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heretofore, which it was claimed were not entirely calendar shall be made up on the 1st of January, just and equitable, thereby a precedent is established 1897. This result is owing, to some considerable for action contrary to the spirit of the Constitution extent, to the fact that two appellate tribunals in in this regard. Such an argument scarcely needs the city of New York have been abolished, namely, refutation or even consideration. The proposed the General Terms of the Common Pleas and the division, as urged on behalf of the fifth judical Superior Court, and this appellate business must go district, gives the following result:

to the General Term. The design of the plan for Population second and third districts ...

2,143,000 the new Appellate Divisions, as indicated in the Population fourth, fifth and sixth districts.

1,343,000 Population seventh and eighth districts

1,216,000 arguments in the Constitutional Commission of Instead of the population being “as nearly equal 1890, where this plan originated, was that the apas may be" in this case, the population of the de- pellate tribunal in the second district should aid in partment consisting of the second and third districts carrying on and disposing of the accumulation of would be 800,000 in excess of that department con

the business in the first department, and taking sisting of the fourth, fifth and sixth districts, and into consideration the fact that the business in the 917,000 in excess of that constituted by the seventh second department, thus composed of the second and eighth districts. This result is so manifestly a

district, might possibly not be so large, in proporviolation of both the letter and spirit of the Consti- tion to the population, as that in some of the other tution that it would seem it should put an end to departments, still the aggregate of the business of controversy upon the subject.

the two departments would be very much more The only other possible division would be as fol- | than one-half of the aggregate of the business lows:

throughout the entire State. This view is fully jusPopulation second district

1,623,000 tified by the figures which have been presented to Population third, fourth, fifth and sixth districts 1,863,000 this committee by Mr. Carr, indicating that much Population seventh and eighth districts..


more than one-half of the business in the Court of But this would be manifestly unjust, giving to the department consisting of the four districts 200,000 Appeals comes from the first and second districts, larger population than the second department, and showing very clearly that the appellate tribunals in

those districts must pass upon a larger number of 647,000 more population than the department con.

cases than the appellate tribunals in the rest of the sisting of the seventh and eighth districts, and

State. This view is borne out by the statistics as would place almost the entire territory of the State in a single department consisting of four districts, Terms of the different departments from carefully

to the number of cases decided by the General while the other three districts would constitute the remaining three departments. There is nothing to compiled figures, which are as follows: argue in favor of such a combination. No more just First department . and equitable division can be made, therefore, upon Second department.

Third department the basis of population than that in the O'Con

Fourth department. nor bill.

Fifth department. Nor is there force in the argument made before It thus appears that, in 1892, the General Terms the committee that the city of New York has a of the Supreme Court in the first and second depopulation substantially as large as the second and

partments disposed of 926 cases, while the General third districts, since the county of New York is Terms of the Supreme Court in the other departmade a separate department by the Constitution ments of the State disposed of 827. In 1893 the from the very necessities of the case, it being im- General Terms of the Supreme Court in the first and possible to divide that city for judicial purposes, second departments disposed of 943 cases, while the and is given seven appellate justices, while the other General Terms of the Supreme Court in the other departments have but five; moreover, as

we shall

three departments of the State disposed of 850 cases. see, the overflow from New York must go to the In 1894 the General Terms of the Supreme Court in second department.

the first and second departments disposed of 983 But aside from the question of population, the cases, while the General Terms in the other three matter of business is to be taken into consideration departments of the State disposed of 990 cases, in determining what shall be the boundaries of the clearly indicating that much more business was judicial districts. Upon this point we have the transacted, on the average of the three years, in statement, said to have been made by Presiding these two departments, than in the other three, and Justice Van Brunt, of the first district, that in all showing that a fair division into departments would probability there will be 1,100 cases upon the cal- be such as to make two departments of those now endar of the Appellate Division in the first depart- constituting the first and second departments, leavment, composed of the city of New York, when the ling less than one-half of the appellate work to the

1892. 1893. 1894.

612 613 624 314 330 259 230

267 272 247 234 227 350 349 491

rest of the State, now constituting three depart-posed by those who desire to consolidate the second ments, and which should, therefore, fairly constitute and third districts in a clepartment. the other two judicial departments. If to this Upon the question of area, it may be said that statement should be added the cases disposed of in taking the O'Connor bill, the area of the departthe third department, which are to be fairly estiments consisting of the third, fourth and sixth, as mated at 212, according to figures hereafter given, there proposed, is greater by some 5,000 square we have 1,195 causes decided in the first, second miles than the department composed of the fifth, and third districts proposed as two departments, seventh and eighth. It is urged, on the part of the and 778 in the balance of the State to form the other seventh and eighth districts, that a larger amount of two departments. These figures need no comment. business is there transacted, and that under the This is still clearer when we consider that the Gen- system in vogue previous to 1882, the three judges eral Terms of the Superior Court and Court of Com- bolding General Term were unable to keep up with mon Pleas of New York city and of the City Court the accumulation of business. This argument enof Brooklyn are to be abolished. It is true that the tirely overlooks the fact that two judges are to be City Court of Buffalo is also to be abolished, but it added to each Appellate Division for the express is fair to assume that the City Court of Buffalo and purpose of enabling additional business to be transBrooklyn each have substantially the same amount acted, and that the reduction of the number of of appellate work, and that this will be added to the General Terms was made upon the distinct ground work of the respective Appellate Divisions, leaving that the General Terms should be increased by two to be added to the labor in the first department, judges each, so as to enable the three General Terms aided by the causes to be sent to the second depart- outside the city of New York to carry on the business ment, cases heretofore heard in the General Terms theretofore conducted by four appellate tribunals. of the Superior Court and Court of Common Pleas. Nor is there force in the argument that the number

Nor is this question as to the disposition of the of judges of the Appellate Division in the second business left to conjecture, since the Constitution district is disproportionate to the number of trial provides clearly with a view to just such an adjust- judges, in view of the fact that it is expressly proment, Whenever the Appellate Division in any vided by the Constitution that only three of the department shall be unable to dispose of its business justices of the Appellate Division need be taken within a reasonable time, a majority of the presiding from the department to which they are assigned. justices of the several departments, at a meeting The evident purpose and intent of this was, as bas called by the presiding justice in arrears, may trans- been acted upon in the appointment by the goverfer any pending appeals from such department to nor of the judges to the General Term in New York any other department for hearing and determina- city, in taking of two justices from other districts, tion.” It would be manifestly unjust to transfer to enable the New York and Brooklyn districts business from the city of New York to the central to have the benefit of any surplus of judges outside or western part of the State, and the natural and those cities, and unquestionably the same course just arrangement with reference to this matter would will be taken with regard to the second district, be to constitute a tribunal in the second district, to

with the view of aiding the work not only of sit in the city of Brooklyn, convenient for the bar the second district, but of New York city, by the of the city of New York, to which the surplus busi- selection of two justices from districts outside the ness may be transferred.

first and second. It will thus be seen that no good Again, if we take the business transacted during by those representing the fifth judicial district, in

reason, whatever, exists for the division proposed 1894 by the General Terms, we shall find that the consolidating the second and third districts in General Terms of the second department decided

a single department, but that all the arguments as 359 causes, that the third department decided 272,

to territoriul extent, proximity of territory, uniformof which probably one-fourth came from the fourth ity of business interests, population and extent of district, which would leave 214 cases on appeal legal business, point to the division in the O'Confrom the third district; this, added to the 359 dis

nor bill, by which the second district shall be made posed of in the second department, makes 563 causes

an independent department, the third, fourth and disposed of by the General Terms in the second and sixth districts shall constitute a department, and the third departments now proposed to be consolidated, fifth, seventh and eighth constitute the fourth deas against 786 causes decided in the districts out of partment. This must necessarily result, ind very which it is proposed to form the other two depart. properly so, in locating the place for holding the ments, an average of 393 causes each for the new courts in the second district at Brooklyn, in the third and fourth departments as proposed, as against third department at Albany, and in the fourth 563 causes for the new second department, as pro- I department at such point as may be selected by






those interested in the fifth, seventh and eighth CORPORATION-TRANSFER OF CORPORATE STOCK.— districts. There is certainly no lack of cities ad- Where a corporation recognizes a transfer of its mirably located for that purpose, and we have no stock, and treats the transferee as a debtor for the desire to interfere with the location of the appellate subscription, he is substituted for the transferrer as tribunal in that district. On the other hand, we owner thereof, though no entry of the transfer is insist that there should be po attempt to fix the made on the books, (Kriger v. Hanover Nat. Bank location, by arrangement of districts or otherwise, [Miss.), 16 South. Rep. 353.) for the place of holding the Appellate Division in

CRIMINAL EVIDENCE the third department, other than such as may be

- The overt act, as hostile demonstration of the deselected by those who are residents of the depart-ceased against the accused, must be proved before ment.

the introduction of evidence as to the dangerous J. NEWTON FIERO, Chairman of Committee.

character of the deceased. (Statc v. Green (La.), 16 South. Rep. 367.)

CRIMINAL LAW - HOMICIDE --INTOXICATION. - The Abstracts of Recent Decisions.

fact that defendant was intoxicated at the time the

crime was committed is no justification therefor, ATTORNEY AND ACTION.-A discontinuance of an action for performed design to kill in consequence of which he

if his mind was still sufficiently clear to plan a sonal injuries will not be set aside because the stipu

deliberated and premeditated upon

the killing iation is filed without the knowledge or consent of

(State v. McDaniel [N. C.], 20 S. E. Rep. 622.) plaintiff's attorney. (Voigt Brewery Co. v. Donovan (Mich.), 61 N. W. Rep. 343.)


-A rail- by a mortgagor to the mortgagee of the mortgaged road company which does not own refrigerator cars, premises in satisfaction of the debt, a new considerabut has an arrangement with the owners of such tion, passing from the mortgagee to the mortgagor, cars whereby it can furnish the same to its ship- need not be shown. (Watson V. Edwards (Cal.), pers, is liable for injuries to shippers caused by 38 Pac. Rep. 527. delay in furnishing cars when promised. (Inter- ESTOPPEL

- Where a national & G. N. R. Co. v. Young [Tex. ), 28 S. W. mortgagee who purchased the land at a void foreRep. 819.)

closure sale remains in possession, with the acquiesCHATTEL MORTGAGE.-A mortgage on a stock of

cence of the mortgagor, for nearly ten years, the merchandise, conditioned on the payment of certain mortgagor is estopped to claim that, because the debts “ when due,” provided that the mortgagor

mortgage ebt is barred by limitation, the mortwas to remain in possession until the condition was

gagee is not entitled to satisfaction of the debt out broken. The debts at the time of the execution of of the land. (Lucas v. American Freehold Land the mortgage were past due, and the mortgagee Mortg. Co. of London (Miss.), 16 South. Rep. 358.) took possession the day after the mortgage was exe

FRAUDULENT CONVEYANCES CANCELLATION. cuted. Held, that the mortgage was valid as Where by fraud or questionable contrivance or against creditors of the mortgagor. (Kub v. Gar- | irregularity the title to land is wrested from the vin (Mo.), 28 S. W. Rep. 817.)

owner, and converted to the use of another, the CORPORATION

owner, though not in possession, may sue to cancel

The president of an insolvent corporation, whose tangi

the conveyance and quiet title. (Packard v. Beaver ble property was in the custody of the law, gave a

Valley Land & Min. Co. (Ky.), 28 S. W. Rep. 779.) bank the company's note, payable on demand, for PROHIBITION—WRIT—WHEN GRANTED. Where, a debt not due. Suit was commenced on it the in a libel against a ship for injury to cargo, the next day. The company filed its appearance, time charterer is cited in by the owner of the vespleaded the general issue, waived a jury, and con- sel, claiming that the charterer was liable, as besented to an immeiliate hearing. Execution was tween the owner and charterer, for the negligence, issued, and returned nulla bona, and on the same if any, which caused the injury, the court, having day the bank filed a creditor's bill. A director of jurisdiction of the subject-matter and the parties, the company was individually liable, as guarantor will not be prohibited from entertaining the ownand otherwise, for the debt due such bank. Held, er's contention against the charterer in the same an unlawful attempt to give the bank a preference guit with the libel against the ship, as the error, if over other creditors of such company. (Wisconsin any, in so doing, may be corrected on appeal. (In Marine & Fire Ins. Co.'s Bank v. Lehigh & F. Coal re New York & P. R. Steamship Co. [U. S. S. C.), Co., U.S. C. C. [I.], 64 Fed. Rep. 497.)

15 S. C. Rep. 182.)


The Albany Law Journal.


overflowed from Europe. We realize that many may not agree with us, but it is probable

that any favorable decision by the Supreme ALBANY, MARCH 16, 1895.

Court of the United States upholding the conCurrent Lopics.

stitutionality of the existing law will cause

another influx of foreigners who will willingly (All communications intended for the Editor should be addressed simply to the Editor of The ALBANY LAW JOURNAL. accept their support and, in time, demand it at All letters relating to advertisements, subscriptions, or other the hands of those who have honestly accumubusiness matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.)

lated their property, for some will think that

the county has placed its favorable seal on HE argument before the United States Su

socialism. Naturally the law was attacked in preme Court in regard to the constitution

two different ways, first on the theory that it ality of the Income Tax has been engrossing

was a direct tax and was not laid according to the attention of that tribunal for several days the rule of apportionment and was unconstituand will doubtless receive from the members tional; and, secondly, on the ground that it was of the court the profound consideration and

an indirect tax and was not laid according to judgment which its importance necessitates. the rule of uniformity and hence was unconstiAs we have pointed out and as has been stated tutional. The first contention was ably made by others so well, the mere levying of the tax by Clarence A. Seward, Esq., of New York is not what is objectionable so much as the ar-city, whose brief we will comment upon at bitrary powers granted to United States officers length and which contained a most elaborate, over citizens of the country, and the socialistic

exhaustive and learned discussion of the histendencies of the bill which exempts one class tory of taxes prior to the time of the adoption froin any payment of revenues to the support of the Constitution, with many abstracts from of the government. Ex-Senator Edmunds, of Elliott's debates and decisions of the United Vermont, on Monday, before the Supreme Court, States courts in regard to taxes laid by different delivered more than the argument of a great statutes. William D. Guthrie, Esq., also argued constitutional lawyer. In his words there against the unconstitutionality of the Income was the thrill of the love of country; they Tax and in conclusion said: were the utterances of a patriot and those “We recognize that the power of taxation phrases were coined not to try to defeat a must be exercised without restraint, except conmeasure to bring revenue to the government, stitutional limitations. Let Congress amend but to guide it from the unfortunate conse- this act, apportioning direct taxes among the quences of having such a law, as has already States and equalizing their application, and darkened the statute books, declared constitu

none will more willingly contribute to the tional by the highest court of this republic. As national welfare than 'our clients, even if it is most strongly and ably put by the New York | takes all of their property. We ask you to imSun, “Standing on the same intellectual level pose no limitation upon the right of Congress as that of the judges whom he addressed, Mr. to tax up to the full measure of the requireEdmunds reminded them that it is a question ments of the nation. Recognizing that authority of national destiny which they have to decide; to tax in its nature must be without limitations, that they are the people's bulwark against revo- except equality of burden, and that it involves lution and anarchy." It is the same feeling the power to destroy, we are here to plead that which exists in the minds of those who may or the destruction must result from some necessity may not be subject to the tax, which reminds or peril of the Union, and that however the them that the rights of citizenship are to be occasion may arise, the destruction must be preserved against the tyranny of unjust legisla- equal and uniform and not of selected indivition, the theories of agitators and the forerun- duals or classes. Did not the Constitution of ners of socialism and that the historical guar- the United States spring into life as the product antee of no taxation without representation of a longing, of a hope, of a determination to shall be forever kept sacred from the attacks of establish a government of equality ? The fundafanatics, anarchists and the scum which has I mental principle of the American system is

Vol. 51 — No. 11.


equality - equality of rights, equality of duties, Mr. Seward, among other things, in comparequality of burdens. Every clause of the Con- ing the law of Massachusetts and the present stitution was supposed to have been conceived act said: “The only difference between the in the light and spirit of that rule. The Con- l income tax of Massachusetts which has been stitution will never perish as long as equality is imposed for 200 years and the present law, is the guiding star, illumining the path and pilot- that one was collected by State officials and ing the way of the lawmaking power. Let that the other by federal officials.” E. B. Whitney, star ever keep the compass true. The observ- Esq., assistant attorney-general, argued in ance of the principle of equality in the past has favor of the constitutionality of the act. built up a great nation, and, whatever may be speaking of the Moore case, he said, “The case temporary interest or prejudice or blindness, of Moore v. Miller was a more direct assault the masses will inevitably realize, if they have upon the traditions and practices of the treasnot already done so, that the disregard of that ury department than any other statute. This principle is in conflict with their own vital and suit is in violation of a section of the Revised permanent welfare, and cannot be tolerated if Statutes, which expressly stated that no suit to we are to remain a free people. We Americans prevent the collection of any tax shall be mainhave sacred rights which we hope shall never

tained by any court. No tax could be found be erased or obscured by mortal power, and

in the books where an injunction had been isthe most sacred, the one of all that should re

sued in such case, and but one injunction main inviolate, is equality. Half a century ago

against a federal official had ever been susAllison uttered his famous prophecy that class tained by the Supreme Court of the United legislation and attempts of the majority to spo

States.” The argument used by the other liate private property would ultimately wreck appellants we shall give more fully hereafter. the American republic. Bryce, who saw but Attorney-General Olney devoted his argument the surface, and whose mind was hospitable to

on the part of the United States to the Constievery favorable symptom, wrote that the per

tutional questions which the several plaintiffs petual strife of rich and poor, the oldest disease alleged to be involved in the cases presented. of civilized States, did not yet exist with us. Many of the objections raised seemed to him It is only five years since one of the leading

to be simply perfunctory, taken pro forma and members of this bar, on the occasion of the by way of precaution. Speaking of the inquisicelebration of the centenary of the court, pointed torial features he said, “Suppose it to be true

that the income tax undertook to ascertain the to the attacks upon individual rights and private property in many forms and under many

incomes of citizens by methods which were not pretexts, which were then beginning to be heard only disagreeable but were infringements of and might be looked for to an increasing ex- personal rights, the consequence would be, not tent, and earnestly said that the accursed war

that the law was void but that the hotly defare of classes was the danger that appeared nounced inquisitorial methods could not be to threaten our future. But anxiety was soon

resorted to. Similar considerations would dispelled. We still hear the acclamations that apply to the objection that the law was to be greeted his proud and confident boast that, pronounced void because taxing the agencies whatever might come, the Supreme Court of and instrumentalities of the governments of the the United States would meet the emergency, several States.” Continuing, Mr. Olney said: maintain the Constitution, and protect the peo- “ The power to tax was for practical use, ple. In words that might well be blazoned upon and was necessarily to be adapted to the practhe walls of this historic chamber, he eloquently tical conditions of human life. These were said of your great tribunal: ‘Having its origin never the same for any two persons, and as in the sovereignty of the people, it is the bul-applied to any community, however small, wark of the people against their own unadvised were infinitely diversified. Nothing was more action, their own uninstructed will. It saves evident, or had been oftener declared by courts them not merely from their enemies, it saves and jurists, than that absolute equality of taxathem from themselves.

tion was impossible. No system had been or

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