Page images
PDF
EPUB

ture has not delegated to it any of its powers to enact or to repeal laws, and, doubtless, no such power was contemplated by the constitutional provision to which we have referred. This is evident from the concluding clause, which subjects the rules of the board to the control of the legislature.

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 under private control, for the care, support, secular education, or maintenance of any child surrendered to such institution, or committed to, received or retained therein in accordance with section 664, except upon the certificate of the commissioner of public charities that such child has been received and is retained by such institution pursuant to the rules and regulations established by the State Board of Charities."

The State board of charities, pursuant to the provisions of the Constitution and of the statutes to which we have called attention, established rules which, so far as is material upon the question under consideration, are as follows:

4.

* * *

"1. The Reception of Inmates.-The following classes of persons and no others may be received as public charges into charitable, eleemosynary, correctional and reformatory institutions wholly or partly under private control, authorized by law to receive payments from any county, city, town or village for the support, care and maintenance of inmates. * * * No child between the ages of two and sixteen years, unless convicted of crime, shall be received into any such institution as a public charge unless committed thereto or placed therein by a court or magistrate having jurisdiction, or by the superintendent of the poor of a county, or overseer of the poor of a town, or commissioner or commissioners of charities, or other local officer or board legally exercising the powers of an overseer in the county, city, town or village sought to be charged with the support of such child and authorized by law to commit children to such institution or to place them therein."

As we have see, Mamie Schellberger was placed in the New York Juvenile Asylum by her mother. She had not been convicted of any crime and was not committed by any court or magistrate, or by the commissioner of charities of the city of New York who legally exercised the powers of an overseer of the poor in counties. It is not alleged that this child was a poor person or that her mother was unable to support her, and thus far there has been no adjudication that she was a proper public charge. It will thus be seen that the claim of the asylum rests upon the provision of its charter giving parents the right of surrendering their children to it, and the provisions of the statute authorizing the city of New York to pay it one hundred and ten dollars a year for each child so given to its charge and custody.

In answer to this the city invokes the rule established by the State Board of Charities to which we have referred. The asylum contends that this rule is illegal, unauthorized and void. If this rule is to be construed as effecting the repeal of the statute we should hesitate about sustaining its validity. The Constitution and the legislature, by the acts to which we have referred, have authorized the State Board of Charities to make rules, but such rules are subject to the control of the legislature by general laws.

The Constitution is the supreme law of the State, and before it all statutes must fall that are in conflict with its provisions. The first provision to which we have called attention preserves statutes until amended or repealed by the legislature, which are not inconsistent with its provisions. The next section to which we have referred gives to the legislature the power to authorize counties, cities, towns and villages to make appropriations for charitable institutions wholly or partly under private control, but prohibits the legislature from requiring such appropriations. In other words, cities may be authorized to make donations to charitable institutions, but they must be left free to exercise their own judgment as to the amount and character of the charities they shall bestow; but no payments shall be made for any inmate of a charitable institution under private control who is not received and retained therein pursuant to the rules established by the State board of charities. Here we have an express prohibition with reference to payments made for inmates of such institutions. Under the charter of the asylum the city of New York was required to pay $110 per annum for each child surrendered to its care by its parents, or committed to it by an officer authorized to commit children to such institutions. Under this statute there was no discretionary power vested in the common council or board of supervisors. The payment was required to be made by the act of the legislature, and it was subject to no rules or regulations of any board; but the provisions of the Constitution effected a change of the statutes in these particulars. The payment of $110 per annum can no longer be required by the legislature; it can only authorize the city to make it, leaving it free to act through its constituted authority and to make the payment or not in its discretion. Not only this, but it changes the provision of the statutes by prohibiting payments, unless the conditions specified in the Constitution are complied with. What are these conditions? They have been repeated time and again in the statutes, as well as in the Constitution. There was a purpose sought to be accomplished; this purpose appears from the discussions that were engaged in by the members of the constitutional convention in which this provision was framed. Mr. Choate, the president of the convention, spoke at some length when this provision was under consideration, and, among other things, stated that in the city of New York, as it then existed before its enlargement, there were eighteen thousand children in these asylums supported by charity, many of whom were placed there without commitment by parents who were perfectly able to 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. It is thus apparent that the object and purpose of the provision was that there should be some means provided for determining whether the inmates of these asylums were properly a public charge. This duty the Constitution delegated to the State board of charities, but subject to legislative control. It impaired no legislative function; it merely involved an inquiry as to the condition of the inmates in regard to their financial responsibility or that of their parents or guardians. It doubtless was not deemed practicable for the board itself to investigate and determine the financial condition of each inmate of these asylums throughout the State, consequently it was given power to adopt rules, and to specify officers by whom these questions could readily be determined.

were established by the State board of charities; and in addition thereto, Martin, J., in delivering the opinion of the court, says: "This declaration of the organic law is plain and unambiguous, and expressly forbids the appropriation of money by the counties and cities of the State to any such purpose, unless the inmates are received and retained in the manner stated. Its manifest purpose is to make all appropriations of public moneys by the local political divisions or municipalities of the State to institutions under private control, subject to the supervision and rules of the State board of charities."

There is nothing in these provisions which affects the rights of parents or guardians in surrendering their children or wards to the custody of the asylum for support and education, if they so desire. The asylum may still receive such children and support them at the expense of their parents or guardians, or of such charitable fund as may be in its possession for that purpose. They are only prohibited from collecting pay from the city for the support of these children until the commissioner of charities of the city, or of some court having jurisdiction, has committed them to the asylum as proper subjects of a public charge. This imposes no greater hardship on the asylum, and it protects the city from the frauds which may be practiced upon it by those who are able to support and educate their own children.

These views render it unnecessary at this time to consider the effect of the various statutes to which attention has been called.

The order appealed from should be affirmed, with costs. PARKER, Ch. J., GRAY, O'BRIEN, VANN, CULLEN and WERNER, JJ., concur. Order affirmed.

It is not the rule that repeals or amends the statute; it is the Constitution itself that effects the change. If the Constitution had provided that no payments should be made for the support of infants in these asylums, except upon an order of the court adjudging that the person for whom payment is sought was properly a public charge, it would hardly be contended that the court in determining the question was in effect repealing the statute. To our minds no greater force can be given to the action of the State board of charities. It has adopted rules, as it was required to do by the provisions of the Constitution and of the statutes, to which we have referred. It is the Constitution that gives life and force to these rules, and it is the Constitution that places limitations upon the payments that the statutes had previously authorized and required. The Constitution itself does not provide the means for the determination of the question as to whether the children in these institutions are properly a public charge; that function, as we have seen, deUntil, volves upon the State board of charities. therefore, the State board of charities takes action Husband and Wife.- In the case of Oppenheimer in the matter and provides the means by adopting 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 a sufficient consideration as against the husband's case of People ex rel. Inebriates' Home for Kings County v. Comptroller of the City of Brooklyn (152 N. Y., 399-410), who, after referring to this provision of the Constitution, says: "We entertain no doubt that this prohibition operated presently, that is to say, that from the time rules should be established by the State board regulating the reception 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 maintenance of inmates received or retained in contravention of the rules of the board."

So in the case of People ex rel. New York Institution for the Blind v. Fitch (154 N. Y., 14-38), in which it was again asserted that this provision of the

Notes of Cases

creditors. The court said in part: "The decisions of this court are substantially without conflict that a conveyance from husband to wife, in order to be of any validity against his creditors, must not only have been made in entire good faith, and without intent to hinder, delay, or defraud them, but also must be upon a valuable consideration, paid out of

In the present case the absence of separate estate and the actual consideration for the transfer are left in no doubt, for that consideration consisted solely and exclusively in the withdrawal of Mrs. Collin's action for divorce, or substantially in her consent 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 consideration moving from his wife's separate estate. The first of these reasons is that neither the law nor public policy can favor or approve bargaining between husband and wife as to continuance or severance of the marital status, in the existence of which the public, as a third party, is interested, as well as the two spouses. Another most cogent reason is the utter inability to protect the rights of creditors in the property of a husband if such contracts can be deemed a valid consideration."

Irrevelant Remarks of Prosecuting Attorney.-In

find out whether the affairs of the company had been properly conducted during the year past. Being a stockholder, owning more than 6 per cent. of the capital stock, she was entitled under Section 52 of the Stock Corporation Law, upon written request of the company's treasurer, to a statement embracing a particular account of all its assets and liabilities. That remedy, however, the petitioner did not invoke. Assuming, said Justice O'Brien, for the appellate tribunal that the remedy under the Stock Corporation Law is not exclusive, and that in order an inspection, it would yet follow that the a proper case the Supreme Court has the right to summing up before a jury on a prosecution for allegations of the petitioner, in the absence of facts illegal sale of intoxicating liquors, counsel for the to support them, that the transactions complained State remarked that this moonshine business must of were of doubtful legality and unauthorized, are be broken up, "Cayton's murder was caused by it." mere conclusions upon which judicial action cannot Counsel was not interfered with by the court, but be founded. "It is always an easy matter," conon 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 removed, and the rule hereafter to be followed will the most dangerous results, and if in the calmer 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 inadthis 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 cases which say that much must be left to the discretion of the judge below as to when and how he will correct the error, either by stopping the counsel or cautioning the jury; but in the case at bar the court did neither. It is urged that the jury were too intelligent to be prejudiced by any such remark. This may be true, and yet it does not affect the spirit of the law, which seeks by well-established rules to prevent the possibility of prejudice. An opposite course would do away with the entire law of evidence, and permit the introduction of all testimony of every kind and description, competent or incompetent, relevant or irrelevant, that either side may see fit to offer. In all such cases the intelligence of the jury must be guided by the wisdom and experience of the law."

Stockholder's Right to Examine Corporation's Books. The Appellate Division of the New York Supreme Court, First Department, in a recent decision, puts a check on the prevalent idea that a stockholder is entitled for any purpose and to any extent to examine the books of the corporation in which he owns stocks. The case before the court was an appeal from an order granting an inspection of the books of the Colwell Lead Company to Ida Colwell, a stockholder owning only 180 shares out

New Books and New Editions.

Cyclopedia of Law and Procedure, Vol. 5. With Volume V of their Cyclopedia of Law and Procedure, the American Law Book Company present to the consideration of the legal profession an innovation in law-book making which cannot but appeal forcibly to every lawyer. The innovation referred to consists in a small volume of annotations bringing down to date the articles published in the first four volumes of the work.

The importance to the profession of this event can hardly be exaggerated, for it means relief in large measure from the awful drudgery of finding the law, and moreover insures a law book which, instead of depreciating, will actually increase in value year by year. The tools of no other trade become so quickly superannuated and useless as those of the lawyer. Text books which have stood on his shelves for a few years have practically lost their value, and he must constantly replace them with new ones, or at least with "new editions,” if he would keep himself even approximately abreast of the law as enunciated by the courts; and at best he must supplement his text books by an individual research through digests and reports in order to reach the latest decisions. It is the design of these

cessors.

66

[ocr errors]

66

[ocr errors]

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 and 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 works on the subject, and lecturer on banking in the University of Pennsylvania and Haverford College. "Bankruptcy" is written jointly by James W. Eaton, author of "Eaton's Equity Jurisprudence," and an authority on all matters relating to bankruptcy, and Frank B. Gilbert, whose work in compiling various branches of the New York statute law is well known. The articles "Bail” and "Bonds" are written by Joseph A. and Howard C. Joyce, joint authors of "A Treatise on Electric Law," the first named being also the author of a well known work on insurance.

The volume covers the ground from "Bail" to "Build," and contains many excellent and valuable articles besides those mentioned. The typography and presswork are up to the usual high standard of these publishers.

66

Under section 217, Jurisdiction of Supreme Court, one refers to and quotes a repealed statute, Laws 1882, chap. 185. The Bliss Edition gives it correctly as it is, Laws 1882, chap. 185 (repealed), now Laws 1897, chap. 417, sec. 8, as amended by Laws 1902, chap. 150.

Under section 519, Construction of Pleadings, the Bliss Edition gives an excellent and valuable summary of latest cases; the other has nothing of the kind.

Under section 791, Preferences, the Bliss Edition has the late important case, changing the practice, of Morse v. Press Publishing Co. (71 App. Div. 351), which the other does not have; and so under section 834, Physicians as Witnesses, the former has the late important case of Greene v. Met. St. Ry. Co. (171 N. Y. 201), and Giffiths v. Same (id., 106); 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 sta

ANNOTATED Code.

We have before us two late annotated editions of the Code of Civil Procedure, and from examination and comparison are so impressed with the superiority and value of one over the other, that for the benefit of our readers and lawyers generally will give the reason for such conclusion.

We have taken at random or by chance a number of sections and subjects extending over the whole work, and most invariably without exception have found not only more cases of pertinent value, but many much later decisions in the Bliss Edition than in the other. We might mention for example, section 14, relating to contempt; 66-67, attorneys; 388, limitation; 481, complaint; 500, answer; 713, receiver; 723, amendments; 803, inspection; 820, interpleader; 1022, concise decision; 1904, amount of recovery for death by wrongful act, and a number of others where the difference in treatment and citation is so marked as to strengthen the impression referred to. Especially have we been impressed in the following particulars, which stamp the character of the whole: Sections 190, 191 and 1324, relate to the important

tutes; the Bliss Edition correctly refers to the "Real Property Law."

Under section 981, Relating to Conduct of Trial, the Bliss Edition has by far the better and more valuable collection of cases, with more recent decisions, under logical, systematic arrangement; besides we note it has the case of McDonald v. Met. St. Ry. Co. (167 N. Y. 66), one of the most important cases decided by the Court of Appeals in recent years, affecting right of a plaintiff to have case submitted to a jury even although the trial judge be of the opinion that it should be set aside as against the weight of evidence; the other edition does not have it, and in all respects it is inferior to the other.

Under section 999, Motion for New Trial, on the minutes, the Bliss Edition contains not only more and later cases, but under the head of "Injuries from Negligence," contains the most useful and valuable collection of cases relating to the amount of damages, or excessive or not excessive verdicts, to be found anywhere. It is by far superior to the other and of much more practical value.

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 and intelligently treated; for instance, in calling the attention to the amendment striking out the requirement of a review of the facts, and in distinguishing and classifying the cases. Nothing of the kind appears in the other.

Under section 1759, Regulation of Divorce Actions, the Bliss Edition contains not only the more valuable summary, but has the late case of Livingston v. Livingston, in the Appellate Division, holding a material amendment to be unconstitutional. This the other does not have.

Under section 1861, Action to Establish Will, the Bliss Edition contains the late and valuable case of Plant v. Harrison (36 Misc. 649), which the other does not have.

Under section 2471a, Compelling the Delivery of Books to Public Officers, the Bliss Edition contains more and later cases than the other, notably, Matter of Brenner (170 N. Y. 185), and Matter of Guden (171 N. Y. 529).

Under section 2660, Who Entitled to Letters of Administration, one quotes at length about five pages of repealed or superseded statutes, relating to the public administrator in New York; the Bliss Edition does not attempt to quote these statutes, but gives reference correctly, and in examination of the same it will be found that Laws 1898, chap. 230, | either repealed or superseded the matter above alluded to.

Under section 2729, Relating to Accounting in Surrogates Courts, both editions insert the Transfer Tax Act at length, but the Bliss Edition does it correctly as amended to and including 1902; the other does not. Section 228 of the Transfer Tax Act was amended by Laws 1902, chap. 101, and section 230, appointment of appraisers, etc., Laws 1902, chap. 496. These amendments are given in Bliss Code, but not in the other edition.

Section 3160, relating to the New York City Court, was amended by Laws 1902, chap. 515, by adding subdivision 2, making section 1013 applicable. The Bliss Edition has this section as thus amended, and the other has not, although under section 1013 it refers to the amendment.

Under sections 3305-3308, one refers to a number of repealed or superseded statutes. The Bliss Edition has treated the matter more intelligently and correctly by proper references and quotation at length in the Appendix, where will be found a useful table of fees in actual use in the sheriff's office in New York county.

Under the prior law and practice, the position of the Appellate Term in respect to the City Court was the same as that occupied by the Court of Appeals in regard to the Supreme Court, and the rules that governed the Court of Appeals in passing upon appeals from the Supreme Court were applicable to the matters coming before the Appellate Term (Kreizer v. Allaire, 16 Misc. 6; Wright v. May, 29 Misc. 301). By the amendment of 1902 to section 3190, title 3 of chapter 12 is now made applicable to appeals from the City Court to the Supreme Court. As to appeals from the Municipal Court, that subject is now governed by the Municipal Court Act of 1902, chapter 580, sections 310-326. Both the law and practice are materially changed by that act. We observe that the Bliss Edition has a valuable collection of cases and notes, including the subject of appeals, with memoranda of the changes or references to the Municipal Court Act, under section 3218; the other has nothing of the kind.

To further compare and test the claim of the latest cases we took all the cases published for a period extending over a month prior to May 1, 1902, and found that the Bliss Edition had them all, while the other had none.

The Bliss Edition has a much better and a more valuable appendix, preceded with a table of its contents, together with reference to pages where found, which the other does not have. It also contains a combined table index, showing at a glance the numbers of all the sections relating to the same subject and a brief summary of the general statutes relating to the same subject, as materially affecting practice or procedure. The other has nothing of the kind, and this special distinguishing feature commends itself so strongly that it need not be dwelt upon.

We note also that a late amendment of Rule 13 of the Court of Appeals is contained in the Bliss Edition, but not in the other; and same also as to Rule 5 of the Court of Claims. Furthermore, section 24 of the Statutory Construction Law, relating to holidays, was amended by Laws 1902, chap. 39. The Bliss Edition gives it correctly as thus amended; the other does not.

The Administration of Dependencies. By Alpheus H. Snow. New York: G. P. Putnam's Sons, 1902. For sale in Albany by A. H. Clapp.

The sole title of this work is "A Study of the Evolution of the Federal Empire, with Special Reference to American Colonial Problems." It is a very important contribution to the great problems of administration which were forced upon the government of the United States, when it acquired cer

There is a striking illustration of care, skill and judgment in the treatment of notes under section 1344, relating to appeals to the Appellate Term in the 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 many. The former is right in the omission or striking out, because the law and practice are radically and materially changed by amendments of 1902, abolishing the General Term of the City Court and

careful study, in all its bearings, of the clause in the Constitution of the United States by which the Congress is given power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United

« PreviousContinue »