be applied, and a proper allowance made to the mother for her past expenses in the support of the infant children in her care, out of the income of a trust estate which by the will was devoted to their support, education, and maintenance. We have before us the history of the transactions from the beginning, the record of the accounts filed by the appellant, not only as executrix, but as guardian, and voluminous testimony, and we see no reason why an end cannot be made to this long drawn out controversy, by determining what is a just allowance to be made to the applicant for her expenses in the support and education of the child and three stepchildren, who were minors at the time the account was filed. On the settlement of the accounts of the appellant as guardian of Elizabeth, such an allowance was made by agreement, and $500 a year was allowed for board and care. In consideration of all the evidence, we think a just and reasonable allowance for the support, education, and maintenance of the four infants would be $15,000, and we therefore make such allowance. The accounts should be modified by deducting from the amount chargeable to appellant: A. The amount paid to Solomon... B. Amount uncollected accounts. C. Loss in business after October 4, 1908. E. Allowance from income.. The executor has already accounted as guardian of Elizabeth... Total deduction ..$ 1,827.93 7,464.46 2,983.73 15,000.00 4,031.80 $31,307.92 Interest on said amounts from November 4, 1910, to June 29, 1916, at 6 per cent., was charged against the executrix on the whole balance, including the above amounts. Interest on the allowance for the same time and at the same rate should be computed 10,618.60 The executrix has been charged interest on a sum which she has paid to Elizabeth. This is error. It is unimportant as the decree was drawn, but, as modified, it will introduce error, if not corrected Making a total allowance of 5,378.14 $47,304.66 The decree should be modified in accordance with the opinion, and, as modified, affirmed, without costs. Settle order. All concur. (188 App. Div. 949) PEOPLE v. TEIPER. (Supreme Court, Appellate Division, Fourth Department. May, 1919.) On rehearing. Order of reversal amended. For former opinion, see 186 App. Div. 830-844, 175 N. Y. Supp. 197. PER CURIAM. Motion granted, and order of reversal amended, so as to read as follows: "Judgment of conviction and order reversed, and new frial granted. The said reversal and granting of a new trial are ordered for errors of law, and as a matter of discretion; the verdict against defendant being against the law, and justice requiring a new trial. Opinion by Kruse, P. J. All concurred, except Foote, J., who dissented in a memorandum, and De Angelis, J., not voting." (178 N.Y.S.) Held, the judgment of conviction was reversed for the reasons set forth in the opinion. The order as drawn inadvertently limited the grounds of reversal, and practically withdrew most of those stated in the opinion. The order should be amended to conform to the opinion. See 186 App. Div. 830-844, 175 N. Y. Supp. 197. (108 Misc. Rep. 96) PEOPLE v. LOWENDAHL. (Court of General Sessions, New York County. July, 1919.) 1. CRIMINAL LAW250 - DISORDERLY CONDUCT TENDING TO BREACH OF PEACE NOT A "CRIME." On proof that defendant, while a passenger on a train en route to New York City, uttered certain seditious remarks, the Magistrate's Court in that city, before whom he was charged with disorderly conduct tending to a breach of the peace, in violation of the New York City Consolidation Act 1882, §§ 1458, 1459, had no jurisdiction to summarily adjudge defendant guilty and impose sentence, under Code Cr. Proc. § 137, giving jurisdiction to courts of any county through which train passes if a crime is committed on a railway train, etc., as disorderly conduct, tending to a breach of the peace, is not a "crime." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Crime.] 2. CRIMINAL LAW 250-CITY MAGISTRATE, ON COMPLAINT FOR DISORDERLY CONDUCT TENDING TO BREACH OF PEACE, SHOULD HOLD ACCUSED FOR DISORDERLY CONDUCT. Where City Magistrate had no jurisdiction, under Code Cr. Proc. § 137, of a case of disorderly conduct tending to a breach of the peace, in violation of the New York Consolidation Act 1882, §§ 1458, 1459, based on defendant's seditious remarks on a train en route to New York City, the magistrate should have entertained a complaint for disorderly conduct under Penal Law, § 720, making it a misdemeanor to use disorderly language annoying passengers on railroads, etc., for purpose of holding him for trial in Court of Special Sessions. Knur Joel Lowendahl appeals from a judgment of conviction in a City Magistrate's Court of disorderly conduct tending to a breach of the peace. Reversed, and defendant remanded to City Magistrate's Court. Frederick J. Sullivan, Asst. Dist. Atty., of New York City, for the People. Emil E. Fuchs, of New York City, for defendant. ROSALSKY, J. The defendant above named was adjudged guilty in the Tenth District City Magistrates' Court, Borough of Manhattan, of disorderly conduct tending to a breach of the peace, and he was sentenced to the workhouse for the definite period of six months. The record of the proceedings in the court below shows that on the 25th day of September, 1918, the defendant was a passenger on the Empire State Express of the New York Central Railway, bound for New York, and that while on said train, and prior to having reached the county of New York, the defendant uttered certain seditious remarks, for which he was apprehended when the train reached 125th street in the borough of Manhattan. T For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes [1] The principal question to be decided on this appeal is whether section 137 of the Code of Criminal Procedure is applicable to a case of disorderly conduct tending to a breach of the peace, in violation of sections 1458 and 1459 of the Consolidation Act (Laws 1882, c. 410). Section 137, supra, provides as follows: "When a crime is committed in this state, in or on board of any railway engine, train or car, making a passage or trip on or over any railway in this state, or in respect to any portion of the lading or freightage of any such railway train or engine car, the jurisdiction is in any county through which, or any part of which, the railway train or car passes, or has passed in the course of the same passage or trip, or in any county where such passage or trip terminates, or would terminate if completed." As it will be observed, section 137, supra, vests jurisdiction in the courts of New York county if a crime is committed on a railway train, etc. Under the Penal Law, crimes are divided into felonies and misdemeanors. The courts have held that disorderly conduct tending to a breach of the peace is not a crime. In People ex rel. Burke v. Fox, 205 N. Y. 490, 90 N. E. 147, the Court of Appeals held that disorderly conduct, which in the opinion of the magistrate tends to a breach of the peace, is an offense against a police regulation, but is not a "crime," in the strict sense of that term as used in the Code of Criminal Procedure. In Steinert v. Sobey, 14 App. Div. 505, 507, 508, 44 N. Y. Supp. 146, 148, Chief Justice Cullen said: "But, whatever be the correct and accurate definition of the word 'crime,' I think that it is not used in the Code of Criminal Procedure in a sense broad enough to include petty offenses subject to summary convictions by a magistrate. In the Code crimes are divided into felonies and misdemeanors, and no provision is found for the trial of either before a magistrate, as such. * * It thus appears that, however inaccurate or illogical the distinetion may be, summary proceedings for petty offenses leading to disorder have been considered, not as prosecutions for crimes, but for offenses against police regulations." [2] Upon the evidence the learned magistrate had no authority to make a summary disposition of the case against the defendant; but he should have entertained a complaint of disorderly conduct, as provided in section 720 of the Penal Law (Consol. Laws, c. 40), which makes it a misdemeanor for "any person who shall by any offensive or disorderly act or language, annoy or interfere with any person in any place or with the passengers of any public stage, railroad car, ferry boat, or other public conveyance, or who shall disturb or offend the occupants of such stage, car, boat or conveyance, by any disorderly act, language or display, although such act, conduct or 'display may not amount to an assault or battery." Had the magistrate acted under section 720, supra, he would have had jurisdiction of the charge against the defendant, for the purpose of holding him for trial in the Court of Special Sessions. For the reasons herein stated, the judgment of conviction must be reversed, and the defendant is remanded to the City Magistrate's Court, so that a proper charge may be formulated against him. Judgment of conviction reversed, and defendant remanded to the City Magistrate's Court. Judgment reversed. , (108 Misc. Rep. 102) (178 N.Y.S.) In re MANCINI, (Surrogate's Court, Montgomery County. July, 1919.) 1. BASTARDS 3-LEGITIMACY FROM MARRIAGE OF PARENTS PRESUMED. Where parents of boy, 6 years of age in May, 1919, 3 months before his birth agreed to get married, and mother knew that father was furnishing a house, so that they might live there as husband and wife, and was known by his name, and bore him another child, the presumption is that boy, who is and had been living with his maternal grandparents in same city as his father, is legitimate. 2. GUARDIAN AND WARD OF SURROGATE'S COURT. 10-APPOINTMENT OF FATHER WITHIN JURISDICTION Petition of the father of a boy under the age of 14, and presumptively legitimate, to be appointed his guardian, may be granted by Surrogate's Court, under Code Civ. Proc. §§ 2510, 2643, 2649, though the mother, who was married to another in 1915, opposes the application. 3. GUARDIAN AND WARD 13(7)-APPOINTMENT OF FATHER SHOULD PROVIDE FOR ACCESS TO BOY BY MOTHER. An order appointing father of a boy under age of 14 years, presumptively legitimate, as his guardian, should provide that the mother, though since married to another, should have access to the boy at such times and in such manner as may be proper for his best interests. Application by Jerry Mancini to be appointed guardian of John Mancini, his infant son under the age of 14 years. Application granted, on condition of security, etc. Christopher J. Heffernan, of Amsterdam, for petitioner. SPONABLE, S. This matter comes before the surrogate on the petition of the father, Jerry Mancini, to be appointed the guardian of the person of John Mancini, an infant, aged 6 years in May, 1919. The application is opposed by the mother of the infant, Mary Delos Denton, now the wife of Ernest Denton, to whom she was married on November 29, 1915, and with whom she resides at 158 Forbes street, Amsterdam, N. Y. The petitioner, the father of the infant, also resides in the city of Amsterdam, N. Y. The infant is now, and has been for some time past, living with its grandfather and grandmother, Peter Delos and Louisa Delos, the father and mother of the mother of said infant, on Forbes street in the city of Amsterdam, N. Y. The Surrogate's Court has power to appoint a guardian for this infant upon such an application as has been made in this proceeding. Code Civ. Proc. §§ 2510, 2643, 2649. "The Surrogate's Court has the like power and authority to appoint a general guardian of the person or of the property, or both, of an infant, which the chancellor had, on the thirty-first day of December, eighteen hundred and forty-six. It has also power and authority to appoint a general guardian, of the person or of the property, or both, of an infant whose father or mother is living, and to appoint a general guardian of the property only, of an infant married woman. Such power and authority must be exercised in like manner as they were exercised by the Court of Chancery, subject to the provisions of this act." Code Civ. Proc. § 2643. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 1 It seems that chapter 742 of the Laws of 1907, amending the Domestic Relations Law (Laws 1896, c. 272), again made commonlaw marriages in this state valid. Matter of Hinman, 147 App. Div. 452, 131 N. Y. Supp. 861, affirmed 206 N. Y. 653, 99 Ν. Ε. 1108; Meister v. Moore, 96 U. S. 76, 24 L. Ed. 826; Matter of Smith, 74 Misc. Rep. 11, 133 N. Y. Supp. 730; Matter of Reinhardt, 95 Misc. Rep. 413, 160 N. Y. Supp. 828; Matter of Ziegler v. Cassidy's Sons, 220 Ν. Υ. 98–111, 115 Ν. Ε. 471, Ann. Cas. 1917E, 248. Keeping in mind the fact that the question in this case should be determined, so as to promote the interests and for the welfare of the infant, it might be well before discussing the facts to briefly consider the rules of law heretofore applied in disposing of similar questions. In Tracy v. Frey, 95 App. Div. 579, 88 N. Y. Supp. 874, in which the leading cases upon marriage and legitimacy of children are cited and discussed, the court says: * * * "In the absence of proof, the presumption is of marriage arising out of cohabitation in the apparent relation of husband and wife, of the innocent and lawful character of such relationship and of the legitimacy of children which are the fruit of such a union. In no branch of the law is the presumptive rule more rigidly enforced. The relation in its inception was meretricious, and although there was no proof of any ceremonial marriage or other contract of marriage thereafter, yet, as the parties continued to cohabit together, and declarations were made, it was held that a marriage subsequent to the commencement of the illicit relation would be presumed, and that a finding of a subsequent contract of marriage between the parties would be upheld, although there was no direct proof establishing the same." Also: * * "Where it is admitted that the cohabitation of the parties is illicit in its origin, the presumption is that it so continues, and before it can be characterized as a lawful relation proof is required of such acts and circumstances as indicate that the relation has ceased to be illicit and become matrimonial." The case above cited quotes Judge Vann, in Gall v. Gall, 114 N. Y. 109, 21 N. E. 106, in speaking upon this subject: "It is sufficient if the acts and declarations of the parties, their reputation as married people, and the circumstances surrounding them in their daily lives, naturally lead to the conclusion that, although they began to live together as man and mistress, they finally agreed to live together as husband and wife." "The presumption of marriage, from a cohabitation apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence." Matter of Hynes v. McDermott, 91 N. Y. 451-459 (43 Am. Rep. 677). The presumption is that John Mancini is a legitimate child. Matter of Biersack, 96 Misc. Rep. 163, 159 N. Y. Supp. 519. [1,2] In making the application of rules of law above cited, unless it has been shown by the facts in the case before me that Jerry Mancini, the father, is incompetent to act as guardian, what must be the logical conclusion? Would this court be promoting the interests |