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ceased and inflicted upon her bruises and contusions of which she languished and died. The second count charges that the beating was done in "a cruel and unusual manner." The only crime or misdemeanor in which defendant was engaged, at the time he struck the blow, was the assault and battery upon the person of the deceased which produced her death.

George Raines, for applt.

Peter H. Van Auken, for respt. Held, That the case is within the definition of manslaughter in the first degree in 2 R. S. 661, § 6. 19 Wend., 605; 10 N. Y., 161; 18 Hun, 489; 78 N. Y., 499.

was unconscious at the time, they were made ex necessitate by those who had attended her.

Conviction and judgment affirmed.

Opinion by Smith, P. J.; Hardin and Barker, JJ., concur.

MANDAMUS.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

The People ex rel. Thomas McManus v. Hubert O. Thompson, Commissioner of Public Works, et al.

Decided March 7, 1884.

People v. Butler, 3 Park Cr., The Common Council of New York City

331, criticised.

The case would have constituted murder at common law. 1 Russ. on Cr., 540; 1 East's Cr. Law, 256, §32; Foster's Cr. Law, 261, § 3.

The jury were properly instructed that even if the premature labor was the proximate cause of death, yet if defendant's violence brought on such labor he was to be regarded as having caused the death.

Moreland's testimony as to how far his wife was advanced in pregnancy was proper. He stated a fact from his own observation, as well as from what she told him.

The declarations made to the physician when called to attend. the deceased, to the effect that she had had spasms, were properly received. They were made to acquaint the physician with the condition of the patient and enable him to prescribe for her. As she

authorized the United States Illuminating Company to, and such company did erect a telegraph pole, for illuminating purposes, in front of relator's premises, under the direction of the respondents. By the Act under which said United States Illuminating Company was organized it was authorized to erect such poles in the cities and villages of the State with the consent of the municipal authorities. The erection of the pole was made without relator's consent and without awarding him compensation, and he applied in vain for a peremptory writ of mandamus to compel the respondents to remove the poles, on the ground that he was being deprived of property rights without compensation. Held, That the writ was properly denied. By such writ respondents cannot be required to retrace their steps and remove the poles under the circumstances. The relator's remedy is by action.

Appeal from order of Special Term, denying relator's motion for a peremptory mandamus to compel the respondents, as public officers of the City of New York, to remove the telegraph pole erected by the U. S. Illuminating Co.,

partly in front of his premises, No. 1303 Third avenue. The U. S. Illuminating Co. is a corporation organized under an Act of the Legislature, passed April 16th, 1848, entitled "An Act to authorize the formation of Gas Light Companies," and the several acts amendatory thereof. Chapter 512, Laws of 1879, authorized any such company to erect necessary poles over and under the streets, avenues and public parks in the towns, vil lages and cities of this State, with the consent of the municipal authorities thereof, and under such reasonable regulations as they may prescribe.

The Common Council, as appears by the papers, have consented to, and authorized the corporation to erect poles for the purposes mentioned under and according to the direction of the Commissioner of Public Works.

The Commissioner of Public Works has authorized the erection of the poles and directed the location at which and the manner in which such erection might be made.

It is claimed on the part of the relator that all those several authorizations and acts under which or by means of which the poles were erected are unconstitutional and void, because the right to erect a pole has been conferred by law and by municipal authority without provision for relator's compensation for the taking of part of his private property.

Ecclesine & Tomlinson, for re

lator.

Held, That the public authorities by statute, ordinance and express official direction, must be held to have authorized and legalized the erection of the pole so far as in their power.

Held further, That the relator cannot proceed by mandamus to compel the public authorities to retrace their action and take down the pole as a public or private nuisance, even assuming that the act of the Legislature and ordinance of the city is unconstitutional and void by reason of the omission to make provision for the relator's compensation for the taking of part of his private property.

The remedy of the relator, if he has any, is by action. The injury done is personal. The question of his private rights cannot be determined in this proceeding, inasmuch as the writ of mandamus was not intended to compel such officers to undo acts authorized by law because some private injury might result therefrom, for which the party injured can pursue a legal remedy.

Order affirmed, with $10 costs and disbursements, but without prejudice to any other remedy of the relator.

Opinion by Davis, Davis, P. P. J.; Brady and Daniels, JJ., concur.

WILLS.

N. Y. COURT OF APPEALS.

Woolley, exr., applt., v. Wool

Butler, Stillman & Hubbard, ley et al., respts.

for defts.

Decided Feb. 26, 1884.

The codicil in question had the usual attesta- ing by himself nearly three years;

tion clause. Both witnesses testified that they did not see testatrix sign it and that she did not acknowledge it; one stating that testatrix told her that she had a paper she wanted her to sign and that she did not know it was a will. Held, That a sufficient compliance with the requirements of the statute was not shown to warrant probate of the codicil.

The question involved in this appeal is whether a paper purporting to be a codicil to the will of W., plaintiff's testatrix, was executed as required by the statute. The evidence showed that beneath the signature to the codicil was an attestation clause reciting the execution of the codicil with the formalities required by the statute, and beneath that the signature of the two witnesses and the place of their residence. These persons were the only witnesses who testified as to the execution of the codicil. One of them, V., on his direct examination, testified that he knew the testatrix; that he did not see her sign the codicil and did not think she acknowledged to him that she had signed it. On cross-examination he swore that the signature at the end of the attestation clause was his; that he did not know whether that clause was there when he signed it, but presumed it was; that he at the house of the testatrix, in the room with her and the other witness, when he signed it; that he signed at the request of the testatrix, she handing him the paper and the pen; that H., the other witness, signed it in his presence; that he was a lawyer by profession, and had been practic

that he had studied law in the office of the executor's counsel about two years; that he knew it was not customary unless the instrument was a will to place the witness's residence after the name. H., the other witness, after testifying that she had resided in the family of the testatrix for a number of years and was her second cousin, was then asked, "did you see Mrs. Wooley sign that paper?" She answered, “No, I do not remember seeing her sign that paper; she did not in my presence acknowledge that instrument to be a codicil to her last will; I do not remember her saying anything about it; the signature at the bottom of the attestation clause, immediately under Mr. Vandewater's, is mine." She then testified that she remembered signing the paper and that the other witness was present and also signed it, no other person being present except the testatrix; that the testatrix had the paper first and that the witness signed it at her request. She further testified that she did not know anything about the codicil before that; that she put her residence after her name, and might have done so because the other witness told her to do so, or because he had put his residence; that the testatrix when she asked her to sign the paper said, "I have a paper here I want you to sign." The witness continued: "I did not know it was a will; I suppose I must have known that I was signing it as a witness; I know that Mrs. Woolley did not state it

was a codicil; the paper I signed was lying on the table when she asked me to sign it. This evidence was given within about a year after the execution of the alleged codicil. The instrument had not the appearance of having been drawn by a lawyer.

Benjamin

applt.

A paper not referred to in the judgment at Special Term, not in the judgment roll and which does not appear to have been before the General Term, has no proper place in the case on appeal to the Court of Appeals. By an interlocutory judgment rendered in the above entitled action April 12, 1879, it was referred to H. to ascertain the persons enW. Downing, for titled to share in the distribution of the deposit fund of the Nat'l L. Ins. Co. of N. Y., in the hands of the superintendant of the insurance department, the policies of the company outstanding and in force on Oct. 21, 1873, and the value of such policies. One M. was by the same judgment appointed actuary and clerk to the referee to assist him in the performance of this duty. The referee made his report, dated Nov. 30, 1880, and filed Dec. 24, 1880, to which he attached schedules ghowing in detail the policies outstand

Harrison S. Moore, for respts. Held, That the evidence does not show a sufficient compliance with the requirements of the statute to warrant the admission of the alleged codicil to probate; that there is nothing from which an inference of due execution can be drawn. 16 Hun, 97; 77 N. Y., 596. Judgment of General Term, affirming decree of Surrogate admitting the codicil to probate, reversed, and proceedings remitted to the Surrogate.

Opinion by Earl, J. All con- ing and in force on Oct. 21, 1873,

cur.

APPEAL.

N. Y. COURT OF APPEALS. Reese, respt, v. Smyth, Supt. Ins. Dept., et al., applls.

Decided Feb. 26, 1884.

The report of a referee appointed to ascertain the values of policies of an insolvent in

surance company did not state the principle adopted in computing such values, and there was no finding by him as to the prin ciple to be adopted. Held, That an appeal from the order of confirmation did not present the question whether in using the tables prepared by the department it was necessary to add the value of an annuity equal to the difference between the net premium assumed by the department and

were

the names in which they
issued, the numbers of the policies,
their values respectively and the
names of the persons entitled to
share in the distribution of the
fund. The report does not state
what principle was adopted in
computing the values of the several
policies, but simply that the re-
feree examined on oath the actuary
M. as to the value of each and
every of said policies as of Oct.
21, 1873, and that on the proofs
taken by him and on the report of
the actuary he finds the matters
shown by the schedules attached
to his (the referee's) report as
matters of fact. The printed case

the net premium actually embraced in the does not contain the actuary's re

premiums called for by the policy.

port. On a final hearing at Special

Term, Feb. 12, 1881, the referee's report was confirmed, and a final decree of distribution made on that day. That decree recites that it was made on reading the referee's report and the schedules thereto annexed, and all proofs, valuations, papers and proceedings filed with and forming a part thereof. The only point raised by the appellants is stated to be that the exception to the referee's report presents the single question, whether in using the tables prepared by the insurance department to value policies issued for an adequate net premium, it is necessary to add the value of an annuity equal to the difference between the net premium assumed by the department tables and the net premium actually embraced in the gross premiums called for by the policy. There is no finding by the referee as to the principle upon which the valuations were made.

Raphael J. Moses and Edward Heaton, for applts.

Wm. H. Ingersoll, for respt.. Held, That the question is not presented by the case, and the court cannot look into the testimony and search there for material to found an allegation of error not apparent upon the face of the report.

The appellants have added in an appendix to the case a copy of an affidavit by the actuary, stating the method of calculation adopted by him in computing the valua tions, which is verified Feb. 12, 1881, and appears to have been filed May 18, 1881, after the hearing at Special Term, and is accompanied by a certificate of the clerk of Kings County that it is a transcript of an original filed in his office. office. It is not referred to in the judgment at Special Term, is not in the judgment roll and there is nothing to show that it was ever before the court below. It does not appear to have been considered in the appeal to the General Term or to have been before that court.

Held, That the affidavit has no proper place in the case on appeal to this court.

Points were presented by counsel for the receiver, claiming a right to be heard. The case does not. show that the receiver has taken any appeal to this court from the judgment below.

Held, That he has no standing in this court.

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Rapallo, J. All

concur.

END OF VOLUME EIGHTEEN.

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