Volume 179 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. The learned trial court committed no error in dismissing the complaint. The risk was obvious and was assumed by the plaintiff.

The complaint does not set forth any crime. (10 Ency. PI. & Pr. 473; People v. Pillion, 78 Hun, 74; People v. Gregg, 59 Hun, 107.) A detective who keeps a person under surveillance on the public street must be able to prove a public necessity for the surveillance in order to avoid criminal responsibility. (Penal Code, § 675.)

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February 10, 1904, which modified and affirmed as modified a decision of the state comptroller in assessing a franchise tax against the relator.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Relator had no capital “ employed within this state ” and was not subject to any franchise tax. (People ex rel. v. Roberts, 30 App. Div. 180; People ex rel. v. Miller, 177 N. Y. 54; People ex rel. v. Morgan, 57 App. Div. 335; People ex rel. v. Knight, 173 N. Y. 262.)</p> <p>The entire capital stock of the relator ivas “ employed within this state,” and was, therefore, subject to taxation under the provisions of the Tax Law (L. 1896, ch. 908, § 182).</p>

The facts, so far as material, are stated in the opinion. The privilege accorded established places of traffic under subdivision 8 of section 17 of the Liquor Tax Law, by reason of the fact that they were occupied for traffic on March 23, 1896, is now subject to the qualification provided in subdivision 5 of said section relative to their continued use since said date. (People ex rel. v. Murray, 148 N. Y. 171; People ex rel. v. Lammerts, 18 Misc. Rep. 343; 14 App.

The nature of the action and the facts, as far as material, are stated in the opinion. The charge to the jury was erroneous. (Mott v. Con. I. Co., 73 N. Y. 543; Dwinelle v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 124; Fortune v. Trainer, 19 N. Y. Supp. 600; affd., 141 N. Y. 605; Hamel v. B. & N. Y. F. Co., 6 N. Y. Supp. 102; affd., 125 N. Y. 707; Girvin v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 289; Fogarty v. Wanamaker, 60 App.

The action was brought by the sheriff of the city and county of New York and the National Broadway Bank, an alleged attachment creditor, under section 677 of the Code of Civil Procedure, to recover an indebtedness of the firm of O. II. Sampson & Co. to the Bennett Manufacturing Corporation. It was claimed that the debt was attached on April 20, 1897.

<p>1. Tax—Franchise Tax Imposed upon Domestic Life Insurance Companies — L. 1901, Ch. 118, Not Retroactive. Section 187 of the Tax Law (L. 1896, ch. 908, amd. L. 1901, ch. 118), authorizing an annual tax upon the gross amount of premiums received during the preceding calendar year by every domestic insurance company, for the privilege of exercising corporate franchises and of carrying on business in this state, to be paid over before the first day of June in each year, is not retroactive, but prospective in its operation, and imposes a tax not upon premiums derived from contracts made prior to the time the statute took effect, but upon future business only.</p> <p>3. Basis for Computation of Tax. The statute not going into effect until October 1, 1901, the provision therein that the tax should be based upon the amount of premiums received during the preceding calendar year must refer to the calendar year commencing January first thereafter, since if the year commencing with the preceding January was intended the law would be retroactive, the tax reacting during nine months when no law authorizing it was in existence.</p>

of Special Term denying a motion for a peremptory writ of mandamus to compel the admission of the relator’s child to a public school in the borough of Queens, city of New York. The facts, so far as material, are stated in the opinion. Every child in this state has a constitutional right to an education. (Const, of N. V. art. 9, § 1.) This right or privilege cannot be withheld nor made conditional, hampered nor embarrassed by the legislature.

<p>Will — Definition of “ Unmarried ” as Used in Testamentary Provision. The word ‘' unmarried ” as used in a testamentary provision, by which the testator directed that in case of a daughter’s death without issue, or upon the deatli of his wife or upon his own death, whichever should last occur, that portion of his estate bequeathed to his daughter should go to "such person or persons as would by law receive the same were I to die iu and an inhabitant of the state of Kcw York, unmarried and intestate as to said portion,” is to be construed as meaning not married at the time of testator’s death, not as never having been married, and where, after the testator’s death, the daughter dies without issue, upon the death thereafter of the widow, such portion passes to testator’s descendants and not to his collateral relatives.</p>

Appeal, by permission, from a judgment entered January 12, 1904, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.

Appeal in the first above-entitled action, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 10, 1904, which affirmed a determination of the Appellate Term of said Supreme Court affirming a judgment of the Municipal Court of the City of Hew York in favor of plaintiff for a penalty for violation of the Tenement House Act, entered upon a verdict.

The nature of the action and the facts, so far as material, are stated in the opinion. There was sufficient evidence to enable the jury to find that Flanagan, who was acting as train dispatcher, .negligently started the train while the deceased was between the engine and the first car, or in a position of danger, and that the deceased was free from contributory negligence.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered August 5, 1903, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Tidal Term.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 18, 1903, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p>

<p>Appeal from a judgment, entered August 25,1902, upon an order of the Appellate Division of the Supreme Court in the third judicial department affirming an interlocutory judgment of Special Term overruling a demurrer to the complaint.</p>

July 9, 1903, which affirmed an order of Special Term confirming a report of commissioners of estimate and assessment; also appeal from an order of said Appellate Division, entered March 30, 1903, which reversed an order of Special Term . confirming an earlier report of said commissioners.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 27, 1904, which affirmed the proceedings of the defendant in removing the relator from the position of patrolman on the police force of the city of New York.</p>

Supreme Court in the first judicial department, entered January 28, 1904, which affirmed a judgment of the Court of Special Sessions of the city of New York, convicting the defendant of a violation of section 675 of the Penal Code.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 13,1904, which reversed a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granted a new trial.</p>

<p>Appeal — Preberencb. An appeal from a judgment for a sum of money, not involving questions of public importance or extraordinary circumstances, although entitled to preference, will not be added to an existing calendar.</p>