The Albany Law Journal. county judge was to receive. In the counties. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions or other business matters Subscription price, Three Dollars per annum, in advance. Single number, Twenty-five Cents. there is a special county judge who is called upon to serve only when the regular judge is incapacitated. He gets $300 a year. Under the governor's bill the special county judge called upon to do all the work of the county judge would have been compelled to do it for $300 a year, and these judges were naturally not very well pleased with the prospect. We observe that the senate committee on the should be addressed to THE ALBANY LAW JOURNAL COMPANY.] judiciary has reported favorably the proposed constitutional amendment of Senator McCarren, providing for the election of three additional Supreme Court justices in the second judicial district. ALBANY, N. Y., FEBRUARY, 1902. Current Topics. action brought by J. Seaver Page, the court holds that the legislature has not attempted to interfere with the transaction of business on a holiday other than Sunday, except to the limit specified in the statutes, viz., by allowing payments of negotiable instruments maturing on a holiday to be made on the day following, and with respect to the transaction of business in public offices of the State and counties. Chief Judge Parker, who wrote the opinion, said: 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 weakness of a plan which contemplated taking county judges from the performance of the duties for which they were elected, and assigning them to duties in districts whose own electors ought to choose at the polls such justices as may be required and such as they desire, did not strike the governor before he had gone so far as to seriously recommend it to the consideration of the legislature. How the governor's pet plan might have worked, had it been put into practice, was pointed out by a correspondent of one of the New York papers. He called attention to the distinction of Hamilton county, which is that there is not a lawyer in it. The county judge is a lumberman, and the residents were beginning to wonder whether under the proposed bill he would have an opportunity to go to New York city as a Supreme Court justice and draw a salary of $17,500 a year for his valuable services. There was another serious objection to. the bill pointed out by the same correspondent. While it provided that the county judge who was called upon to do the duty of a Supreme Court justice should receive a Supreme Court justice's salary, nothing was said about the salary which the man who took the place of the VOL. 64.- No. 2. "The legal effect of the agreement between the plaintiff and the defendant was to require the defendant, if requested so to do by the plaintiff, on the 1st day of January, 1898, to take plaintiff's stock in the Hoffman Machine Company at the price named therein. The plaintiff failed to tender his stock and make the request on the day named, but did so on the third day of January. As the first day of January was a holiday and the second day came on Sunday, the plaintiff insists that his tender and request were in time. But the difficulty with his contention is that legal holidays have not been placed on the same basis as Sunday by the statute. Indeed, in only two respects has the legislature attempted to interfere with the customary course of business, whether public or private, on a holiday other than Sunday. The first act provides that a negotiable instrument maturing on a holiday is payable on the next secceeding business day (Laws 1887, chap. 289), and the second that holidays shall be considered as Sunday for all purposes whatsoever, as regards the transaction of business in the public offices of the State or of the counties of the State (Laws 1897, chap. 614, sec. 1). If the legislature had omitted the limitation of the preceding statute to the transaction of business in the public offices of the State or counties of the State, thus providing that holidays should be considered as Sunday for all purposes whatsoever, the plaintiff's contention would be well founded. But in the present state of the statutes we are of the opinion that upon holidays other than Sunday all transactions may be carried on as on any other day, with the exceptions as above noted. And we said, in effect, in Walton v. Stafford (162 N. Y. 558): "It is undoubtedly true that the state of the law on this subject is likely to prove embarrassing to many, such, for instance, as those who find themselves obliged to tender a considerable sum of money on a day which is just enough of a holiday to allow the banks to close, from which he must obtain the money to make a tender, but not enough of a holiday to avoid the necessity of a tender, if he would not breach his contract. But such faults, if faults they be, in our business law can be corrected only by the legislature. 66 The plaintiff's further contention is that he is entitled to recover because the defendant waived his right to object that such tender and demand was not made on the proper day, and in that respect the Appellate Division seems to have agreed with him. We are unable to concur in that view. The plaintiff's right to require the defendant to take and pay for his stock was lost when he allowed January I, 1898, to pass without tendering to him that stock and demanding the payment of the agreed price. Thereafter the contract was at an end and the situation was precisely the same as if there had never been one. Either party had a right, of course, to undertake negotiations to revive the old contract or make a new one, but such a purpose could only be accomplished by a meeting of minds in agreement as to what the new contract should be, whether on the basis of the old or on entirely different lines. Now, the parties did not come to any agreement and about this fact they do not differ. Two days after the contract had ceased to have life the plaintiff made a demand in writing and tendered the stock, but the defendant replied: 'You must give me a little time to consider it,' and the next day he returned the stock, as was his legal right. A little later the defendant offered to give the plaintiff his note for $2,500, as he explained, on the condition that the plaintiff would take the risk as to the rest of his investment, which he thought the stock might prove to be worth. The plaintiff did not accept this offer, and so their conferences ended without the making of a different agreement from the old or the renewing of its life, and in such case the plaintiff must fail to recover, because he has no contract to enforce. "The doctrine of waiver, often applied in cases of forfeiture, has no place in this discussion, for there was nothing to forfeit on January third, when the defendant tendered the stock. The contract upon which he was apparently relying was dead, and had been for two days, and whether he realized it or not, the plaintiff was, in fact, a suitor for the enjoyment of a second option. The defendant refused to accord it to him, and there the matter must end, for it was the defendant's legal right to refuse. "The judgment of the Appellate Division should be reversed, and the order of the Trial Term confirmed, with costs to abide event." Maurice Maeterlinck, the famous Belgian essayist and poet, contributes to the January number of the North American Review a characteristic paper on "The Mystery of Justice." Man is so constituted that, when he commits an act of injustice to achieve his purpose, he must always shatter the confidence he had in himself and his destiny; he has ceased to rely upon himself, and has summoned strange forces to his aid. Punishment follows in justice just because the entire moral being of man, his mind and his character are incapable of acting to the highest effect except in justice. But nature appears to be absolutely indifferent to our morality, and, indeed, would aid us as readily in an effort to destroy our neighbor as in an attempt to comfort him. Furthermore, morality does not appear to enter into certain actions which go to make history — a fact of which the race is becoming conscious, and of which recent events have furnished more than one illustration. So that, M. Maeterlinck observes, there is a contradiction between our morality and nature's mode of action. Is nature, then, immoral? And have not we a right to follow her in her acts of injustice? The following extract indicates the lines on which M. Maeterlinck's discussion of these questions proceeds: "Nature's mode of action is different from our own, but, I say it once more, we know nothing of what her reason may be for acting in that different manner; and we have no right to imitate what appear to use to be cruel and iniquitous actions so long as we have no precise knowledge of the profound and salutary reasons that may underlie them. What is the aim of Nature? Whither do the worlds tend that stretch across Eternity? Where does conscience begin, and, is its only form that which it assumes in ourselves? At what point do physical laws become moral laws? Is life unintelligent? Have we sounded all the depths of Nature, and is it only in 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 to her duration, her extent and her aim, even as our instinct of justice is proportioned to the duration and narrow circle of our own life. She may for which to repair; but we, with our few days before us, lack the quality to imitate what our eye cannot centuries commit a wrong that she has centuries in embrace, understand or follow." The death recently, of Joseph Hasbrouck, secretary, a director and one of the three managers of the Bancroft-Whitney Company, law publishers, of San Francisco, is deeply deplored throughout the length and breadth of the country. Born in Kingston, N. Y., in 1839, of sturdy Dutch ancestry, he went to California in 1867, and very soon thereafter formed a business connection with Mr. Sumner Whitney, the pioneer law-book seller of San Francisco. From a very small beginning, the business under Mr. Hasbrouck's untiring energy and remarkable aptitude steadily grew from the first. He found many of the thirtytwo volumes of California Reports out of print, and no plates of any of them. Purchasing copyrights and reprinting as necessary, he began a series of reports that has long been indispensable. Though not a lawyer himself, and not the author of any legal publications, he was nevertheless almost indispensable in the work of the firm. When the BancroftWhitney Company was organized Mr. Hasbrouck became its secretary and the managerin-chief of its editorial department. At an early date he induced Mr. A. C. Freeman to write national treatises, which at once took high rank. Had Mr. Hasbrouck been a lawyer, he undoubtedly would have made his mark in the profession; nevertheless, it has been said, and truly, that his work could not have been of greater value to the profession than his remarkable achievements as an encourager and He was inspirer of others. an incessant worker, and that work finally told upon his constitution so that though he had been frequently warned of the penalty he must pay, he was soo deeply engrossed in his work that The recent decision of Chancellor Pitney, of New Jersey in the case of the directors of the Middlesex County Bank of Perth Amboy, holding those directors responsible for the embezzlement of $219,000 by Cashier George M. Valentine, is worthy of mention as going a long way to protect the interests of depositors in banks. Valentine's peculations, it appeared, covered a period of not less than five years, during which time the board of directors met twice a week and gave the public to understand that everything connected with the management of the institution was directly under their close scrutiny and supervision and they even boasted of their conservatism in making loans and strict discipline of management. When the crash came there was an expose. It was found that not even the simplest and most obvious precautions were taken to check the accounts of the cashier and that their pretended examinations were mere farces. One year before the collapse of the bank the bank examiner called the attention of the directors, in writing, to the many discrepancies and the lax methods of the cashier, but even then they were not aroused but continued to let Valentine act as cashier, president and board of directors and audit his own accounts. When haled into court to answer for their little less than criminal neglect, the directors pleaded that they had thought their duties merely those warnings went unheeded. His domestic nominal and perfunctory. The role they sought to assume, that of confiding innocents was not successful. It is to be hoped that this decision will have a salutary effect in causing boards of directors under similar circumstances to be more vigilant and watchful life was very happy; he possessed a fine artistic taste and was especially fond of music; he was absolutely unselfish and seemed to have a passion for making others happy. The death of such a man is indeed to be deplored. A. B. B. NEW YORK STATE BAR ASSOCIATION. PROCEEDINGS OF THE TWENTY-FIFTH ANNUAL MEET- The twenty-fifth annual meeting of the New York State Bar Association' convened in the Common Council chamber in the city of Albany, January 21, with a goodly attendance of members from all parts of the State. The meeting was called to order in the common council chamber in the City Hall Tuesday morning at eleven o'clock. Prayer was offered by Rev. John R. Oliver, after which President Hornblower made a brief address, thanking the association for the honor conferred upon him and expressing hope that the proceedings of the twenty-fifth meeting would be instructive and profitable. The first part of the afternoon session was devoted to the reading of papers, after which the following business was transacted: It was resolved that the chair should appoint a committee of three, with the retiring president as chairman, to take charge of the recommendations contained in the president's annual address, which is printed below. The committee on law reform, through its chairman, J. Newton Fiero, declared that it had practically no report to make. During the past year the committee has attempted to induce the legislature to provide for the completion of the work of the statutory revision commission, but without success. will continue its labors in this direction. It It was resolved that the chair should appoint a special committee of one member from each judicial district to take charge of the recommendations made by Judge Dillon, in his speech at the celebration of John Marshall day last February, that a statute should be erected in the State capitol to the memory of the late Chancellor James Kent, one of the most tained in the paper of John DeWitt Peltz, printed below, be referred to the committee on law reform. The reading of the minutes of the last meeting was dispensed with, and about 100 nominations for membership were made, and, after being referred 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 and ordered placed on file, after which Mr. Hessberg, treasurer of the association, submitted his report, which showed that $4,745.66 was paid to him by the former treasurer and that he had received as dues the sum of $4,170.63, to which had been added the accrued interest, $118.20, making in all the sum of $9,029.49. From this amount he reported as having disbursed the sum of $5.007.14, which left in his hands as such treasurer, $4,022.35. The report was ordered filed. were The association elected to membership ex-County Judge John D. Lynch, of Rochester, and Mr. M. C. Cox, of Paris, and elected former Chief Justice Andrews and Associate Justice Finch, of the Court of Appeals, to honorary membership. When it came time for the election of officers and committees for the ensuing year, President Hornblower expressed thanks for the courtesy of the association in offering him the re-election, which he felt obliged to decline. The secretary was then directed to cast one ballot for the following names Reports were received from standing committees, which were filed, and several resolutions adopted, among which was one offered by E. G. presented by the nominating committee: Whitaker, which reads as follows: "Resolved, That the New York State Bar Association disapprove of the proposed amendment to the Constitution authorizing the governor to appoint county judges to hold terms of the Supreme Court in the First and Second judicial districts." Another thanked the Bar Association of New York city for co-operation in making arrangements for John Marshall day. Another requesting the several county bar associations to enforce the law relative to registration of attorneys. OFFICERS AND COMMITTEES. President John G. Milburn, of Buffalo. Vice-Presidents - First district, Albert Stickney; Secretary Frederick E. Wadhams, of Albany. A communication was received from Henry Wy-❘ter, Selden Bacon, J. Van Vechten Olcott; Second nans Jessup, of New York, protesting against the proposed legislation for taxation of foreign corporations. A proposed amendment to the Constitution, providing that every alternate annual session of the association be held in some city in the State other than Albany, was voted upon and lost by a small margin. Several members interested in its adoption favored postponing action until the following day, when a larger representation would be present, but failed to gain their point. district, James P. Philip, Arthur S. Tompkins, Rus- 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. Wilkinson, James G. Graham; Third district, J. Newton Fiero, John J. Linson, Lewis E. Carr; Fourth district, Edward P. White, Louis M. Brown, Andrew J. Nellis; Fifth district, W. C. Prescott, A. H. Sawyer, H. J. Cookingham; Sixth district, J. P. Allds, Albert F. Gladding, Henry B. Coman; Seventh district, Irvin W. Near, Elbridge L. 'Adams, Nathaniel Foote; Eighth district, Adelbert Moot, Henry W. Hill, Maurice C. Spratt. Committee on Admissions - First district, Charles A. Gardiner, John D. Lindsay, John DeWitt Warner, George M. Wright; Second district, H. T. Dykman, C. W. H. Arnold, William P. Fiero, Irving Brown; Third district, Frederick J. Collier, A. Page Smith, G. D. B. Hasbrouck, Justin Kellogg; Fourth district, Louis M. King, J. Sanford Potter, Irving W. Wiswall, Thomas Cantwell; Fifth district, David Bearup, S. Mortimer Coon, Irving R. Devendorf, Adam J. Smith; Sixth district, E. H. Hanford, George B. Curtis, James W. Barnum, H. C. Mandeville; Seventh district, Frederick L. Manning, E. C. Aiken, Charles Van Voorhis, Sol Wile; Eighth district, Edward E. Coatsworth, Loran L. Lewis, Jr., William A. Douglas, Lester F. Stearns. Committee on Grievances First district, Job E. Hedges, Ernest Hall, James M. Gifford; Second district. William F. O'Neill, H. R. Barrett, Martin Heermance; Third district, Learned Hand, George H. Fitts, John W. Searing; Fourth district, Frederick G. Paddock, C. C. Van Kirk, Clarence W. Smith; Fifth district, A. B. Steele, John N. Carlisle, John D. Henderson; Sixth district, A. B. Packer, James T. Rogers, E. W. Cushman; Seventh district, John Van Sickle, H. R. Durfee, William B. Hale; Eighth district, J. H. Metcalf, Simon Fleischman, Clinton B. Gibbs. Committee on Legal Biography - First district, David Rumsey; Second district, J. Hervey Cook; Third district, Alphonso T. Clearwater; Fourth district, Charles M. Davison; Fifth district, William G. Tracey; Sixth district, Edwin H. Woodruff; Seventh district, John H. Hopkins; eighth district, William H. Hotchkiss. PRESIDENT'S ADDRESS. President Hornblower's annual address, which was read at the opening of the afternoon session, contained recommendations concerning the Court of Appeals. "The question arises," said he, “as to what remedy is to be applied to restore the jurisdiction of the Court of Appeals and to free it from the technical restrictions which now surround it. The remedy which I would propose is a very simple one. I proposed it in the constitutional commission of 1890 and did my best to secure its adoption, but without success. It is this: Amend the judiciary article of the Constitution so as to repeal the provision as to the effect of a unanimous affirmance of a finding of fact or of a verdict not directed by the court and so the Court of Appeals from any judgment of unanimous affirmance by the Appellate Division, unless the case be certified up by the Appellate Division, or by the Court of Appeals itself. This remedy seems at first very drastic, but, upon reflection, it will be seen to be far from an extreme provision. Any case involving questions of law or importance, or doubt, would be certified up freely by the Appellate Division, or could be certified up by the Court of Appeals itself. On the other hand, cases involving no questions of moment or doubt would stop at the Appellate Division as a matter of course, if the judgment below is unanimously affirmed. The Court of Appeals would thus be relieved of a vast amount of litigation, now going up as matter of right, involving exceptions to evidence, or exceptions to a verdict directed by the court, or exceptions to a nonsuit, where the questions involved are not of sufficient importance to justify a certification. This practice, too, would be in accord with the theory that the individual litigant is only entitled as of right, in any case, to one appeal, and that a second appeal should be allowed only in the interests of the State at large, or in the interests of harmonious and uniform jurisprudence. "This proposed remedy would also conform the practice in this State to the practice in the federal courts, as now established, which practice has worked and is working with entire satisfaction, so far as this feature of it is concerned, both to the bar and the bench. Practically, all cases at common law and in equity and in admiralty are now appealed, as of right, only to the Circuit Court of Appeals, corresponding to our Appellate Division. Any case, however, may be certified by the Circuit Court of Appeals to the Supreme Court of the United States, or may be brought up by that court on certiorari. The effect of this legislation has been to reduce the volume of business in the Supreme Court so that that court can conveniently handle it and can keep within a reasonable distance of working off its yearly calendar. On the other hand, cases involving questions of law, or questions on which the different Circuit Court of Appeals have differed are freely certified up or removed by certiorari to the Supreme Court. By the amendment I suggest the same result would, I think, be accomplished in our appellate tribunals; the Court of Appeals would be relieved of a vast volume of useless and needless appeals, while cases of interest and importance could be readily certified up by the court below, or by the Court of Appeals itself. When so certified up, the questions involved would be examinable and reviewable, as they used to be under the old practice. It would still remain true that questions of law could be reviewed by the Court of Appeals; but the question of law whether there was any evidence to support a finding, or a verdict, or a decision of a trial court or referee, would be open to review once more, as it used to be and as it now is not. "In the meantime, and until such constitutional |