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by the city of New York to any charitable, eleemosy- By authorizing the board to make rules the legislanary or reformatory institution, wholly or partly ture has not delegated to it any of its powers to under private control, for the care, support, secular enact or to repeal laws, and, doubtless, no such education, or maintenance of any child surrendered power was contemplated by the constitutional proto such institution, or committed to, received or vision to which we have referred. This is evident retained therein in accordance with section 664, from the concluding clause, which subjects the rules
except upon the certificate of the commis- of the board to the control of the legislature. sioner of public charities that such child has been The Constitution is the supreme law of the State, received and is retained by such institution pursuant and before it all statutes must fall that are in conio the rules and regulations established by the State Aict with its provisions. The first provision to Board of Charities."
which we have called attention preserves statutes The State board of charities, pursuant to the pro until amended or repealed by the legislature, which visions of the Constitution and of the statutes to are not inconsistent with its provisions. The next which we have called attention, established rules section to which we have referred gives to the legiswhich, so far as is material upon the question under lature the power to authorize counties, cities, towns consideration, are as follows:
and villages to make appropriations for charitable “1. The Reception of Inmates.— The following institutions wholly or partly under private control, classes of persons and no others may be received but prohibits the legislature from requiring such as public charges into charitable, eleemosynary, cor- appropriations. In other words, cities may be rectional and reformatory institutions wholly or authorized to make donations to charitable institupartly under private control, authorized by law to tions, but they must be left free to exercise their own receive payments from any county, city, town or judgment as to the amount and character of the village for the support, care and maintenance of charities they shall bestow; but no payments shall inmates.
No child between be made for any inmate of a charitable institution the ages of two and sixteen years, unless convicted under private control who is not received and reof crime, shall be received into any such institution tained therein pursuant to the rules established by as a public charge unless committed thereto or the State board of charities. Here we have an explaced therein by a court or magistrate having juris-press prohibition with reference to payments made diction, or by the superintendent of the poor of a for inmates of such institutions. Under the charter county, or overseer of the poor of a town, or com- of the asylum the city of New York was required to missioner or commissioners of charities, or other pay $110 per annum for each child surrendered to local officer or board legally exercising the powers its care by its parents, or committed to it by an of an overseer in the county, city, town or village officer authorized to commit children to such institusought to be charged with the support of such child tions. Under this statute there was no discretionary and authorized by law to commit children to such power vested in the common council or board of institution or to place them therein.”
supervisors. The payment was required to be made As we have see, Mamie Schellberger was placed in by the act of the legislature, and it was subject to no the New York Juvenile Asylum by her mother. She rules or regulations of any board; but the provisions had not been convicted of any crime and was not of the Constitution effected a change of the statutes committed by any court or magistrate, or by the in these particulars. The payment of $110 per commissioner of charities of the city of New York annum can no longer be required by the legislature; who legally exercised the powers of an overseer of it can only authorize the city to make it, leaving it the poor in counties. It is not alleged that this free to act through its constituted authority and child was a poor person or that her mother was to make the payment or not in its discretion. Not unable to support her, and thus far there has been only this, but it changes the provision of the statutes no adjudication that she was a proper public charge. ' by prohibiting payments, unless the conditions It will thus be seen that the claim of the asylum specified in the Constitution are complied with. rests upon the provision of its charter giving parents What are these conditions? They have been rethe right of surrendering their children to it, and the peated time and again in the statutes, as well as in provisions of the statute authorizing the city of New the Constitution. There was a purpose sought to York to pay it one hundred and ten dollars a year be accomplished; this purpose appears from the disfor each child so given to its charge and custody. cussions that were engaged in by the members of the
In answer to this the city invokes the rule estab- constitutional convention in which this provision lished by the State Board of Charities to which we was framed. Mr. Choate, the president of the conhave referred. The asylum contends that this rule vention, spoke at some length when this provision is illegal, unauthorized and void. If this rule is to was under consideration, and, among other things, be construed as effecting the repeal of the statute stated that in the city of New York, as it then we should hesitate about sustaining its validity. The existed before its enlargement, there were eighteen Constitution and the legislature, by the acts to which thousand children in these asylums supported by we have referred, have authorized the State Board of charity, many of whom were placed there without Charities to make rules, but such rules are subject commitment by parents who were perfectly able to to the control of the legislature by general laws. support them; and that these provisions had been framed for the purpose of preventing this abuse and Constitution operated presently from the time rules the wrongful appropriation of the public moneys. were established by the State board of charities; and It is thus apparent that the object and purpose of the in addition thereto, Martin, J., in delivering the provision was that there should be some means pro- opinion of the court, says: • This declaration of the vided for determining whether the inmates of these organic law is plain and unambiguous, and exasylums were properly a public charge. This duty pressly forbids the appropriation of money by the the Constitution delegated to the State board of counties and cities of the State to any such purpose, charities, but subject to legislative control. It im- unless the inmates are received and retained in the paired no legislative function; it merely involved an manner stated. Its manifest purpose is to make all inquiry as to the condition of the inmates in regard appropriations of public moneys by the local political to their financial responsibility or that of their divisions or municipalities of the State to instituparents or guardians. It doubtless was not deemed tions under private control, subject to the superpracticable for the board itself to investigate and vision and rules of the State board of charities." determine the financial condition of each inmate of There is nothing in these provisions which affects these asylums throughout the State, consequently it the rights of parents or guardians in surrendering was given power to adopt rules, and to specify offi- their children or wards to the custody of the asylum cers by whom these questions could readily be for support and education, if they so desire. The determined.
asylum may still receive such children and support It is not the rule that repeals or amends the them at the expense of their parents or guardians, statute; it is the Constitution itself that effects the or of such charitable fund as may be in its possession change. If the Constitution had provided that no for that purpose. They are only prohibited from payments should be made for the support of infants collecting pay from the city for the support of these in these asylums, except upon an order of the court children until the commissioner of charities of the adjudging that the person for whom payment is city, or of some court having jurisdiction, has sought was properly a public charge, it would hardly committed them to the asylum as proper subjects be contended that the court in determining the ques- of a public charge. This imposes no greater hardtion was in effect repealing the statute. To our ship on the asylum, and it protects the city from the minds no greater force can be given to the action frauds which may be practiced upon it by those who of the State board of charities. It has adopted rules, are able to support and educate their own children. as it was required to do by the provisions of the These views render it unnecessary at this time to Constitution and of the statutes, to which we have consider the effect of the various statutes to which referred. It is the Constitution that gives life and attention has been called. force to these rules, and it is the Constitution that
The order appealed from should be affirmed, with places limitations upon the payments that the costs. statutes had previously authorized and required.
PARKER, Ch. J., GRAY, O'Brien, VANN, CULLEN The Constitution itself does not provide the means and WERNER, JJ., concur. for the determination of the question as to whether
Order affirmed. the children in these institutions are properly a public charge; that function, as we have seen, devolves upon the State board of charities. Until,
Notes of Cases therefore, the State board of charities takes action in the matter and provides the means by adopting Husband and Wife.- In the case of Oppenheimer rules, the constitutional provision may not be self- v. Collins, decided by the Supreme Court of Wisexecuting; but as soon as the board takes action and consin (91 Northwestern, 690), it was held that a adopts the rules, then the Constitution acts presently : transfer by a husband to his wife of his interest in upon the existing statute and all payments thereafter his deceased father's estate, in consideration of her made must be in accordance with its provisions, discontinuing divorce proceedings, is not based on This was asserted by Chief Judge Andrews in the ja sufficient consideration as against the husband's case of People ex rel. Inebriates' Home for Kings creditors. The court said in part: “The decisions County v. Comptroller of the City of Brooklyn (152 of this court are substantially without conflict that N. Y., 399-410), who, after referring to this pro- a conveyance from husband to wife, in order to be vision of the Constitution, says: “We entertain no of any validity against his creditors, must not only doubt that this prohibition operated presently, that have been made in entire good faith, and without is to say, that from the time rules should be estab- intent to hinder, delay, or defraud them, but also lished by the State board regulating the reception must be upon a valuable consideration, paid out of and retention by charitable institutions, no payments her separate estate, or by a third person for her. would be justified for the care, support and main- In the present case the absence of separate estate tenance of inmates received or retained in contra- and the actual consideration for the transfer are left vention of the rules of the board."
in no doubt, for that consideration consisted solely So in the case of People ex rel. New York Insti- and exclusively in the withdrawal of Mrs. Collin's tution for the Blind v. Fitch (154 N. Y., 14-38), in action for divorce, or substantially in her consent which it was again asserted that this provision of the 'to continue the already existing marital relation be
tween herself and husband. For reasons so obvious of an issue of 3,000. The petitioner stated that her as hardly to require mention this cannot be accepted reason for the examination was that she wanted to as an equivalent for a valuable pecuniary considera- find out whether the affairs of the company had tion moving from his wife's separate estate. The been properly conducted during the year past. first of these reasons is that neither the law nor Being a stockholder, owning more than 6 per cent. public policy can favor or approve bargaining be- of the capital stock, she was entitled under Section tween husband and wife as to continuance or sever- 52 of the Stock Corporation Law, upon written reance of the marital status, in the existence of which quest of the company's treasurer, to a statement the public, as a third party, is interested, as well as embracing a particular account of all its assets and the two spouses. Another most cogent reason is liabilities. That remedy, however, the petitioner the utter inability to protect the rights of creditors did not invoke. Assuming, said Justice O'Brien, in the property of a husband if such contracts can for the appellate tribunal that the remedy under the be deemed a valid consideration."
Stock Corporation Law is not exclusive, and that in
a proper case the Supreme Court has the right to Irrevelant Remarks of Prosecuting Attorney.- In summing up before a jury on a prosecution for allegations of the petitioner, in the absence of facts
order an inspection, it would yet follow that the illegal sale of intoxicating liquors, counsel for the State remarked that this moonshine business must of were of doubtful legality and unauthorized, are
to support them, that the transactions complained be broken up, “Cayton's murder was caused by it." Counsel was not interfered with by the court, but be founded. - It is always an easy matter,” con
inere conclusions upon which judicial action cannot on objection by the defendant's counsel the prose- tinued Justice O'Brien, to find out some of the cuting attorney disclaimed any intention to accuse transactions of a going concern, and if by merely the prisoner with the murder. The remark was, stating these and characterizing them in the opinion however, repeated, and the Supreme Court of North of the stockholder as of doubtful legality, a manCarolina has on appeal ordered a reversal of the damus will issue entitling the stockholder to an defendant's conviction. The court said in part: unlimited examination of the books for a period of “ The motive of the solicitor in making the state
twelve years, then every barrier to an unlimited ment is not as important as its probable effect upon examination of the affairs of a corporation will be the jury. The best of motives sometimes lead to the most dangerous results, and if in the calmer removed, and the rule hereafter to be followed will
be to allow such examination as matter of course deliberation of an appellate tribunal we see that the and matter of right. We do not understand that defendant may have been prejudiced by the inad
this is the law or that our courts have gone to such vertent act of court or counsel, and thus deprived
an extent." of that impartial trial that is guaranteed to him by the law of the land, it is our duty to grant him a new trial. The State lays great stress upon those New Books and New Editions. cases which say that much must be left to the discretion of the judge below as to when and how he
Cyclopedia of Law and Procedure, Vol. 5. will correct the error, either by stopping the counsel or cautioning the jury; but in the case at bar the
With Volume V of their Cyclopedia of Law and court did neither. It is urged that the jury were Procedure, the American Law Book Company pretoo intelligent to be prejudiced by any such remark. sent to the consideration of the legal profession an This may be true, and yet it does not affect the innovation in law-book making which cannot but spirit of the law, which seeks by well-established appeal forcibly to every lawyer. The innovation rules to prevent the possibility of prejudice. An referred to consists in a small volume of annotaopposite course would do away with the entire law tions bringing down to date the articles published of evidence, and permit the introduction of all testi- in the first four volumes of the work. mony of every kind and description, competent or The importance to the profession of this event incompetent, relevant or irrelevant, that either side can hardly be exaggerated, for it means relief in may see fit to offer. In all such cases the intelli- large measure from the awful drudgery of finding gence of the jury must be guided by the wisdom and the law, and moreover insures a law book which, experience of the law."
instead of depreciating, will actually increase in
value year by year. The tools of no other trade Stockholder's Right to Examine Corporation's become so quickly superannuated and useless as Books.– The Appellate Division of the New York those of the lawyer. Text books which have stood Supreme Court, First Department, in
on his shelves for a few years have practically lost decision, puts a check on the prevalent idea that a their value, and he must constantly replace them stockholder is entitled for any purpose and to any with new ones, or at least with “new editions," if extent to examine the books of the corporation in he would keep himself even approximately abreast which he owns stocks. The case before the court of the law as enunciated by the courts; and at best was an appeal from an order granting an inspection he must supplement his text books by an individual of the books of the Colwell Lead Company to Ida research through digests and reports in order to Colwell, a stockholder owning only 180 shares out reach the latest decisions. It is the design of these
annotations to give the busy lawyer immediate' subject of appeals to the Court of Appeals. The access to all the cases down to date upon any given Bliss Edition has a clear, logical, systematic arrangesubject by reference to two volumes only — the one , ment of correct, live, and up to date head notes, in which the original article appears, and the volume under which are inserted more aid the most recent of annotations. Each year's annotations will em.' as well as valuable decisions, and matter under existbrace, in addition to the most recent cases, the ing law and practice. The old cases have been annotations of the preceding years, thus keeping stricken out or retained with skill, intelligence and the added cases always under one alphabetical judgment. The other edition has column after arrangement and in a single volume of annotations. column of dead or obsolete cases under such heads, If this design be fully carried out - and one is given or relating to such matters as “ Appeals from New no reason by this initial effort to suppose that it York City Court to Common Pleas," "Appeals will not
- then the practitioner will have good cause from Orders,” “ Questions of Practice or Appeals to cry nunc dimittis.
from Orders,” “Bills of Particulars," DemurAs to Volume V, it is perhaps sufficient to say rers,” “ Striking out Irrelevant Matters," “Amendthat it measures up to the standard set by its prede- ments," Orders Affecting Substantial Right,"
The publishers have continued their policy “ Inspection,” “Opening Defaults," " Interlocutory of engaging the services of prominent text writers Orders,” “ Orders Affecting Provisional Remedies," and specialists in the preparation of their articles. "Amount in Controversy," “ Jurisdiction of ComThus, the article “ Banks and Banking,” is written mon Pleas.” by Albert S. Bolles, author of several standard Under section 217, Jurisdiction of Supreme Court, works on the subject, and lecturer on banking in one refers to and quotes a repealed statute, Laws the University of Pennsylvania and Haverford Col- 1882, chap. 185. The Bliss Edition gives it corlege. “Bankruptcy" is written jointly by James W. rectly as it is, Laws 1882, chap. 185 (repealed), now Eaton, author of Eaton's Equity Jurisprudence,” Laws 1897, chap. 417, sec. 8, as amended by Laws and an authority on all matters relating to bank- 1902, chap. 150. ruptcy, and Frank B. Gilbert, whose work in com- Under section 519, Construction of Pleadings, the piling various branches of the New York statute Bliss Edition gives an excellent and valuable sumlaw is well known. The articles
and mary of latest cases; the other has nothing of the “ Bonds" are written by Joseph A. and Howard C. kind. Joyce, joint authors of “A Treatise on Electric Under section 791, Preferences, the Bliss Edition Law," the first named being also the author of a has the late important case, changing the practice, well known work on insurance.
of Morse v. Press Publishing Co. (71 App. Div. The volume covers the ground from“ Bail” to 351), which the other does not have; and so under “ Build,” and contains many excellent and valuable section 834, Physicians as Witnesses, the former has articles besides those mentioned. The typography the late important case of Greene v. Met. St. Ry. and presswork are up to the usual high standard of Co. (171 N. Y. 201), and Giffiths v. Same (id., 106); these publishers.
the other does not have either case.
Under section 844, Oaths Without the State, one IN RE Bliss' ANNOTATED Code AND STover's refers to a number of repealed and superseded staANNOTATED CODE.
tutes; the Bliss Edition correctly refers to the “ Real We have before us two late annotated editions of Property Law.” the Code of Civil Procedure, and from examination
Under section 981, Relating to Conduct of Trial, and comparison are so impressed with the superi- the Bliss Edition has by far the better and more ority and value of one over the other, that for the valuable collection of cases, with more recent debenefit of our readers and lawyers generally will cisions, under logical, systematic arrangement; give the reason for such conclusion.
besides we note it has the case of McDonald v. Met. We have taken at random or by chance a number St. Ry. Co. (167 N. Y. 66), one of the most imporof sections and subjects extending over the whole tant cases decided by the Court of Appeals in recent work, and most invariably without exception have years, affecting right of a plaintiff to have case subfound not only more cases of pertinent value, but mitted to a jury even although the trial judge be many much later decisions in the Bliss Edition than of the opinion that it should be set aside as against in the other. We might mention for example, sec- the weight of evidence; the other edition does not tion 14, relating to contempt; 66-67, attorneys; 388, have it, and in all respects it is inferior to the other. limitation; 481, complaint; 500, answer; 713, receiver; Under section 999, Motion for New Trial, on the 723, amendments; 803, inspection: 820, interpleader; 1 minutes, the Bliss Edition contains not only more 1022, concise decision; 1904, amount of recovery for and later cases, but under the head of “Injuries death by wrongful act, and a number of others from Negligence," contains the most useful and where the difference in treatment and citation is so valuable collection of cases relating to the amount marked as to strengthen the impression referred to. of damages, or excessive or not excessive verdicts, Especially have we been impressed in the following to be found anywhere. It is by far superior to the particulars, which stamp the character of the whole: other and of much more practical value.
Sections 190, 191 and 1324, relate to the important Under section 1338, Presumption as to Question
of fact, the Bliss Edition has more of the later providing for direct appeal to the Supreme Court. cases, and in other respects has been more carefully Under the prior law and practice, the position of and intelligently treated; for instance, in calling the the Appellate Term in respect to the City Court was attention to the amendment striking out the require the same as that occupied by the Court of Appeals ment of a review of the facts, and in distinguishing in regard to the Supreme Court, and the rules that and classifying the cases. Nothing of the kind governed the Court of Appeals in passing upon apappears in the other.
peals from the Supreme Court were applicable to Under Section 1759, Regulation of Divorce the matters coming before the Appellate Term Actions, the Bliss Edition contains not only the (Kreizer v. Allaire, 16 Misc. 6; Wright v. May, 29 more valuable summary, but has the late case of Misc. 301). By the amendment of 1902 to section Livingston v. Livingston, in the Appellate Division, 3190, title 3 of chapter 12 is now made applicable to holding a material amendment to be unconstitu- appeals from the City Court to the Supreme Court. tional. This the other does not have.
As to appeals from the Municipal Court, that subUnder section 1861, Action to Establish Will, the ject is now governed by the Municipal Court Act Bliss Edition contains the late and valuable case of of 1902, chapter 580, sections 310-326. Both the law Plant v. Harrison (36 Misc. 649), which the other and practice are materially changed by that act. does not have.
We observe that the Bliss Edition has a valuable Under section 24712, Compelling the Delivery of collection of cases and notes, including the subject Books to Public Officers, the Bliss Edition contains of appeals, with memoranda of the changes or refermore and later cases than the other, notably, Matter ences to the Municipal Court Act, under section of Brenner (170 N. Y. 185), and Matter of Guden 3218; the other has nothing of the kind. (171 N. Y. 529).
To further compare and test the claim of the Under section 2660, Who Entitled to Letters of latest cases we took all the cases published for a Administration, one quotes at length about five period extending over a month prior to May 1, 1902, pages of repealed or superseded statutes, relating to and found that the Bliss Edition had them all, while the public administrator in New York; the Bliss the other had none. Edition does not attempt to quote these statutes, The Bliss Edition has a much better and a more but gives reference correctly, and in examination of valuable appendix, preceded with a table of its conthe same it will be found that Laws 1898, chap. 230, tents, together with reference to pages where found, either rcpealed or superseded the matter above which the other does not have. It also contains a alluded to.
combined table index, showing at a glance the numUnder section 2729, Relating to Accounting in bers of all the sections relating to the same subSurrogates Courts, both editions insert the Transfer ject and a brief summary of the general statutes Tax Act at length, but the Bliss Edition does it cor- relating to the same subject, as materially affecting rectly as amended to and including 1902; the other practice or procedure. The other has nothing of the does not Section 228 of the Transfer Tax Act was kind, and this special distinguishing feature comamended by Laws 1902, chap. 101, and section 230, mends itself so strongly that it need not be dwelt appointment of appraisers, etc., Laws 1902, chap. upon. 496. These amendments are given in Bliss Code, We note also that a late amendment of Rule 13 but not in the other edition.
of the Court of Appeals is contained in the Bliss Section 3160, relating to the New York City Edition, but not in the other; and same also as to Court, was amended by Laws 1902, chap. 515, by Rule 5 of the Court of Claims. Furthermore, secadding subdivision 2, making section 1013 applic- tion 24 of the Statutory Construction Law, relating able. The Bliss Edition has this section as thus to holidays, was amended by Laws 1902, chap. 39. amended, and the other has not, although under The Bliss Edition gives it correctly as thus section 1013 it refers to the amendment.
amended; the other does not. Under sections 3305-3308, one refers to a number of repealed or superseded statutes. The Bliss The Administration of Dependencies. By Alpheus Edition has treated the matter more intelligently
H. Snow. New York: G. P. Putnam's Sons, 1902. and correctly by proper references and quotation at
For sale in Albany by A. H. Clapp. length in the Appendix, where will be found a useful The sole title of this work is “A Study of the table of fees in actual use in the sheriff's office in Evolution of the Federal Empire, with Special New York county.
Reference to American Colonial Problems.” It is There is a striking illustration of care, skill and a very important contribution to the great problems judgment in the treatment of notes under section of administration which were forced upon the gov1344, relating to appeals to the Appellate Term in ernment of the United States, when it acquired certhe First Department. The Bliss Edition very prop- tain insular territory from Spain. It is really a erly has but very few cases, while the other has careful study, in all its bearings, of the clause in many. The former is right in the omission or strik- the Constitution of the United States by which the ing out, because the law and practice are radically Congress is given power “to dispose of and make and materially changed by amendments of 1902, all needful rules and regulations respecting the terabolishing the General Term of the City Court and 'ritory or other property belonging to the United