§ 77. Contracts with apprentices in restraint of trade void.— No person shall accept from any apprentice any agreement or cause him to be bound by oath, that after his term of service expires, he will not exercise his trade, profession or employment in any particular place; nor shall any person exact from any apprentice, after his term of service expires, any money or other thing, for exercising his trade, profession or employment in any place. Any security given in violation of this section shall be void; and any money paid, or valuable thing delivered, for the consideration, in whole or in part, of any such agreement or exaction, may be recovered back by the person paying the same with interest; and every person accepting such agreement, causing such obligation to be entered into, or exacting money or other thing, is also liable to the apprentice in the penalty of one hundred dollars, which may be recovered in a civil suit.

PLACING OUT CHILDREN.

AN ACT to prevent evils and abuses in connection with the placing out of children.

Chapter 264, Laws of 1898.

Section 1. When used in this act the term destitute child means an orphan, abandoned or destitute minor, under the age of sixteen years, who is an inmate of a public or private charitable institution or is maintained by or dependent upon public or organized charity. The term place-out, when used in this act, means the placing of a destitute child in a family, other than that of a relative within the second degree, for the purpose of providing a home for such child. The term board, when used in this act, means the state board of charities.

§ 2. It is hereby made unlawful for any person or corporation, other than a charitable or benevolent institution, society or association, or society for the prevention of cruelty to children, now or hereafter duly incorporated under the laws of this state, or a local officer charged with the relief of the poor and placing out in the manner now provided by law, to place out any destitute child, directly or indirectly, unless such person or corporation

shall be duly licensed, as hereinafter provided, by the state board of charities, to place out destitute children. Nor shall any local officer charged with the relief of the poor, directly or indirectly, place out any child or children in a family not residing within this state.

In Supreme Court, November, 1901, People ex rel. Charles W. Spaulding v. The Board of Supervisors of Saratoga County, 66 App. Div. 117, the court said: "That such resolution empowered the superintendent of the poor to employ Maybee to assist him in finding homes for indigent children, which was one of his official duties.

"That the duty of placing children in the homes found by Maybee devolved upon the superintendent of the poor and not upon Maybee, and, therefore, that the fact that Maybee was not licensed by the State Board of Charities to place out' children, as required by section 2 of chapter 264 of the Laws of 1898, did not render the contract of employment invalid.”

Decision affirmed, 170 N. Y. 93, but order based upon decision, modified..

§ 3. The state board of charities is hereby authorized to issue licenses to such persons or corporations as apply therefor, and, in the judgment of said board, are proper to place-out children, empowering such licensees to place out destitute children. Any such license may be revoked by said board, in its discretion, on reasonable notice to such licensee and after affording such licensee an opportunity to be heard before said board. The reason for not granting any such license within six months after application has been made therefor, or for revoking a license, shall be entered in full in the minutes of said board.

§ 4. Any person or corporation who shall place out a destitute child shall keep and preserve a record of the full name and actual or apparent age of such child, the names and residence of its parents, so far as known, and the name and residence of the person or persons with whom such child is placed. If such person or corporation shall subsequently remove such child from the custody of the person or persons with whom it was 'placed, the fact of such removal and the disposition made of such child shall be entered upon such record.

5. The state board of charities, through any member, officer or duly authorized inspector of said board, is hereby authorized to visit, in its discretion, any child under the age of sixteen years, not legally adopted, placed out by any person or corpora

tion mentioned in the second section of this act, or by any person licensed by said board to place out destitute children.

§ 6. In every case where practicable any child placed out shall be placed with individuals of like religious faith as the parents of the child.

§ 7. Whenever the state board of charities shall decide by the affirmative vote of a majority of its members that any person or corporation has placed out children for purposes of gain, or without due inquiry as to the character and reputation of the persons with whom such children are placed, and with the result that such children are subjected to cruel or improper treatment or neglect or immoral surroundings, the said board may issue an order prohibiting such person or corporation from thereafter placing out children. No such order shall be issued unless such person or corporation has had reasonable notice, with a copy of the charge, and an opportunity to be heard before said board, and a full record of the proceedings and decision on such hearings shall be kept by said board. Any such order issued by said board may be revoked by said board.

§ 8. Any person or corporation who may feel aggrieved by the decision of the state board of charities in issuing any order pursuant to the provisions of section seven of this act, may apply to any judge of the supreme court in the judicial district in which such person resides, or in which the chief office of such corporation is situated, for a writ of certiorari, and upon the return of such writ the reasonableness of such decision shall be subject to review by the supreme court of this state.

§ 9. Any person or corporation who shall willfully violate any of the provisions of this act or shall place out a child in violation of an order issued under the provisions of section seven of this act shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than fifty and of not more than two hundred and fifty dollars.

19. Id.; as to child seven years or more.

20, 21. Irresponsibility, etc., of idiot, lunatic, etc.
22. Intoxicated persons.

§ 12. Of sections declaring crimes punishable.— The several sections of this code which declare certain crimes to be punishable as therein mentioned devolve a duty upon the court authorized to pass sentence to determine and impose the punishment prescribed, but such court may in its discretion suspend sentence, during the good behavior of the person convicted, where the maximum term of imprisonment prescribed by law does not exceed ten years and such person has never been convicted of a felony. Courts of special sessions are empowered to suspend sentence and at any time within the longest period for which a defendant might have been sentenced, may issue process for the re-arrest of the defendant, and when arraigned the court as it is then constituted may proceed to enter judgment and impose sentence. In the case of children under sixteen years of age, at the time of conviction, the longest period of time after suspension of sentence within which a sentence may be imposed for such offense shall be one year; and in any proceeding of a criminal nature, triable before a magistrate, the magistrate upon conviction, may suspend sentence and place the offender under probation and at any time thereafter, during the longest period for which he could have been committed in the first instance, such magistrate, or his successor, if his term has expired, may pronounce any judgment or sentence or impose any fine or other penalty, or make any commitment which might have been pro

nounced, imposed or made at the time the conviction was had. (As amended by chapter 655 of the Laws of 1905.)

§ 18. Presumption as to child under seven years.-A child under the age of seven years is not capable of committing crime.

The law does not define when a child becomes sui juris. Court of Appeals, February, 1887, Kunz v. City of Troy, 104 N. Y. 351; 5 St. Rep. 642.

A child not yet seven has not reached that age at which infants are generally supposed to be of full discretion or capable of crime of which laches and neglect are but degrees. Court of Appeals, February, 1888, Moebus v.

Herrman, 108 N. Y. 353; 13 St. Rep. 648.

Infants under seven years of age are deemed incapable of committing crime, and by the common law such incapacity presumptively continues until the age of twelve. Court of Appeals, June 4, 1889, Stone v. Dry Dock, etc., 115 N. Y. 109; 23 St. Rep. 551.

§ 19. Age of capability for crime. Age, how determined by examination. By record of baptism or birth. By family Bible.A child of the age of seven years, and under the age of twelve years, is presumed to be incapable of crime, but the presumption inay be removed by proof that he had sufficient capacity to understand the act or neglect charged against him and to know its wrongfulness. Whenever in any legal proceedings it becomes necessary to determine the age of a child, the child may be produced for personal inspection, to enable the magistrate, court or jury, to determine the age thereby; and the court or magistrate may direct an examination by one or more physicians, whose opinion shall also be competent evidence upon the question of age. A copy of the record of baptism of any child in any parish register, or register kept in a church, or by a clergyman thereof, or a certificate of baptism duly authenticated by the person in charge of such register, or who administered said baptism, and also a transcript of the record of birth recorded in any bureau of vital statistics or board of health, duly authenticated by its secretary or under its seal, and the entries made in a family Bible, shall also be competent evidence upon the question of the age. (As amended by chapter 46 of the Laws of 1881 and chapter 145 of the Laws of 1888.)

The Penal Code preserves the rule of the common law except that it fixes the age of twelve instead of fourteen as the time when the presumption