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and value, and should be carefully provided for the race tracks and grounds of incorporated All of this work must be completed at this ses racing associations during thirty days of each sion of the Legislature, because the new courts year, and thus permitted, upon those tracks and are required to go into operation on the ist of grounds alone, the acts which remain criminal January, 1896. The necessity of early and sus- in all other parts of the State. The revised tained action on this subject is therefore appa- Constitution, section 9 of Article I, adds to the rent. It is of special importance that the divi- old provision against lotteries a provision that sion of the State into four judicial departments neither pool-selling, bookmaking, nor any other should be made at the earliest date possible, in kind of gambling, shall hereafter be authorized order that I may discharge the duty which the or allowed within this State, and requires the Constitution imposes upon the governor, of Legislature to pass appropriate laws to prevent designating the justices of the Supreme Court offences against any of the provisions of the who shall constitute the appellate division in the section. It is well understood that this proseveral departments. It is important that these vision is aimed at the race-track gambling perjustices should be selected and assigned before mitted by the statute of 1887, above mentioned, the legislative session closes, so that they may and the Legislature, in obedience to the will consult together and advise the Legislature as to of the people thus expressed, should, without what action, on its part, is necessary for the delay, expunge the obnoxious law from the successful inauguration of the new system. As statute books. the justices are to have the responsibility of

4. The provisions of law establishing civil making a practical working court, their advice service boards and examinations in this State and assistance should be had in respect to the have hitherto had only legislative and not conperfection of the details, while there is still stitutional sanction. The Court of Appeals time for their views to receive practical and ef- has held that, in view of the express powers fective attention.

conferred by the Constitution upon the superin“2. Section 2 of Article XII, of the revised tendent of public works and the superintendent Constitution requires that the Legislature shall of State prisons, the Legislature had no authority provide for the giving of public notice and to subject the appointments made by those

It is believed opportunity for a public hearing, concerning officers to civil service rules. every special city law, in every city to which it that the civil service provision authorized in relates, before the mayor of such city accepts or

the revised Constitution as section 9 of Article refuses to accept the bill. Such provision seems V, obviates this difficulty and permits the Legisto be prerequisite to the passing of special city lature to extend the civil service rules to the laws, and as a number of new laws are by

State prisons, the canals, and other public general consent urgently and speedily required works of the State. for the city of New York, the provision for “5. Upon a separate submission of section 10 hearings before the mayor ought to be made i of Article VII the people have, by a majority by the Legislature at the earliest possible date of about 115,000, much larger than that cast Provision is made in this section for the classi- for any other amendment, declared their will fication of cities into three legislative classes, that the canals shall be improved in such on the basis of the latest official enumeration manner as the Legislature shall provide by of their populations. Your attention is required law. to give this amendment its intended effect.

6. The new provision of section 1 of Article 3. The Penal Code of this State contains IX requires the Legislature to provide for the numerous and apparently sufficient provisions maintenance and support of a system of free against gambling. Among these provisions, common schools, wherein all the children of the section 351 makes pool selling and bookmaking State may be educated. That is now far from upon races criminal offences. By chapter 479 being the case, and the Legislature ought to of the Laws of 1887 (commonly known as the take immediate steps to fulfil this mandate. Ives Pool bill), the Legislature exempted from Special investigation should be made to ascerthe operation of the above mentioned section tain what children may be cut off from educa

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tional facilities by force of the new provision tor,” and by the Hon. Z. C. Lincoln of Little of section 4 of Article IX.

Valley, who has recently been appointed legal 7. Section 29 of Article III requires the adviser to the governor and a member of the Legislature to provide by law for the occupation Statutory Revision Committee, on “Citizenand employment of prisoners in the State ship and Right of Suffrage.” During the meetprisons, and as the same section prohibits a con- ing in the morning there will also be a discustinuance of the present system of employment sion by the members of the association on after the ist of January, 1897, no time should “What Legislation is Necessary to Carry Out be lost in considering how the Legislature shall the Provisions of the New Judiciary Article." obey this mandate.

After the morning session the association will “8. The prohibition against selling the On- entertain its members and guests at luncheon at ondaga salt springs has been abrogated. These the Fort Orange club. In the afternoon papers springs are a constant source of useless and, will be read by Ralph Stone, Esq., secretary of therefore, unjustifiable expense to the State, the Michigan Bar Association, on “ The Work and the disposition to be made of them ought of Bar Associations;" by J. Newton Fiero, to be promptly considered and determined.

Esq., on “ David Dudley Field and His Work;" "9. Extensive improvements in the agricul- by Emory P. Chase of Buffalo, on “Stenotural regions of the State are understood to be graphers' Fees;" Almet F. Jenks, formerly corwaiting only for the Legislature to give 'effect poration counsel of Brooklyn, on “The Liato the new provision in section 7 of Article I, bility of Municipal Corporations for Damages which provides for the passage of general drain- Caused by Contamination of Their Water Supage laws, to which I make reference elsewhere. ply.” The discussion in the afternoon will be 10. The new provisions contained in sec

devoted to the subject “Should the Code of tions 11 to 15 of Article VIII require the Leg- Civil Procedure be Revised, Condensed and islature to provide for a general system of visi- Simplified?” In the afternoon a reception will tation and inspection of charitable institutions, be tendered by the association to the judges of insane asylums and prisons, and for the regula- the Court of Appeals and justices of the Sution of public aid to charitable and correctional preme Court at the Kenmore hotel. The institutions, wholly or partly under private con- papers, as well as the subjects of discussion trol. These requirements are aimed at grave at the meeting, should make it most attractive existing abuses, and should be promptly com

and interesting to those members who will be plied with."

fortunate enough to be present, and it is hoped

that many practical results will follow, especThe 18th annual meeting of the New York ially in the simplification and revision of the State Bar Association will take place at Albany Code of Civil Procedure, which is at present as on Tuesday and Wednesday, January 15-16, unwieldy and tautological as any such instru1895. The first meeting will be held in the ment well could be. Assembly Chamber at 8 o'clock on Tuesday evening and will be opened by the president's Governor Morton has received over fifty resaddress. delivered by Tracey C. Becker of ignations of notaries public who are anxious to Buffalo, following which will be an address by vacate their offices so as to make use of passes the Hon. John F. Dillon of New York city, on which they have heretofore had.

The secretary “ Property, its Rights and Duties in Our Legal of State has also refused to sign the passes for and Social System," after which an informal the railroad commissioners on the ground that reception will be tendered to Judge Dillon in free transportation of any kind is denied to any the Assembly parlor. On Wednesday morn- public officer by section 5 of Article XIII of ing, January 16, the association will meet in the new Constitution. The section under the City hall at 10 o'clock. During the morn

which this action has been taken is as follows: ing papers will be read by Rowland Cox on 'No public officer or person elected or ap“ The Law of Trade Marks;” by William B. pointed to a public office under the laws of this Davenport of Brooklyn, on “Some Curious In-State shall, directly or indirectly, ask, demand, cidents in the Work of a Public Administra- I accept, receive or consent to receive, for his own use or benefit or for the use or benefit of “ In view of the statute to which we have another, any free pass, free transportation, referred, the limitation of the provision comfranking privilege, or discrimination in passen- manding a public officer not to accept or reger, telegraph or telephone rates from any perceive a pass or free transportation for his own son or corporation, or make use of the same use or benefit' is significant. The office of the for himself or in conjunction with another." word 'own' when following a possessive pronoun, The question at once arises as to whether a pub- is to emphasize or intensify the idea of peculic officer who is a director, agent, or employe | liar or personal interest. It suggests, what was or any corporation can accept any pass or undoubtedly the intention of the framers of other similar privilege from the body corporate this constitutional provision, that the practice in which he is interested. The language used

The language used of giving passes to public officers for their inin the Constitution contains no exception in dividual use, and to save them from personal the case of such official, and the only ground expense, should be stopped, but the powers on which a proposition that a director who is a of the Legislature to provide for the necespublic officer can accept a pass can be main-sary traveling and other expenses of pubtained is, that the pass or free transportation is lic officers while engaged in public business part of the salary or compensation of the officer should not be abridged. This provision of the

Constitution must not only be construed in the or employe of the railroad, or that the pass

is used for a public purpose.

It has been consid- light of existing statutes, but it will be preered a privilege rather than the compensation of them. Section 168 of the general railroad

sumed that it was drafted with full recognition of the director to use passes over his own road, law provided that neither the railroad comand incidentally to receive certain considera

missioners, nor their secretary, clerks, agents, tions of a like kind from other roads. The

employes or experts should accept, receive or spirit of the law, however, can be easily controverted and nullified by every corporation who request any pass from any railroad in this

State, for themselves or any other person. will probably receive from its officer or employe Section 169, on the other hand, declared that money in return for his transportion, and who such officers, in the discharge of their official will afterwards repay the moneys so spent to

duties, should be transported over the railroads the officer or employe as part of his salary. In

of this State free of charge upon passes signed view of this subterfuge, it seems almost unne

by the secretary of sta In short, the statute cessary to discuss the proposition which is being prohibited the public officers named from acdiscussed, for a determination of the question, cepting passes for their own use, but authorized if favorable to the director or employe, will

them to use a pass issued by the secretary of simply prevent much annoyance and trouble to

state for the public use. So this provision of the corporation. Under a strict interpretation the constitution prohibits these as well as all of the law, it does not seem possible that even other public officers from accepting free passes the Hon. Chauncey M. Depew, president of the for their own use or berefit, but it does not New York Central road and regent of the Uni- prohibit them from accepting passes from the versity of the State of New York, can accept secretary of state providing for their transporany pass or free transportation over the New tation while engaged in public business, as it York Central road, or of any other company. certainly would do so if it were intended to But, like the present efforts to secure intact the annul the provision of section 169 relating to gold surplus, it will be easy enough for Hon. that subject. Other reasons might be presented Chauncey M. Depew to take money out of one tending to show that the provisions of section pocket and receive it in another. There is no

169 are not condemned by the section of the doubt that the idea of the members of the Con

Constitution, relating to passes, but as the one stitutional Convention was to prevent the use given seems to be fully adequate, a further disof passes by State officers, and it was against cussion will not be indulged.” such officers rather than against the directors and employes of the road that the measure was One exception to the sweeping provisions of adopted.

the Constitution prohibiting State officials from

using passes has been made by the decision of nized by the railroads affected by them. But Judge Alton B. Parker, of Kingston, in grant- the application made to the secretary of State ing the writ of mandamus compelling the sec January 2, 1895, to issue passes, in accordance retary of state to issue passes to the State rail- with the statute, was refused, the reason asroad commissioners and the employes of that signed being that section 5 of Article XIII of department. The decision is based on the the Constitution of the State of New York, theory that while the Constitution prohibits a which went into effect January 1, 1895, proState official from accepting a pass “for his hibits the issuing of such passes. It reads: own use or benefit," chapter 353 of the Laws ‘No public officer, or person elected or apof 1882, authorizes the railroad commissioners pointed to a public office under the laws of this and their employes to use passes issued by the State, shall directly or indirectly ask, demand, secretary of State for the public use. Judge accept, receive or consent to receive for his own Parker's decision is as follows:

use or benefit, or for the use or benefit of an“By chapter 353 of the Laws of 1882, the other, any free pass, free transportation, frank

ing privilege or discrimination in passenger, Legislature created a board of railroad commissioners, and defined and regulated its powers

telegraph or telephone rates, from any person

or corporation or make use of the same himself and duties. In addition it assumed by that act

or in conjunction with another.'" the authority to assess upon the railroads of this State a sum not to exceed $50,000 a year

COVENANTS IN A LEASE FOR YEARS. to defray the salaries of the commissioners and pay the necessary expenses of the board. By

(Copyright reserved by the author.) the same act it undertook to provide that, in Sec. 1. Covenants usually inserted in the lease addition to the $50,000, the actual and neces

on part of lessee.

2. Same Same -- English rule. sary cost of transportation upon all railroads

3. Same Same Same Lord Eldon's actually visited or inspected by the commis

view. sioners, their officers, clerks, experts and 4. Same — Same -- Rule of property. agents, in the course of a due performance

5. Same ---Same — Covenant to pay rent.

6. Same of the duties enjoined by law, should be

Same — Covenant to pay taxes.

7. Same Same - Covenant to insure premborne by the railroads so visited or inspected.

ises. To accomplish this result the Statute provided 8. Same -- Same - Covenant as to use of that in the discharge of the duties of their of


9. Same -- Same fice they should be transported over the several

Covenant not to assign

or underlet. railroads in the State of New York free of

10. Same -- Same Covenant to deliver in charge, upon passes signed by the secretary of

good repair. state; they may employ or take with them ex- 11. Same -- Same Covenant against waste. perts or other agents whose services they may

12. Same -- On part of assignee and sub

lessee. deem to be temporarily of importance, and who shall also be transported while on such duty, § 1. Covenants usually inserted in the lease free of charge upon passes signed by the secre- part of lessee.— The usual covenants on the part of tary of state, From the time of the appoint- the lessee are to pay rent, to pay taxes, to insure ment of the railroad commissioners under the the premises, not to assign or underlet without leave, act referred to, down to January 2, 1895, the the premises and fixtures in good repair at the end

not to carry on an offensive trade, and to deliver up commissioners have proceeded in the discharge of the term. Many of these covenants on the part of the duties by law commanded; the sums

of the lessee correspond to those on the part of the necessary to pay the expenses of the board, not lessor above noticed. Thus the lessee may expressly exceeding $50,000 a year, have been assessed covenant to keep the premises in repair, and whether upon the several railroads in this State by the he does or does not he is obliged by law to make comptroller and the assessments paid; the seco tenant's repairs and to keep the leased premises retary of state has issued such passes in pursu

wind and water tight. Waste on the part of a ance of the act as the railroad commissioners

Thorndyke v. Burrage, 111 Mass. 531; 1 Schoul. have requested, and the passes have been recog- | Pers. Prop. (2d ed.), § 31.

on the

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tenant, whether permissive or voluntary, will not In the case of Scott v. Scott,' the court say that be tolerated; yet the term “good repair ” is a rela- the rule as to covenants to pay in case of destructive one and necess

essarily depends upon the age of tion has stood the test of time and innovation in the building, the purpose for which it is leased and England, and remains, I believe, to this day the law occupied, and the like.

of that country. However it may have been changed On the part of the lessee there are several implied and modified by adjudication or legislation in some covenants such as to pay rent, to make tenantable of our sister States, if such be the fact, it has been repairs, and to use the premises in a proper and and yet is the settled and approved law of our State. tenant-like manner and the words “yielding and In Ross v. Overton,to the lessee of a mill having paying " a stipulated sum raise a covenant to pay covenanted in addition to the rents reserved to rent.5 In a parol demise of land there is an im- make certain improvements and deliver the mill plied covenant on the part of the lessee that at the with such improvements at the end of his term in expiration of the tenancy he will deliver up vacant proper tenantable repair, and the mill during the possession of the premises to the landlord. It is | lease having been destroyed by the ice, three arbiusual, however, to fix the liability of the lessee to trators, to whom the matter was referred, awarded repair by an express covenant.? Such a covenant, that the lessee should pay the rent, notwithstanding however, merely binds him to see that the premises the destruction of the mill, and should perform the do not suffer greater injury than the usual operation other convenants contained in the lease, and the of nature to buildings of the age and condition of Court of Appeals expressed an opinion that the those on the demised premises; but an express and arbitrators did not mistake the law.11 unconditional covenant to repair and keep in repair The generally accepted rule is that an express will bind the lessee to rebuild in case of destruction covenant to repair binds the lessee to make good by fire or other accident;& the word “repair" being any injury which human power can remedy; even held equivalent to the word “rebuild."'8a

though caused by storm, flood, fire, inevitable acci

dent, or the act of a stranger. An exception, in a ? Hart v. Windsor, 12 Mees. & W. 77. See Makin covenant to repair, for “ damage by the elements or v. Watkinson, L. R., 6 Ex. 25.

the act of God," will include only those damages to 3 Lynch v. Onondaga Salt Co., 64 Barb, 558; Van which human agency in no way contributed.13 Rensselaer v. Smith, 27 id. 104; Kimpton v.Walker, $ 2. Same-Same-English rule.--In the case of 9 Vt. 191, 198.

Hampshire v. Wickins," the question as to what * Nave v. Berry, 22 Ala. 383; Lynch v. Onondaga

"usual covenants in a lease, came before the Salt Co., 64 Barb. 558.

918 Gratt. 166. 6 Van Rensselaer v. Smith, 27 Barb. 104; Wolver

10 3 Call, 309; S. C., 2 Am. Dec. 552. idge v. Stewart, 3 Tyrw. 687; S. C., 1 Cromp. & M.

" See Maggart v. Hausbargar, 8 Leigh, 536. 664; Iggulden v. May, 9 Ves. 330.

12 Leavitt v. Fletcher, 92 Mass. 119; Levy v. Henderson v. Squire, 2 Best & S. 283.

Dyess, 51 Miss. 501; 8. C., 3 Cent. L. J. 221. See * Stanley v. Towgood, 3 Bing. N. C. 4; S. C., 32 | Wells v. Calnan, 107 Mass. 514, 518; S. C., 9 Am. Eng. C. L. 13; Gutteridge v. Munyard, 7 Car. & P. Rep. 65; Kramer v. Cook, 73 Mass. 550; Bigelow v. 129; S. C., 32 Eng. C. L. 534.

Collamore, 59 id. 226, 231; Phillips v. Stevens, 16 8 Phillips v. Stevens, 16 Mass. 238; Levy v. Dyess, id. 238; Fowler v. Bott, 6 id. 63; Allen v. Culver, 51 Miss. 501; S. C., 3 Cent. L. J. 221; Abby v. 3 Den. 284, 294; Ingle v. Jones, 69 U. S. 7; bk. 17 Billups, 35 Miss. 618; S. C., 72 Am. Dec. 143; Linn (L. ed.), 762; Paradine v. Jane, Aleyn, 27; S. C., v. Ross, 10 Ohio, 412; 8. C., 36 Am. Dec. 95; Hoy Style, 47; Bullock v. Dommitt, 6 Durnf. & E. 650; v. Holt, 91 Penn. St. 88; S. C., 36 Am. Rep. 659; S. C., 3 Rev. Rep. 300; Green v. Eales, 2 Q. B. Scott v. Scott, 18 Gratt. 150, 166; Ross v. Overton, 255; S. C., 1 Gale & D. 468; Compton v. Allen, 3 Call. 309; S. C., 2 Am. Dec. 552; Digby v. Atkin- Style, 162. son, 4 Camp. 275; Monk v. Noyes, 1 Car. & P. 265; 13 Polack v. Pioche, 35 Cal. 416; S. C., 95 Am. S. C., 12 Eng. C. L. 159; Brecknock v. Pritchard, 6 Dec. 115. See Turner v. Tuolumne Water Co., 25 Durnf. & E. 750; Bullock v. Drommitt, id. 650. Cal. 397, 403; Fish v. Chapman, 2 Ga. 349; S. C., Destruction of premises by fire, and that the land- 46 Am. Dec. 393; Ferguson v. Brent, 12 Md. 9; lord has received the insurance money is no defense S. C., 71 Am. Dec. 582; Michaels v. New York to the claim for rent. Hoy v. Holt, 90 Penn. St. Cent. R. Co., 30 N. Y. 564; S. C., 86 Am. Dec. 415; 88; S.C., 36 Am. Dec. 659. See Bussman v. Gans- Merritt v. Earle, 29 N. Y. 115; S. C., 86 Am. Dec. ter, 72 Penn. St. 285; Dyer v. Wightman, 66 id. 292; McArthur v. Sears, 21 Wend. 190; Ewart v. 425; 427; Fisher v. Milliken, 8 id. 111, 122; Ma- Street, 2 Bail. (S. C.) 157; Forward v. Pittard, 1 gaw v. Lambert, 3 id. 444.

Durnf. & E. (1 T. R.) 27; S. C., 1 Rev. Rep. 142. 8a Flower v. Payne, 46 Misg. 32.

14 38 L. T. (N. S.) 408.


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