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would have justified a decision by the Special Term In case the vendor in an executory contract has no in favor of the plaintiff. The statute, sec. 3, chap. authority to require the vendee to build, alter or 418, Laws of 1897, provides: “A contractor, sub- repair, and has no power to prevent him from doing contractor, laborer or materialman, who performs so, his interest cannot be charged with a mechanic's labor or furnishes materials for the improvement of lien for the erection, reparation or improvement of real property with the consent or at the request of a building, ordered by the vendee simply because he the owner thereof, or of his agent, contractor, or (the vendor), knowing that the work has to be done sub-contractor, shall have a lien for the principal and knowing that it is being done, does not try to and interest of the value, or the agreed price, of stop what he has no power to prevent." In Hanksuch labor or materials upon the real property im- inson v. Vantine (152 N. Y., 20), the lease provided proved or to be improved and upon such improve that the tenant should not make any alterations in ment, from the time of filing a notice of such lien the premises without the consent of the lessor, under as prescribed in this article.” The question to be penalty of forfeiture and damages. Subsequently, determined in this case is the meaning to be given the landlord released the tenant from his covenant to the term “consent." Doubtless, in a certain sense and agreed that he should have the right to make of the word, the appellant did consent to the per- alterations and improvements in the building. It formance of the work done on his property, for at was held that this did not render her estate liable the time of the execution of the lease he must have for improvements or alterations in the procurement known that the lessee intended to make erections of which she did not participate. It was there said thereon in order to use the premises for the pur- by Judge Martin: “ The simple fact that the appelposes for which they were let. But a similar situa- lant gave Riker (tenant) the abstract right to make tion is presented in the great majority of demises of alterations in her store at his own expense, of which real property. If there is a building on the premises consent the plaintiff had no knowledge, by no means the tenant is, in the absence of an express covenant' amounted to a consent by her that the plaintiff on the subject, required to keep the premises in should furnish labor or materials to be employed in ordinary repair (1 Taylor on Landlord and Tenant, making alterations upon her property, especially in sec. 43; Suydam v. Jackson, 54 N. Y., 450). It the absence of any notice or knowledge on her part seems that in this State a tenant may erect a new from which such consent could be implied.” Tested edifice on demised premises, provided it can be done by the principle of the cases cited, the evidence is without destroying or materially injuring other im- insufficient to show that the appellant consented to provements without the consent of the landlord or the performance by the plaintiff of the work for being subiect to the charge of waste (Winship v. which her lien was filed. There was nothing in the Pitts. 3 Paige. 250). Even in the case of existing lease itself that operated as such a consent. The structures, while the law precludes with some strict-case is entirely different from those in which the ness the tenant from making alterations, there is a tenant covenanted by the lease to erect buildings or large field in which he may, without the permission make improvements (Burkitt v. Harper, 79 N. Y., of the landlord, make improvements beneficial to his 273: Otis v. Dodd, 90 N. Y., 336; Jones v. Menke, use, unless they constitute a permanent injury to 168 N. Y., 61; Hilton & Dodge Lumber Co. v. Murthe estate. It could not have been intended by the ray, 47 App. Div., 289). In those cases the estate legislature (if it had the power) to enact that by the of the landlord was properly held liable because, mere demise of land, the property of the owner not only did he require the improvement to be made, should be subjected to the cost of structures or im- but the improvement inured to his benefit, either provements which the tenant would have the right because it reverted to him at the expiration of the to erect by virtue of his estate under the lease. demised term or because his rent proceeded from There is a marked distinction between the passive its use. Here the landlord was to receive a fixed acquiescence of an owner because he knows that rent. It is true the lessee covenanted not to use the the improvements are being made, improvements premises for other purposes than those prescribed in which in many cases he has no right to prevent, and the lease, but it was not required that they should his actual and express consent or requirement that be used for those purposes. All structures or the improvement shall be made. It is the latter that buildings erected by the lessee were to belong to constitutes the consent mentioned in the statute. and be removable by it. So long as the landlord To fall within that provision the owner must either received his rent it was immaterial to him whether be an affirmative factor in procuring the improve the premises lay idle and unimproved or not. It is ment to be made, or, having possession and control claimed that the appellant rendered his property of the premises, assent to the improvement in the liable because he signed an application to the local expectation that he will reap the benefit of it. It was authorities to have the premises connected with the well said by Justice Follett in Vrsseller v. Slater (25 city water supply. The permit from the city was in App. Div., 368; affirmed, 163 N. Y., 564): “The no way a pre-requisite to the construction of the term

with the consent of the owner.' as used in plumbing furnished hy the plaintiff, however necesthe statute. implies that the owner has power to sary it might have been in order to connect that give or withhold his consent in respect to the con- plumbing with the water supply. We presume that struction, alteration or reparation of the building. 'the appellant made the application because of some

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rule or requirement by the city officials that should the appellant presents simply the question of fact be made by the owner. We imagine that the tenant, whether the work was beneficial or not. Thereas an occupant of the land, could have compelled fore, a trial court might have found that the appelthe city to supply it with water on complying with lant being in control and possession of his land reasonable conditions and security for the payment knowingly suffered beneficial improvements to be of the water rates, even though the owner had refused made upon it. We think that these facts would, to join in the application. However this may be, under the authorities, render his property liable for the act of the appellant in thus aiding his tenant the work (Nellis v. Bellinger, 6 Hun, 560; Husted in procuring the supply of water did not operate to v. Mathes, 77 N. Y., 388; see also opinion of Follett, make him liable for the improvements made by the J., in Vosseller v. Slater, supra). tenant.

The order of the Appellate Division reversing the It appears by the opinion of the learned Appellate judgment and granting a new trial in favor of the Division that that court felt constrained by the defendant Friederich should be affirmed and judgauthority of National Wall Paper Company v. Sirement absolute rendered in that defendant's favor (163 N. Y., 122), to reverse the judgment of the against the appellant, with costs. Special Term. We think that the case is plainly

Haight, Martin, Vann and WERNER, JJ., concur; distinguishable from the one before us. There the Parker, Ch. J., and BARTLETT, J., dissent solely as work, which consisted of the decoration of the de- to the affirmance of the order in favor of the defendmised premises for the purpose of a hotel and

ant Friederich. restaurant, inured to the benefit of the landlord, who

Ordered accordingly. regained possession immediately after the work was completed. The landlord supervised and directed the performance of the work. His acts and conduct

Notes of Cases. were such as to authorize the finding by the trial court that he actually participated in procuring the Illegitimate Child Transfer of Custody by work to be done. This case is barren of the features Mother — Validity.— In Ousset v. Euvrard, decided alluded to. The appellant exercised no control or by the Court of Chancery of New Jersey, in May, supervision over the performance of plaintiff's con- 1902 (52 Atl. 1110), it was held that a transfer from tract. The most he did was to express satisfaction the mother of an illegitimate child to the putative at the manner in which the work was being per- father of all the mother's right of custody is valid formed. But this satisfaction or approval evidenced as against the mother, though it may be void as no intention to intervene in the conduct of the work, against the child, if the interests of the child so refor under the terms of the lease the work was in

quire. The court said in part: no way in his interest. We think there was no evi

Ordinarily, the custody of an illegitimate child dence in the case authorizing the reversal of the judgment of the Special Term in favor of the appel- is with its mother; she has the right to the custody lant as against the plaintiff, and that the order of of the child, and she is charged with the duty of its the Appellate Division should be reversed and the support. She can ordinarily assert her right of cusorder of the Special Term affirmed, with costs.

tody against the father, to take the child from the

father; and the court will aid her, and will recognize The facts relating to the claim of the respondent and vindicate her right as mother. The father has Friederich differ materially from those under which the plaintiff's work was rendered. Friederich began all which the law recognizes.

hardly any right at all of custody, if he has any at

His position is the performance of his contract on March fourteenth.

largely that of a stranger, and outsider, having no The lease from the appellant to the exhibition com

natural relation to the child or children. He may be pany bears date April 10

, but was not executed by chargeable for the support of the child, his illegitieither party till several days later. I think there is no evidence which would justify a finding that those proceedings are taken, and he is compelled to

mate offspring, under statutory proceedings: but if the exhibition company entered into possession of

furnish support for the child, it is on the theory that the premises as a tenant earlier than April tenth, or that before that time the appellant surrendered his the child otherwise would be a public charge; and control and possession of the property. It is suffi- the proceedings which would result in an order of cient, however, to say that in the view most favorable filiation uniformly leave the child in the custody of to the appellant the court might have found that the the mother, and the putative father is made liable to appellant was in possession and control at the time furnish support to the child while it is in the custody the respondent Friederich did his work; and, there of the mother." fore, for the disposition of this appeal, we must assume that the trial court would have so found. “Now, then, in this case, these people, who were We may concede that some of the work done by that living together unlawfully, whether their motives respondent did not create any permanent benefit to were good motives or neutral motives, or whatever the land, but a portion of it, consisting of removing the motives may have been, severed their relations stone and grading, was beneficial to the estate. Here and undertook to live apart. These children had to again the case in the aspect most favorable to be provided for. I know of no reason why, when


the mother and father of illegitimate children sepa- cannot even do this without violence to the facts, rate, as in obedience to the law of the State and of for there has cropped out in the evidence, as stated, the moral law they are bound to do, and they re- the information that the dead man put in money main bound to take care of the offspring of their for which no credit was given him in this proposed illicit cohabitation, I see no reason why the custody settlement. How much is not shown. of the children should not be awarded by contract “This is not a case where A's claim against B is to the one or the other of them. I see no reason considered and adjudged. It is an accounting in why the mother of the illegitimate children should equity, in which it is the duty of the chancellor to not say to the father, 'Take these children; you can as accurately ascertain and state B's account as A's. do better for them than I can.' It is true that if Nor is it possible in this class of cases to truly state nothing is done, if no arrangement is made, the A's claim, however clearly A's side may be proven, law gives the custody of the children to the mother, unless B's side is shown equally clearly. A settlethe main reason being that there is no father of an ment of a partnership necessarily means the stateillegitimate child; so the custody of the child is ment and adjustment of all the accounts of all its given, as a matter of natural right, to the mother. members. If appellee is injured in fact by this state I said that was the main reason. No, I will correct of affairs, it must be manifest that the cause of it is, that. There is a strong reason in addition; the not that the court adjudges the facts erroneously, mother has borne these children, and her relation but rather that, because of an absence of necessary to them is more tender than that of the man who facts, the court cannot adjudge at all. This absence procreated them and who is not their recognized of facts is due to the negligence or misfortune of father. In the absence of any agreement between the parties. The court will not take the hazard of the parties, there are plain reasons — - important rea- guessing at a solution, in order to relieve one of sons — which underlie the law which gives the cus- the parties. Such states of case in the courts have tody of the child to the mother. But I do not see given rise to the principle that, where the partners why an agreement made by the mother transferring fail to keep books or fail to keep such books as will her right of custody — not undertaking to transfer show the status of the firm's affairs, and they postabsolutely her duties as against the children, but pone a settlement till one of them dies, or till imtransferring her right of custody — to the father, portant witnesses die, or till necessary records are should not be upheld by the courts. In the absence lost or destroyed, equity will not interfere to relieve of any authority to the contrary, I shall hold that such misfortune. It will be assumed that the partit was competent for these people, in the situation ners have themselves settled their affairs, or that in which I have described, to enter into an agree- the affairs have so settled themselves as to be subment like that proved here, by which the mother stantially satisfactory to the partners (Bradford v. transferred the custody of the children to the puta- Ware's Ex'r, 6 Ky. Law Rep. 304; Hall v. Clagett, tive father."

48 Md. 223; Stiles' Adm'r v. Riggs, 10 Ky. Law Rep. 239; Hyatt v. Kennedy, 9 Ky. Law Rep. 860;

Robbins' Ex'r v. Robbins, Ky., i S. W. 152; WilSettlement of Partnership Accounts Failure to

son's Adm'r v. Potter, Ky., 42 S. W. 836). Keep Proper Books of Account.— In Garnett v. Wills, decided by the Court of Appeals of Kentucky become so altered that the court cannot now proceed

"By the laches of the plaintiff conditions have in September, 1902 (69 S. W. 695), it was held that

to a judgment in this case with that degree of where partners had been equally culpable in failing to keep proper books of account, and have post- observe. It will not grope its way in the dark,

accuracy which a court of conscience is bound to poned a settlement until one of them has died, or

risking the rights of the decedent's estate upon inuntil important witnesses have died, or until neces

complete evidence, and possibly sary records have been lost or destroyed, a court

conjecture.” of equity will not attempt to settle the partnership accounts. The court said in part: Now, what are we to do amidst such confusion

Late Decisions. and uncertainty? It may be that Wills has paid into the firm more than Garnett, and that Garnett drew EarningS OF ILLEGAL COMBINATION.— Profits held out more than Wills. But that fact is not shown by a third person for two corporations, which have in a suit for settlement, in the absence of books of agreed to contribute capital to carry on a joint busiaccount, by merely showing an aggregate of what ness under an assumed name, the net profits to be one partner paid in, and assuming, in the absence equally divided, has been hield by the Supreme Court of all evidence on the other side, the other partner of Ohio, in Geurinck v. Alcott (63 Northeastern being dead, that he paid in nothing. We are neces- Reporter, 714), to be the individual property of each sarily left largely to speculation even though ap- corporation, and that the money can be reached by pellee's proof were more convincing than it is — garnishment, even when it is the earnings of an for we must needs then speculate that the other illegal combination to regulate prices and control partner paid in nothing, and drew out and applied to the output of a certain commodity. The court holds his own use all that is charged against him. We'that two corporations cannot agree to form a part

erroneous em


nership, and that the earnings of the combination Right To Divert River.— The Supreme Court are simply credits in the hands of a third party of the United States, in an original proceeding bewhich are due to the respective corporations. tween the States of Kansas and Colorado (22

Supreme Court Reporter, 552), has decided that it CONFIDENTIAL COMMUNICATIONS.— The Court of will take cognizance of a controversy presented by Appeals of Colorado has decided in the case of a bill whose averments question the right of one Woodmen of the World v. Loeher (68 Pacific Re- ; State to wholly deprive the other of the benefit of porter, 136), that communications between a physi- water from a certain river which rises in the first

The State of cian or surgeon and his patient are not privileged State and flows through the second. unless the physician is one who has been licensed Kansas sets forth that the State of Colorado has to practice in that State. The decision is made under partially diverted the water from the Arkansas General Statutes, section 3649, providing that a

river, and that it is contemplating wholly diverting physician duly authorized to practice shall not, with

this stream, to the great injury of citizens of Kansas,

In out the consent of his patient, be examined as to

who have settled along the banks of the same. any information acquired in attending the patient.

order that the case may be fully before the court, it overrules 'the demurrer and grants the State of

Colorado leave to answer. DEADLY WEAPONS.—The Supreme Court of Mississippi, in the case of State v. Simms (31 Southern Reporter, 907), has judicially decided that a brick, BOYCOTT. An important decision of the Supreme when properly manipulated, is a deadly weapon, in Court of Missouri is that of Marx & Haas Clothing spite of the fact that it is not specifically mentioned Co. v. Watson (67 Southwestern Reporter, 391), in in the Code, making it an offense to carry concealed which the court holds that an injunction will not deadly weapons. The court holds further that if the issue to restrain the boycotting of the plaintiffs' instrument, whatever it is, kills, there is a strong | business. The United Garment Workers, presumption that it is deadly, and it is for the jury ployes of plaintiffs, instituted a boycott, and cirto finally determine this question upon the proof. culated petitions urging customers cease their

dealings with plaintiffs, unless the demands of the Anti-Trust Law.— The Supreme Court of Texas,

union were acceded to. An attempt was made to in the case entitled State v. Waters-Pierce Oil Co. enjoin them from continuing these acts, on the (67 Southwestern Reporter, 1051), acting upon the ground that they were abusing their privileges recent decision of the Supreme Court of the United under the Bill of Rights, guaranteeing to every States in the Connolly Case, heretofore noted in person freedom to say, write, or publish whatever this colunin, has held that the anti-trust law of he will upon any subject, being responsible for all Texas is unconstitutional, on the ground that it abuse of that liberty, and that plaintiffs were without attempts to exempt from its provisions live-stock adequate remedy at law to prevent this abuse, owing and products in the hands of the producers, and to the insolvency of the lefendants. also labor organizations formed for the purpose of maintaining a standard of wages.

The law is an- LIABILITY TELEGRAPH COMPANY Noxnounced as repugnant to the 14th amendment to DELIVERY OF MESSAGE.— The Supreme Court of the Constitution of the United States, relating to Texas has held, in the case of Western Union Telethe equal protection of the laws. The related case graph Co. v. Cobb (67 S. W. Rep. 87), that the of State v. Shippers' and Warehouse Co. delivery of a message by a telegraph company to the (67 Southwestern Reporter, 1049), decided at the clerk of the hotel at which the addressee lives is not same time, will also be found of interest.

a sufficient compliance with its contract to deliver,

as the mere relation of hotel keeper and boarder ACTION AGAINST LABOR UNION FOR PROCURING creates no authority in the former to receive teleDISCHARGE.-- The case of National Protective Asso- grams addressed to the latter, and that the hotel ciation of Steam Fitters and Helpers v. Cumming clerk has no implied authority from the guests of (63 N. W. Rep. 369) is an action brought by mem

the hotel to receive telegrams for them. bers of the Steam Fitters Union, who were discharged because members of a rival union refused Right OF STATE TO PREVENT DESTRUCTION to work with them, and notified their employer that RailwAY.-- An action by the State of Wisconsin a strike would be ordered unless such servants were to prevent the destruction, by a receiver appointed discharged, the intent being to secure the employ- by the federal court, of a railroad lying entirely ment only of the members of the rival union. The within the State, was considered by the Supreme court holds that no action will lie in such case, as Court of Michigan, upon the petition of the receiver an employer has the right to hire or discharge at to remove the proceedings to the federal court will, and the workman has the right to work or to (State v. Frost, 98 Northwestern Reporter, 915). refuse to work at will and no liability attaches Prior proceedings in this case have been noted in because the employer discharged simply at the re- , this column. The court holds that a proceeding by quest of the rival union.

the State, even in its sovereign capacity, to accom




plish a purpose other than the enforcement of its laissez faire contingent that the time has come for penal laws, is of a civil nature; also that it is suffi- 'action. Fair play and common honesty are outciently shown that the matter in dispute exceeds raged every day under its iniquitous provisions. $2,000; and, further, that a controversy in which is all the talk about giving it a further trial and questioned the power or duty of a federal receiver seeking to amend, rather than repeal it, is out of to perform acts expressly commanded is one aris- place, it seems to me. The law is utterly bad and ing under the Constitution of the United States; pernicious, both in principle and practice. It works and that for these three reasons the controversy innumerable hardships and injustices, giving opporshould be removed to the United States Circuit tunity to the circuitous and the crafty to continue Court.

their operations almost ad libitum, and it should be

repealed without any more delay than is necessary Illinois Anti-Trust Law.— The Anti-Trust Law to get it before the law-making body. There never of Illinois has recently been considered by the was any real need for its enactment, or demand Supreme Court of the United States in the case of for it, except a fictitous one fostered by those who Connolly v. Union Sewer Pipe Co. (22 Sup. Ct. sought to take advantage of its provisions to enrich Rep. 431) and held to be unconstitutional in that themselves, either by getting the best of their a discrimination is made in favor of agricultural creditors or through the big fees which its adminproducts or live stock in the hands of the producer istration affords. I hope your influential JOURNAL or raiser, which fact makes the act repugnant to will inaugurate a crusade against this pernicious the provisions of the fourteenth amendment to the legislation and continue it until the desired end is United States Constitution in respect to equal pro

reached. tection of the laws. This decision is consistent

HONESTY. with prior decisions of the Supreme Court of the New York City, October 23, 1902. Cnited States and of the State Supreme Courts in construing anti-trust laws which attempt to discriminate in favor of the farmer. The Texas Anti

Trust Law has recently been reported to have been
invalid in accordance with this decision of the How often I think of the dinners I relished
Supreme Court of the United States.

When I was a youngster, far back on the farin;

How often, by time and by distance embellished, LEGALITY GRADUATED LICENSE Tax.- The

The thoughts of those dinners my memory charm. license law of Pennsylvania was construed and sus- But Thanksgiving dinner, the best of all dinners, tained by the United States Supreme Court in the

Whose sumptuous bounty I sadly recall, case of Clark v. City of Titusville (22 Sup. Ct. Embraced every good thing for saints and for

sinners, Rep. 382). This law imposes a license tax upon merchants, by which they are divided into classes

The Thanksgiving turkey the best of them all. according to the amount of their sales, each class The Thanksgiving turkey, the fat, juicy turkey, including all whose sales range between a certain

The well-seasoned turkey was best of them all. minimum and maximum amount. The court holds The 'possum was sweet; the potatoes around it that this is not a violation of the equality clause of the fourteenth amendment to the United States The pies and the puddings were great, and I found it

Were simply delicious — the gravy was fine; Constitution, although the result is to make persons in different classes pay different rates, and also to I tasted the dainties — the cakes were the rarest ;

A source of much pleasure to sample the wine. make those in the same class pay at a different ratio

The custards the best that my mother could make ; if the amounts of their sales differ. The court holds But better than these, and I loved it the dearest, that the rule does not require exact equality of

Was Thanksgiving turkey, the brownest she'd taxation, but only that the law imposing it shall

bake. operate on all of a class alike. The tax is one on The Thanksgiving turkey, the fat, juicy turkey, the privilege of doing business, regulated by the

The well-seasoned turkey that kept me awake. amount of sales, and is not repugnant to the Constitution of the United States.

But, now that the days of my boyhood have ended,

My youthful career is a thing of the past,

My feet far away from the farm-house have wended Correspondence.

And landed me here in the city at last.

I'm seated to-day at boarding-house table,

Where hash is the principal food that we eat,
To the Editor of the ALBANY LAW JOURNAL: And mem'ries of boyhood seem more like a fable

The recent action of the Bankers' Association of Than something that once was reality sweet. the City of New York in calling for and urging the Oh. I yearn for the turkey, one slice of the turkey, speedy repeal of the present Bankruptcy Law, ought

The Thanksgiving turkey that nothing could beat. to convince the doubters, the undecided, and the Lawrence Porcher Hext, in Nov. Lippincott's.


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