Volume 152 — New York Reports

<p>1. Criminal Law—Gaming.</p> <p>A clerk, who attends his employer on a race track, and records in a book bets which his employer makes on the races, but makes no bets himself, is not guilty of violating either §§ 351 or 343 of the Penal Code.</p> <p>3. Same.</p> <p>Acts, mentioned in § 17, c. 570 of 1885, and punishable as therein provided to the exclusion of any other penalty or punishment, are excepted from the operation of § 351 of the Penal Code.</p> <p>3. Statute—Constitutional.</p> <p>Where an act is in a degree appropriate to accomplish the result for which it was intended, the court cannot condemn it as invalid or un constitutional because, in its opinion, some effective or more appropriate law might have been devised and enacted.</p> <p>á. Same.</p> <p>Section 9, article S of State Constitution was not intended tobe self-executing.</p> <p>5. Same.</p> <p>Where the act is forbidden by the legislature and the statute provides a penalty or forfeiture for a disregard of it, the determination of the degree of punishment or the extent of the penalty is vested in the legislature and not in the courts.</p> <p>g. Same.</p> <p>Section 17, c. 570 of 1895 is not in conflict with § 9, article 1 of State</p> <p>Constitution, and is constitutional and valid.</p>

<p>1. Lotteries—Horse racing.</p> <p>A race or other contest is not a lottery simply because its result is uncertain, or because it may he affected by things unforseen and accidental.</p> <p>3. Same.</p> <p>The offering of premiums or stakes by an association for a definite sum, without regard to the amount of entrance fees received and which are payable out of its general funds made up partly of entrance fees paid by the owners of the competing horses, does not constitute an offense under the statute relating to lotteries, nor is it a violation of the statute relating to hook-making or pool-selling,</p> <p>S. Same.</p> <p>Such offering of premiums or prizes is not in any such sense a contract or undertaking in the nature of a bet or wager as to constitute gambling within the spirit and intent of the provisions of § 9, article 3, state.Uonstitution.</p>

<p>1. WORKING-MEN’S ASSOCIATIONS — LEGITIMATE PURPOSES. Tile organization or co-operation of workingmen is not of itself against any public policy, and must be regarded as having the sanction of law, when it is for such legitimate purposes as that of obtaining an advance in the rate of wages or compensation, or of maintaining such rate.</p> <p>2. Restriction of Individual Right of Labor — Unlawful Purpose —• Public Policy. If the purpose of an organization or combination of workingmen is to hamper or restrict the freedom of the citizen in pursuing-his lawful trade or calling, and, through contracts or arrangements with employers, to coerce other workingmen to become members of the organization and to come under its rules and conditions, under the penalty of the loss of their positions and of deprivation of employment, such purpose is against public policy and unlawful.</p> <p>3. Contract with Employers’ Association. The fact that a contract between a workingmen’s organization and an employers’ association was entered into on the part of the employers with the object of avoiding disputes and conflicts with the workingmen’s organization, does not legalize a plan of compelling workingmen, not in affiliation with the organization, ¡ to join it, at the peril of being deprived of their employment.</p>

The comptroller of the state imposed a tax upon the relator for the sixteen years ending November 1st, 1896, under the provisions of chapter 542 of the Laws of 1880, and the acts amendatory thereof. The relator is a foreign corporation, organized under the laws of the Grand Duchy of Baden, in the Empire of Germany.

The nature of the action and the facts, so far as material, are stated in the opinion. The refusal of the court to charge, as requested by defendants, that, if plaintiff fell from the fourth or fifth step, the verdict must be for the defendants, was error. (Doughty v. Hope, 3 Den. 594; Clark v. Vorce, 19 Wend. 232; Le Roy v. P. F. Ins.

<p>1. Ejectment against Tenant of Life Tenant—Effect of Re-entry. A judgment in ejectment against one who had no interest in the premises, except as a tenant under a life tenant when the action was commenced, and who had moved from the promises before judgment was rendered, is without legal force or effect, and he is not dispossessed by the writ of assistance or execution issued upon the judgment, nor is the plaintiff in any legal sense placed in possession by virtue thereof, so as to hold adversely to a remainderman while the life tenancy continues.</p> <p>2. Ejectment against Life Tenant — Effect on Remainderman. Possession acquired under a judgment in ejectment against a life tenant has no effect on the rights of a remainderman.</p> <p>3. Tenant’s Right to Redeem after Ejectment —■ Limitations. A remainderman who was not a party to an ejectment brought by a landlord against the life tenant to recover the possession of the property for non-payment of rent is not within the six months’ Statute of Limitations (2 Rev. St. 506, §§ 33, 34), which limits the tenant’s right to redeem, by paying all rent in arrear, with costs, to six months after the landlord has been placed in possession under the ejectment suit.</p> <p>4. Mature of Action to Redeem from Ejectment. An action by a remainderman to redeem after a default judgment in ejectment by a landlord against a life tenant for non-payment of rent, which is within the spirit and meaning of section 1680 of the Code of Civil Procedure, does not sound in tort, but is equitable in its nature, and can be sustained without any proof of fraud.</p>

This was a motion by the plaintiff to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 21, 1896. The facts, so far as material, are stated in the opinion. The appeal should be dismissed. (Code Civ. Pro. § 191, subd. 2; Const. of N. Y. art. 6, § 9.) There was a unanimous decision by a quorum of the Appellate Division in the fourth department, not by the Appellate Division.

which dismissed a writ of certiorari and all proceedings based thereon. The facts, so far as materia], are stated in the opinion. Although under section 89 of the Highway Law the decision of the County Court upon a motion to confirm the report of the commissioners appointed to determine upon the necessity of laying out a highway shall he final, such decision can be reviewed by a writ of certiorari. (L. 1890, ch. 568, §§ 82, 83, 84; Spelling on Extra.

This action was brought to recover damages alleged to have been caused by the negligence of defendant in allowing an obstruction to remain in the driveway of a street, in the city… Held: liable therefor. (L. 1882, ch. 410, § 710; Wanamaker v. City of Rochester, 17 N. Y. Snpp. 321; Judson v. Vil. of Olean, 116 N. Y. 655; Conley v. City of Portland, 3 Atl. Rep. 658; Loughlin v. State of N. Y., 105 N. Y. 159; 3 Wood on Railway Law, § 338; 2 Thomp. on Neg. 1026; Beach on Cont.

<p>1. Street Railway—Right to Use Street not Named in Articles of Association. The use of a city street, not named in its articles of association, by a company organized under the Street Surface Railroad Act (L. 1884, ch. 252), merely for hauling cars to and from a car storehouse, is impliedly, if not expressly, sanctioned by the law when a majority of the abutting owners consent and the storehouse is located upon the only vacant land available, which was not within the restrictions imposed by the resolution whereby the city authorized the company to make necessary connections in the street named in the articles and “in such parts of those adjacent thereto as may be necessary.”</p> <p>2. Corporations—-Implied Powers. What a corporation may or may not do within its grant of powers is to be determined by the reasonable intendments of its charter as well as its clear expressions of authority.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in not dismissing the complaint and directing a verdict for defendant, in charging the jury that they might find the resolution of .September 18, 1872, to be a contract between plaintiff and defendant, and in receiving the check sued on in evidence.

The nature of the action and the facts, so far as material, are stated in the opinion. Constitutional safeguards should be upheld. (Const. of N. Y. art. 14, §§ 1, 2; Martbury v. Madison, 1 Crunch, 177; Norton v. Shelby Co., 118 U. S. 442; Huntington v. Worthen, 120 U. S. 101; People ex rel. v. Albertson, 55 N. Y. 55.) Any scheme to embark a state or a city in the business of running a railroad is dangerous to the commonwealth or to the municipality.

Appeals, by permission, from judgments of the General Term of the Superior Court of Buffalo, entered ¡November 3, 1894, which affirmed judgments in favor of plaintiff rendered in the Municipal Court of Buffalo. The nature of the actions, and the facts, so far as material, are stated in the opinion.

Also, appeal from an order of the same General Term, entered December 19, 1894, which affirmed an order of Special Term denying a motion by the plaintiff to correct and modify the judgment of the Special Term by striking out the words “ upon the merits,” so that the judgment should read : That the plaintiff’s complaint be and the same is hereby dismissed, without costs, instead of reading: That the plaintiff’s complaint be and the same is hereby dismissed upon the merits,…

The nature of the action and the facts, so far as material, are stated in the opinions. The revised Constitution, which went into effect on the 1st day of January, 1895, has not repealed, modified or altered the provisions of the statute relative to civil service appointments in the state of ¡New York (save only those portions of the statute which are in the nature of exceptions to the general provisions thereof, such as those respecting veterans).

assessment. The facts, so far as material, are stated in the opinion. The assessment was excessive. The method adopted hy the assessors in arriving at the value of the real estate was incorrect and the results were necessarily erroneous.

<p>Appeal from a judgment of the General Term of the Supreme Court in the first judicial department, entered May 5, 1894, which modified, and as modified affirmed, a judgment in favor of defendant entered upon a verdict, and also affirmed an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the General Term of the Supreme Court in the first judicial department, entered May 8,1895, which affirmed a decree of the Surrogate’s Court of the county of New York passing the accounts of an executor.</p>