court to answer for their little less quently warned of the penalty he must pay, he than criminal neglect, the directors pleaded was soo deeply engrossed in his work that that they had thought their duties merely those warnings went unheeded. His domestic nominal and perfunctory. The role they life was very happy; he possessed a fine artistic sought to assume, that of confiding innocents taste and was especially fond of music; he was was not successful. It is to be hoped that absolutely unselfish and seemed to have a pasthis decision will have a salutary effect in sion for making others happy. The death of causing boards of directors under similar cir- such a man is indeed to be deplored. cumstances to be more vigilant and watchful
A. B. B.
NEW YORK STATE BAR ASSOCIATION. The first part of the afternoon session was devoted
to the reading of papers, after which the following PROCEEDINGS OF THE TWENTY-FIFTH ANNUAL MEET
business was transacted :
It was resolved that the chair should appoint a ING, HELD IN ALBANY, JANUARY 21 AND 22.
committee of three, with the retiring president as
chairman, to take charge of the recommendations The twenty-fifth annual meeting of the New York contained in the president's annual address, which is State Bar Association' convened in the Common printed below. Council chamber in the city of Albany, January 21,
The committee on law reform, through its chairwith a goodly attendance of members from all parts man, J. Newton Fiero, declared that it had practically of the State.
no report to make. During the past year the comThe meeting was called to order in the common mittee has attempted to induce the legislature to council chamber in the City Hall Tuesday morning provide for the completion of the work of the statuat eleven o'clock. Prayer was offered by Rev. John tory revision commission, but without success. It R. Oliver, after which President Hornblower made will continue its labors in this direction. a brief address, thanking the association for the
It was resolved that the chair should appoint a honor conferred upon him and expressing hope that special committee of one member from each judicial the proceedings of the twenty-fifth meeting would be district to take charge of the recommendations made instructive and profitable.
by Judge Dillon, in his speech at the celebration of The reading of the minutes of the last meeting John Marshall day last February, that a statute was dispensed with, and about 100 nominations for should be erected in the State capitol to the memory membership were made, and, after being referred of the late Chancellor James Kent, one of the most to the committee on admissions, were reported favor- eminent jurists of the country. ably and the persons so reported on duly elected. The It was resolved that the recommendations conreport of the executive committee was read, received tained in the paper of John DeWitt Peltz, printed and ordered placed on file, after which Mr. Hessberg, below, be referred to the committee on law reform. treasurer of the association, submitted his report,
The association elected to membership ex-County which showed that $4,745.66 was paid to him by the Judge John D. Lynch, of Rochester, and Mr. M. C. former treasurer and that he had received as dues Cox, of Paris, and elected former Chief Justice the sum of $4,170.63, to which had been added the Andrews and Associate Justice Finch, of the Court accrued interest, $118.20, making in all the sum of of Appeals, to honorary membership. $9,029.49. From this amount he reported as having
When it came time for the election of officers and disbursed the sum of $5,007.14, which left in his committees for the ensuing year, President Hornhands as such treasurer, $4,022.35. The report was blower expressed thanks for the courtesy of the ordered filed.
association in offering him the re-election, which he Reports were received from standing committees, felt obliged to decline. The secretary was then diwhich were filed, and several resolutions rected to cast one ballot for the following names adopted, among which was one offered by E. G. presented by the nominating committee: Whitaker, which reads as follows:
OFFICERS AND COMMITTEES. “Resolved, That the New York State Bar Associa
President — John G. Milburn, of Buffalo. tion disapprove of the proposed amendment to the
Vice-Presidents — First district, Albert Stickney; Constitution authorizing the governor to appoint Second district, Isaac N. Mills; Third district, county judges to hold terms of the Supreme Court Franklin M. Danaher; Fourth district, H. V. Borst; in the First and Second judicial districts.”
Fifth district, Henry Purcell; Sixth district, Ernest Another thanked the Bar Association of New York W. Huffcut; Seventh district, George F. Yeoman; city for co-operation in making arrangements for Eighth district, John Cunneen. John Marshall day. Another requesting the several Secretary – Frederick E. Wadhams, of Albany. county bar associations to enforce the law relative Treasurer – Albert Hessberg, of Albany. to registration of attorneys.
Executive Committee – First District, Roger FosA communication was received from Henry Wy- ter, Selden Bacon, J. Van Vechten Olcott; Second nans Jessup, of New York, protesting against the district, James P. Philip, Arthur S. Tompkins, Rusproposed legislation for taxation of foreign corpo- sell Headley; Third district, Charles J. Buchanan, rations.
Howard Chipp, William P. Rudd; Fourth district, A proposed amendment to the Constitution, pro- Grenville F. Ingalsbe, Jeremiah Keck, Louis Hasviding that every alternate annual session of the brouck; Fifth district, Edwin Nottingham, Nevada association be held in some city in the State other N. Stranahan, Charles L. Knapp; Sixth district, than Albany, was voted upon and lost by a small Jared T. Newman, A. D. Wales, E. G. Herendeen; margin. Several members interested in its adoption Seventh district, Henry G. Danforth, John D. Teller, favored postponing action until the following day, John M1. Hastings; Eighth district, Martin Carey, when a larger representation would be present, but C. M. Bushnell, William B. Hoyt. failed to gain their point.
Committee on Law Reform - First district, Wil
liam N. Cohen, Charles E. Hughes, William E. Cur- as to provide that in no case shall an appeal lie to tis; Second district, C. A. Collin, Robert F. Wilkin- the Court of Appeals from any judgment of unanison, James G. Graham; Third district, J. Newton mous affirmance by the Appellate Division, unless Fiero, John J. Linson, Lewis E. Carr; Fourth dis- the case be certified up by the Appellate Division, or trict, Edward P. White, Louis M. Brown, Andrew J. by the Court of Appeals itself. This remedy seems Nellis; Fifth district, W. C. Prescott, A. H. Sawyer, at first very drastic, but, upon reflection, it will be H. J. Cookingham; Sixth district, J. P. Allds, Albert seen to be far from an extreme provision. Any case F. Gladding, Henry B. Coman; Seventh district, involving questions of law or importance, or doubt, Irvin W. Near, Elbridge L. 'Adams, Nathaniel Foote; would be certified up freely by the Appellate DiLighth district, Adelbert Moot, Henry W. Hill, vision, or could be certified up by the Court of ApMaurice C. Spratt.
peals itself. On the other hand, cases involving no Committee on Admissions — First district, Charles questions of moment or doubt would stop at the A. Gardiner, John D. Lindsay, John DeWitt Warner, Appellate Division as a matter of course, if the judgGeorge M. Wright; Second district, H. T. Dykman, ment below is unanimously affirmed. The Court of C. W. H. Arnold, William P. Fiero, Irving Brown; Appeals would thus be relieved of a vast amount of Third district, Frederick J. Collier, A. Page Smith, litigation, now going up as matter of right, involving G. D. B. Hasbrouck, Justin Kellogg; Fourth district, exceptions to evidence, or exceptions to a verdict Louis M. King, J. Sanford Potter, Irving W. Wis- directed by the court, or exceptions to a nonsuit, wall, Thomas Cantwell; Fifth district, David Bearup, where the questions involved are not of sufficient S. Mortimer Coon, Irving R. Devendorf, Adam J. importance to justify a certification. This practice, Smith; Sixth district, E. H. Hanford, George B. too, would be in accord with the theory that the Curtis, James W. Barnum, H. C. Mandeville; Sev- individual litigant is only entitled as of right, in any enth district, Frederick L. Manning, E. C. Aiken, case, to one appeal, and that a second appeal should Charles Van Voorhis, Sol Wile; Eighth district, be allowed only in the interests of the State at large, Edward E. Coatsworth, Loran L. Lewis, Jr., William or in the interests of harmonious and uniform jurisA. Douglas, Lester F. Stearns.
prudence. Committee on Grievances — First district, Job E. This proposed remedy would also conform the Hedges, Ernest Hall, James M. Gifford; Second dis- practice in this State to the practice in the federal trict, William F. O'Neill, H. R. Barrett, Martin courts, now established, which practice has Heermance; Third district, Learned Hand, George worked and is working with entire satisfaction, so H. Fitts, John W. Searing: Fourth district, Frederick far as this feature of it is concerned, both to the bar G. Paddock, C. C. Van Kirk, Clarence W. Smith; and the bench. Practically, all cases at common law Fifth district, A. B. Steele, John N. Carlisle, John D. and in equity and in admiralty are now appealed, as Henderson; Sixth district, A. B. Packer, James T. of right, only to the Circuit Court of Appeals, correRogers, E. W. Cushman; Seventh district, John Van sponding to our Appellate Division. Any case, howSickle, H. R. Durfee, William B. Hale; Eighth dis- ever, may be certified by the Circuit Court of Aptrict, J. H. Metcalf, Simon Fleischman, Clinton B. peals to the Supreme Court of the United States, or Gibbs.
may be brought up by that court on certiorari. The Committee on Legal Biography – First district, effect of this legislation has been to reduce the David Rumsey ; Second district, J. Hervey Cook; volume of business in the Supreme Court so that Third district, Alphonso T. Clearwater; Fourth dis- that court can conv
nveniently handle it and can keep trict, Charles M. Davison; Fifth district, William G. within a reasonable distance of working off its yearly Tracey; Sixth district, Edwin H. Woodruff; Seventh calendar. On the other hand, cases involving quesdistrict, John H. Hopkins ; eighth district, William tions of law, or questions on which the different CirH. Hotchkiss.
cuit Court of Appeals have differed are freely certiPRESIDENT'S ADDRESS.
fied up or removed by certiorari to the Supreme
Court. By the amendment I suggest the same result President Hornblower's annual address, which was would, I think, be accomplished in our appellate read at the opening of the afternoon session, con- tribunals; the Court of Appeals would be relieved tained recommendations concerning the Court of of a vast volume of useless and needless appeals, Appeals.
while cases of interest and importance could be 'The question arises,” said he, “as to what remedy readily certified up by the court below, or by the is to be applied to restore the jurisdiction of the Court of Appeals itself. When so certified up, the Court of Appeals and to free it from the technical questions involved would be examinable and reviewrestrictions which now surround it. The remedy able, as they used to be under the old practice. It which I would propose is a very simple one. I pro- would still remain true that questions of law could posed it in the constitutional commission of 1890 be reviewed by the Court of Appeals; but the quesand did my best to secure its adoption, but without tion of law whether there was any evidence to supsuccess. It is this: Amend the judiciary article of port a finding, or a verdict, or a decision of a trial the Constitution so as to repeal the provision as to court or referee, would be open to review once more, the effect of a unanimous affirmance of a finding of as it used to be and as it now is not. fact or of a verdict not directed by the court and so “In the meantime, and until such constitutional