The Albany Law Journal. ripened judgment, there should be no question A Monthly Record of the Law and the Lawyers. Published by THE ALBANY LAW JOURNAL COMPANY, Albany, N. Y. Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law questions, addresses on legal topics, or discussions on questions of timely interest, are solicited from members of the bar and those interested in legal proceedings. [All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions or other business matters should be addressed to THE ALBANY LAW JOURNAL COMPANY.] Subscription price, Three Dollars per annum, in advance. Single number, Twenty-five Cents. ALBANY, N. Y., JANUARY, 1902. Current Topics. Judge whatever about his retention upon the bench he has so signally honored. For these reasons, we believe that we but voice an almost universal sentiment in suggesting that partisan politics be thrown entirely aside and this upright, fearless and extremely valuable member of the court re-elected for another term. Relying upon the Rhode Island statute providing that whenever death results from a wrongful act, the next of kin may maintain an action therefor if the negligence is such that the deceased could have done so had he lived, suit was brought in Gorman v. Budlong (49 Atlantic Rep. 704), by the father of an infant which died because of premature birth, the The expiration of the term of office Judge Sho of injuries to the mother caused by the Gray as a member of the New York Court of defendant carelessness and negligence. In Appeals, which, we believe, w occur at the reviewing at length the cases in which recovclose of the present year, again ferver riped pay hash sought for injuries to an infart LIBRARY public attention to the importance of onana before birth, the court says that the iming the services of wise, learned and experi- puted sistence in esse to an unborn child is a enced judges who have not yet approached the fiction of the civil law by which said child may age at which retirement is made compulsory at the same moment be regarded, for its own by the Constitution of the State. We think it bene, as in esse, and to its prejudice, not in will be universally conceded by bench and barresse. It is also contended that this action lies and public alike that Judge Gray has, during the fourteen years in which he has been a member of this high tribunal, made a deep and enduring impress upon its records and upon the jurisprudence of the State; that he has been ever faithful, conscientious and courteous. Deeply learned in the law, he has displayed in an eminent degree those qualities of dignity, firmness, quick comprehension and absolute impartiality which we naturally expect in a member of the judiciary and especially of its highest branch. Judge Gray's opinions, which will be found scattered through the reports for the past fourteen years, are those of the scholarly lawyer, sound reasoner and faithful arbiter. They have enriched the legal literature of the State. Such experience as Judge Gray has gained during his long term on the bench of the Court of Appeals should not be lost to the State, especially as, if re-elected for a full term, he will have ten years or more to serve before reaching the age limit prescribed by the Constitution. In the prime of life, with every faculty unimpaired, and with seasoned and VOL. 64. No. 1. in analogy to the criminal-law rule that if a child born alive afterwards dies of injuries received while in utero, it is murder; but there is no such analogy between the tort and the crime. Nor is there any analogy in the statutes providing that posthumous children shall share in their father's estates. No recovery can be had. A contempt case that will interest the bar and the bench alike is that of Ex parte Stricker (109 Federal Rep. 145). The facts of the case are brief and simple. Stricker was a Cincinnati lawyer, who also practiced in Covington, Ky. Arriving at the latter place to try a case in which he was retained, he found the judge was absent in Chicago, and had telegraphed the sheriff to adjourn all business until a future day. Pursuant to the provisions of a Kentucky statute, the attorney requested the clerk to hold an election for a special judge to try the case. The clerk refused. After the return of the regular judge, the case proceeded to trial. In the midst of the trial the judge sent for the clerk, and inquired who the Cincinnati New York. The question arose in the action attorney was who had requested the election of of The People ex rel. the Society of the Free a special judge while he was absent in Chi-Church of St. Mary the Virgin agt. The Comcago. The attorney stood up, and replied in a missioners of Taxes and Assessments of the respectful manner that he was the man. He City of New York. The appeal was by the was ordered to sit down, which he did, and the defendants from reversal of a Special Term orcase proceeded until the noon recess, when the der confirming their assessment of the relator's judge, without further proceedings, announced property for taxes in the year 1899. Judge that Stricker was fined $25 for contempt of Haight, who wrote the opinion, in which all court, and the sheriff would take said Stricker concur, says: in custody until the fine was paid. The petitioner applied to the United States District Court for a writ of habeas corpus. Judge Evans, in his opinion, holds that a person who is summarily adjudged guilty of contempt without a hearing for an act not committed in the presence of the court, and who, in consequence thereof, is imprisoned for non-payment of the fine imposed, is deprived of his liberty without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States. "The relator is a domestic corporation organized under chapter 218 of the Laws of 1854 exclusively for religious, charitable, benevolent and educational purposes, and for the moral and mental improveproperty located in the city of New York, consisting of a church building, a mission house, clergy house and a rectory. The commissioners of taxes and assessments assessed the mission house at $10,000, The Special Term deducted $2.000 from the assessthe clergy house at $12,000 and the rectory at $8,000. ment of men and women. It is the owner of real ment against the clergy house and then confirmed the assessment. The Appellate Division has reversed the order of the Special Term, holding that the relator was not properly assessed for any sum whatever. 1897) provides that the real property of a cor- for religious, Bible, tract, charitable, benevolent, from taxation.' Senator Hoar has, it is understood, given The general tax law of 1896 (chap. 908, sec. 4, notice of his intention to propose an amend-subdiv. 7, as amended by chap. 371 of the Laws of ment to the legislative, executive and judicial appropriation bill, raising the salaries of the federal judges as follows: The chief justice of the Supreme Court, from $10,500 to $15,500; the justices of the Supreme Court, from $10,000 to $15,000; the Circuit judges, from $6,000 to $9,000; the District judges, from $5,000 to $7,000. The proposed increase, as will be seen, is equal to about fifty per cent all around. We hope to see the amendment incorporated in the law so as to make the proposed increase effective, and agree with our contemporary, the New York Law Jaurnal, in the view that if there is any criticism to be passed upon the measure it is based upon the ground that the above figures do not provide for a sufficient increase in the case of District judges, who are required to live in the larger cities. According to a decision recently handed down by the New York Court of Appeals, the property of a society incorporated exclusively for religious, charitable, benevolent and educational purposes is exempt from taxation, under section 4, subdivision 7, of the Tax Law of building devoted to religious services, which is conUpon the relator's real property is a large church cededly exempt. The first controversy arises with reference to the mission house located at the southeast corner of the church. * * * The daily use of the chapel for religious services, the constant reception of women and children for counsel and advice, the distribution of charity, with the meeting of the guilds day and night, would seem to make the residence of the sisters in the building necessary and an incident to the work carried on there, and not an appropriation of the building for other purposes than that for which the relator was incorporated. We are, therefore, inclined to the view that this building is exempt." A clergy house so connected with the church building that the lower floor may be used by the congregation at crowded meetings, and which is regularly used for chapel and Sunday school purposes, containing a choir and vestry, and also, on the upper floors, a men's guild, consisting of readingroom, club-room, billiard-room, library and the sleep |