MURDER- Continued.

Trial for-sufficiency of evidence — competency of evidence tending to
show intent, deliberation and premeditation.

See CRIMES, 14, 15.

Trial for

-

- when premeditation question for jury-when evidence
when evidence as

of preceding crime admissible - dying declarations

to finding weapons admissible.

See CRIMES, 16-19.

Trial for

-

sufficiency of evidence-time as element of premedita-

tion and deliberation.

See CRIMES, 20, 22.

NEGLIGENCE.

1. Proximate cause of accident. There may be more than one proximate
cause of an accident, if each of the causes asserted can be seen to have
been an efficient one, without which the injury resulting would not have
been sustained. If the negligent acts of two or more persons concur in
contributing to an accident, the injured person may hold them, jointly
and severally, liable. Where concurrences in causes are charged the test
is, simply, could the accident have happened without their co-operation.
Sweet v. Perkins.

482

2. Highways-Improper use thereof by abutting landowner. The owner
of the fee of the soil of a highway appropriated for the public easement
is entitled to make a temporary use of the highway, if reasonably necessary
for the proper utilization and enjoyment of his abutting property, pro-
vided that such use in no wise obstructs or encroaches upon public
rights, or endangers the safety of travelers. If the use results in such
obstruction of, or danger to, the public right of user, it is a nuisance in
the eye of the law. The whole of the highway, as laid out and appro-
priated, is for the public use, and it is immaterial that but a part of it has
been worked by the authorities. The rule relating to encroachments on
highways is not confined in its operation to the track beaten by travelers;
it embraces all parts of the highway.

Id.

See Olsen v. Met. St. Ry. Co. (Mem.), 504; Jolliffe v. Miller (Mem.),
504; Murphy v. Hudson River Telephone Co (Mem.), 505; Bern-
reither v. City of New York (Mem.), 506; Kiley v. Jones (Mem.),
537; Brown v. N. Y. C. & H. R. R. R. Co. (Mem.), 542; Greco V.
Pratt Chuck Co. (Mem.), 543; Phenix Ins. Co. v. N. Y. C. & II.
R. R. R. Co. (Mem.), 554; Smith v. N. Y. C. & H. R. R. R. Co.
(Mem.), 560; Potter v. Gilbert (Mem.), 576.

Construction of provision of Labor Law requiring that "machinery of
every description in factories should be guarded — accident from s
necessary and obvious danger.

See MASTER AND SERVANT, 2, 3.

NEW YORK (CITY OF).

1. Eminent domain — Payment of interest on land taken by city prior to
completion of condemnation proceedings. The provisions of the Greater
New York charter (L. 1901, ch. 466, § 990), relating to the payment of
interest in cases where the city appropriates land prior to the conclusion
of condemnation proceedings, involve the payment of compound interest
by the city from the date of the commissioners' report. Where, however,
a supplemental report was made by the commissioners making the award
to unknown owners, held, that interest on the value of the land should be
calculated to the date of the second report, and such interest, together
with the value of the land, should become a new principal on which the
landowner should be awarded interest until the payment of his claim by
the city. Matter of Mott Haven Canal Docks.

175

2. Limit of indebtedness under State Constitution (art. 8, § 10)— What
should be comprehended by term_“ real estate." In an action to restrain
the authorities of the city of New York from committing the city to
certain proposed contracts for the construction of public improvements
upon the ground that thereby the provisions of the Constitution of the
state contained in section 10 of article 8, which prohibits any city from
becoming indebted to an amount which shall exceed ten per cent of
the assessed valuation of its real estate would be violated, held that
in computing the indebtedness of the city this section of the Constitu-
tion must be deemed to comprehend within the term “real estate" all
properties which the statute makes taxable as such. At common law
franchises partook of the nature of realty and by the Tax Law special
franchises are classified as real estate; hence they are properly included
as part of the real estate which is valued for assessment purposes. Levy
v. McClellan.

178

3. Funded and temporary indebtedness. In ascertaining the limit of the
city's capacity to become further indebted the constitutional provision may
properly be read as contemplating a permanent or funded debt to be
paid by future taxation, and a temporary indebtedness for current
expenses to be liquidated from taxes levied for the year.

ld.

4. When revenue bonds should not be included in computing indebtedness.
In ascertaining the limit of the city's capacity to become further indebted,
there should not be included in the computation revenue bonds, issued
under section 187 of the city charter to meet expenditures under the
appropriations for each current year and to be redeemed out of the pro-
ceeds of the tax levy, when such bonds have not been outstanding for
more than five years since their issue, nor should such computation
include revenue bonds issued under said section for purposes other than
to meet expenditures under the appropriations for each current year and
which are redeemable out of the tax levy for the year next succeeding
the year of their issue.

Id.

5. Assessment bonds. Assessment bonds issued to pay the cost of local
improvements are issued upon the faith and credit of the city alone,
when due are payable directly, are the absolute and unqualified obli-
gations of the city and the lien of the city upon the property can be
regarded only as a general asset.

ld.

6. General fund bonds. The general fund bonds issued under section
222 of the charter are to be classified with the city's corporate stock, as
the faith and credit of the city are pledged for the fulfillment of their
obligation. When held by the sinking fund they are the subject of
deduction, in the computation of the permanent debt, with other sinking
fund holdings.

Id.

7. Land liability. The amount of the "land liability" of the city which
includes the amount owing to the owners of private property taken for
public use is to be included in a permanent debt. The owners are
entitled to recover the value of the land, with interest, from the city
which has become vested with the title and possession, on proceedings
taken by the municipal authorities.
Id.

8. County bonds. Bonds issued by the counties prior to the con-
solidation are not to be included in the computation of the city's
indebtedness.
Id.

9. Water bonds. Bonds issued to provide for the supply of water
after January 1, 1904, are not to be included in ascertaining the power of
the city to become indebted, but this deduction does not include such
bonds as were used after that date to pay debts incurred prior thereto. Id.

NEW YORK (CITY OF) - Continued.

10. What should be deducted in ascertaining city's permanent debt. In
ascertaining the city's permanent debt there should be deducted from
its total indebtedness the following: holdings of bonds by certain of the
sinking funds, other than those not included in computing the city's
indebtedness; cash in the sinking funds; the annual installment included
in the budget for the current year required to be paid into the sinking
fund; bonds payable the current year, provision for which was made in
the budget of the year; cash in the treasury from unallotted proceeds
of bonds and cash on hand applicable to the discharge of contract
liabilities.
Id.

Since the purpose

11. Liability upon contracts for public improvements.
of the constitutional provision in question was to prevent municipalities
from improvidently contracting debts for other than ordinary current
expenses of administration and to restrict their borrowing capacity so
as to prevent extravagance in city expenditure, existing indebted-
ness" must, in ascertaining the margin of the city's constitutional debt
limit, be regarded as including the city's liability upon contracts for
public improvements under section 149 of the charter, which is intended
to be met from an issue of bonds.
Id.
12. Unliquidated and disputed claims. Unliquidated and disputed
claims pending against the city should not be included as a part of the
city's existing indebtedness So far as they may be ultimately reduced
to judgment, they will be payable from the proceeds of special revenue
bonds, which do not enter into the constitutional purview of an existing
indebtedness.

Id.

13. Water bonds held in sinking funds. The availability, however, as an
offset to the general indebtedness of the city, of water bonds issued by the
city since the new Constitution and held in the sinking funds, depends upon
the particular sinking fund in which such bonds are held, and not on the
character of the bond. If they or other bonds are held in the special
sinking fund created by section 208 of the charter, or in any sinking fund
which is by law especially created to discharge indebtedness which, under
the Constitution, is not to be reckoned in ascertaining the city's debt, then
they cannot be treated as an offset against the general city debt; other-
wise, they should be so considered.

Id.

14. Removal of borough president by governor on charges - Constitutional-
ity of statutory provisions relating thereto. The statutes providing for the
removal of a borough president by the governor on charges, after an
opportunity to be heard in his own defense, do not conflict with the home
rule provisions of the Constitution or violate either the letter or spirit of
those provisions which guarantee the principles of local self-government,
and are constitutional and valid. The obligation rests on the courts both
to assume that legislation was not intended to beget absurdities, and to
exhaust the limit of legitimate construction before affixing to it any such
consequences. The principles ordinarily governing the interpretation of
statutes command the courts to favor a construction which is most agree-
able to reason and justice, to consider the entire statute and to give effect
to every clause and part thereof, thus securing a consistent and har-
monious whole and to avoid a construction which would leave any pro-
vision of the statute without effect, or which would result in a virtual
repeal by implication of one provision by another. People v. Ahearn. 221

15. Filling vacancy occasioned by removal for cause. It is not only
reasonable, but legally justifiable, to believe that in enacting the provision
relative to filling a vacancy in the office of borough president, from which
an incumbent had been removed for cause, the legislature had clearly in
mind the earlier one relative to removal, and that in giving the power
of appointment it intended to authorize the appointment of proper per-

NEW YORK (CITY OF) - Continued.
sons, and did not intend to include the power to select a person just found
to be otherwise and, therefore, removed.

Id.

16. Construction of statutes. While statutes of the character designated
are to be construed with strictness in favor of a defendant, still they are
subject to rules of construction which are reasonable under the surround-
ing circumstances, and they are not wholly exempt from the application
of the principle that the means may be fashioned somewhat to the end,
and that the letter is to be read somewhat in the light of the purpose to be
accomplished.
Id.

-

17. Construction of provision for removal · Invalid reappointment.
Keeping in mind the purpose of the statute, the provision for removal
should be construed as meaning a permanent and lasting ouster for
the remainder of the term of the incumbent from the office which he
has been filling, and whose obligations he has been found unable or
unwilling to discharge. It should not be construed as contemplating a
removal which might be turned into a merely temporary suspension by
the immediate appointment to the vacancy caused by the removal of
the very person who had just been removed.

Id.

18. Same. The provision of the Constitution relative to removal should
be reasonably construed in view of the object sought to be accomplished.
The manifest purpose was to provide a summary way for removing from
office for the remainder of his term an unworthy official, and the gov
ernor was selected as the representative of the people to exercise this
important power after the defendant had been afforded a reasonable
opportunity to be heard in his defense. This power to remove was
undoubtedly limited in its exercise to the balance of the term to prevent
any interference with the right of the borough electors to elect a suc-
cessor after the expiration thereof.

Id.

19. Same. The statute should receive that liberal construction which
will effectuate the purpose to be fairly attributable to the legislative
enactment. The power to remove from the office, as the result of pro-
ceedings under the statute, coupled with the power conferred to fill the
vacancy caused by the removal, negatives the person's right to be rein-
stated in the office during the term for which he had been elected. Id.

See People ex rel. Krekeler v. Butler (Mem.), 518; Matter of Sea Beach
Ry. Co. (Mem.), 533.

When certificate of police surgeon not conclusive evidence of disability
of member of police force - remedy by mandamus.

See POLICE, 1, 2.

Effect of ordinance permitting street railroad company to construct rail-
road and tunnel the city streets forfeiture of franchise for failure to
complete_road-legal status of franchise determined only in litigation
between People and claimants thereto.

See RAILROADS, 1-3.

When public service commission without authority to refuse permission
for construction of railroad in city street.

See RAILROADS, 4.

NOTICE.

-

Of sale for taxes - sufficiency - sufficiency of proof of service of notice
- when comptroller's certificate evidence of due service of notice to redeem.

See REAL PROPERTY, 2, 4, 9.

NUISANCE.

Encroachment on highway.

See NEGLIGENCE, 2.

OFFICERS.

Removal of borough president by governor on charges-constitution-
ality of statutory provisions relating thereto - filling vacancy occasioned
by removal for cause construction of provision for removal-invalid

reappointment.

-

See NEW YORK (CITY OF), 14-17.

PARENT AND CHILD.

See Kahn v. Kahn (Meṁ.), 525.

Right of infant husband to his earnings as against his father.

See HUSBAND AND WIFE, 2.

PARTIES.

See Elmore & Hamilton Contracting Co. v. State (Mem.), 531; Matter
of City of New York (Mem.), 565.

Parties to action against surety upon bond given by agent receiving
money for transmission abroad.

See PRINCIPAL AND SURETY.

PARTITION.

See Adams v. Bristol (Mem.), 510; Griffin v. McMahon (Mem.), 514.
PAYMENT.

Of taxes - when involuntary.

See TAX, 15.

PENAL CODE.

1. § 351 - Bookmaking — Insufficiency of information. An information
charged the person arrested thereon with laying odds and publishing the
same, but was not intended to, and did not, charge that such laying odds
and publishing was by any writing or printed instrument, but that it was
oral. Held, that such information did not allege acts which constitute
the crime of bookmaking within the meaning of section 351 of the Penal
Code (section 986, Penal Law, Consolidated Laws), which provides that
any person who engages in bookmaking is guilty of a misdemeanor and
prescribes the penalty therefor. People ex rel. Lichtenstein v. Langan, 260

2. § 587-Crimes - Transfer of check with intent to defraud creditors.
Defendant was indicted under section 587 of the Penal Code (Penal Law,
1171) for transferring a check payable to his order to a relative, with
intent to defraud creditors. Upon the trial a petition presented to the
court in bankruptcy proceedings against defendant, which petition was
made several months after the alleged commission of the crime, and
stated facts prejudicial to him, but not relating specifically to the crime
for which he was on trial, was received in evidence upon the ground
that defendant's counsel had upon cross-examination "opened the door"
by inquiry with reference to the petition from one of the People's wit-
nesses, who avowed his ignorance of its contents. Held, that the petition
was not competent evidence, and that although the trial judge instructed
the jury on receiving it that it was not competent to establish the state-
ments contained therein, his language to the jury on their request for
instructions permitted the jurors to consider it for a purpose for which it
could not properly be considered, and rendered its erroneous admission
prejudicial to defendant; further, that it does not appear that the petition
was admissible for any purpose. People v. Schlessel.

PENAL LAW.

$ 986. See PENAL CODE, 1.

§ 1171. See PENAL Code, 2.

476