People agt. Kiernan. cartridges in the pistol, a fact confirmed by the weapon itself after the shooting, in which were found one loaded cartridge, three discharged chambers, and one having no cartridge in it. The inferences to be drawn from this circumstance are adverse to each other, and peculiarly the subject for the consideration of a jury. It is quite probable that the weapon was discharged on Saturday night, as the prosecution claim, after the visit of McCormick. The prisoner puts the hour at eleven or half-past eleven o'clock, which was after the hour of that visit. The discharge of the pistol can scarcely have originated in other than one of two motives. The purpose was either to empty the weapon, and render it harmless; or to test its reliability after the length of time during which it had remained loaded, and ascertain its existing efficiency. If the first of these motives was the true one, and the prisoner meant to empty the weapon entirely, and supposed that he had, it is inconceivable that he should make no such explanation. Had that been true, his testimony would have been that he drew the pistol to frighten McCormick, and he did not suppose it was loaded. But no such explanation came from him. On the contrary, the theory he advances as a witness assumes a knowledge on his part that the pistol was loaded; for he claims to have fired it unintentionally. He says: "I didn't intend to fire it off." "The pistol went off, but I did not aim it at him at all." "When McCormick had close hold of me I fired; I did not mean to shoot it off." Those explanations are inconsistent with a belief on his part that the pistol was empty. If he had supposed that to be the fact, assuredly he would have said so, and stated his surprise at discovering that a charge remained in the weapon. Then, too, if on the night before he had supposed the pistol to have been emptied and rendered useless, why should he have put it back in his pocket, and carried it around with him, instead of laying it away, as it appears he had often done before? And why, also, on that supposition, should he have said, before firing the fatal shot: "You or me going to die?" These facts tend very seriously to disprove the infer People agt. Kiernan. ence that the firing on the previous night was intended to render the weapon harmless, and so leave more probable the only other explanation that the prisoner was testing the pistol in advance; and, as we have already said, it was the province of the jury, reasoning upon the evidence, to choose between those conflicting inferences. Passing now to the occasion of the killing, we have only the evidence of the prisoner and of the Italian to consider. That there was some altercation over the rent is made certain by both witnesses. The prisoner had with him money enough to pay the rent. He says he counted it out and offered to pay, but McCormick refused it. Either this must have been true, or the prisoner must have refused to pay the sum demanded, to account for the dispute which certainly arose. In the process of the altercation the Italian heard, as he says, the prisoner's threat: "You or me going to die." Whether the Italian told the truth, and whether, as a foreigner, he was sufficiently versed in our language to correctly understand what was in fact said, were subjects for the comment of counsel and the consideration of the jury. The latter heard the witness testify. They could judge how accurately or how imperfectly he understood the questions asked, and how well he could clothe his thought in the language of the country. That advantage we have not. The jury trusted in the truth and accuracy of the witness, and we cannot say that they erred in the conclusion, - although to us it appears that they might well have hesitated. Assuming, therefore, as we must, the truth and accuracy of the witness, it becomes apparent that there was time enough during the dispute, and before the shooting, for deliberation and premeditation within the rule as we have often stated it, even if the jury did not believe that the fatal purpose was considered, and precaution taken for its success on the night before (Leighton agt. People, 88 N. Y., 117; People agt. Majone, 91 id., 211; People agt. Conroy, 97 id., 75). For the prisoner had time, not only to form the purpose in his mind, but to announce that intention to his victim, and then carry it into effect. After the Kane agt. Clarke. shooting the prisoner left the house, pursued by the Italian, and turned upon him, presenting his pistol, and saying: “If you come any further, I give you one." Voorhies then pursued him, and he pulled up his pistol so that Voorhies could see it, and said: "I will stop you." And when asked, after his arrest, what McCormick had done to him, he declined to answer any questions. On this state of facts, we see no just reason for saying that the conclusion of the jury was without evidence, or unsupported by it. These were facts calling for great care on their part, and very serious reflection. The prisoner was shown to be, by a large array of evidence, quiet and peaceable in his character, avoiding rather than seeking disputes or violence, and making it somewhat a matter of surprise that he should have committed the crime. But he did kill McCormick, and upon all the facts a jury have pronounced their verdict. If they had found the prisoner guilty of murder in the second degree, we should have felt it to be a safer conclusion; but have no liberty to reverse their verdict. The judgment of conviction should be affirmed. All concur. SUPREME COURT. KANE agt. CLARKE. Code of Civil Procedure, section 870 — Examination of party before trial— What must be shown to entitle party to order. Where the complaint is on a promissory note and no answer has been put in, and it is sought to examine the defendant as to the consideration of the note, the plaintiff should show a reasonable expectation on his part that the consideration is to be denied, to entitle him to the order. Oneida Special Term, February, 1885. MOTION by defendant to vacate an order obtained by plaintiff for the examination of defendant under section 870, &c. O'Dea agt. O'Dea. Mr. Jenkins, for motion. Mr. Brooks, opposed. MERWIN, J.-It seems to me that this order cannot stand. The complaint is on a promissory note, No answer has been put in. The plaintiff seeks to examine defendant as to the consideration of the note. There is nothing to show what the defense is to be. The plaintiff should, I think, show a reasonable expectation on his part that the consideration is to be denied. This he has not done. Motion to set aside granted, with costs of motion. COURT OF APPEALS. JAMES J. O'DEA agt. MARY O'DEA. Jurisdiction in Divorce Proceedings- Effect of a foreign Divorce. Where defendant, a resident of Canada, was married in 1844 to K. in this. state, and lived with him until 1860, when she returned to Canada, and he went to Ohio and there obtained a divorce for desertion. A copy of the summons was sent to her by mail, and she was present at the taking of the deposition, but took no part in it. She afterwards married plaintiff, he knowing the fact of her former marriage, and he now asks a divorce on the ground that she had a husband living at the time of her marriage. Held, that the divorce obtained in Ohio was without jurisdiction, and so null and void, as was also the marriage in this state, and the divorce should be granted (DANFORT, MILLER and FINCH, JJ., dissenting). Decided December, 1885. Ir appears by the complaint that the parties intermarried in this state on the 30th day of August, 1866, and from that time, until shortly before the commencement of the action in 1880, lived and cohabited together as man and wife. The husband. O'Dea agt. O'Dea. sued to have the marriage contract declared void, and the marriage annulled, upon the ground that at the time it took place a former husband of the defendant was living, and the marriage with him then in full force. The defendant, by answer, denied all the criminatory allegations. The referee before whom the issue was tried found, upon evidence sufficient, if admissible, that in July, 1844, the defendant resided in, and always before that time had been a resident of Toronto, Canada West, but at that date was married in Lewiston, in this state, to one K., and lived with him as his wife until January, 1860, when she left him and returned to Toronto, where she continued to reside until 1865, and he removed from this state "to, and became a resident of, Cuyahoga county, in the state of Ohio,” where, in March, 1864, and after a residence of more than one year, he commenced an action in the court of common pleas of that county "for the purpose of obtaining a divorce from the defendant in this action, for the reason, as stated in the petition then filed, that she had been willfully absent from him for three years or more; that a copy of this petition, and of the summons issued thereon, were, on the 24th of March, 1864, sent by mail to the defendant at Toronto, where she then resided, and were received by her soon after; that by said summons she was required to answer in the action by the 9th day of April, 1864; that a notice of the filing of the petition, and of the purpose thereof, and that said petition would be for hearing at the May term of said court of common pleas, and that depositions would be taken in Toronto at a time and place mentioned, were duly published in a newspaper in said Cuyahoga county; "that on the 20th day of April, 1864, depositions in said action were taken in pursuance of said notice; that the defendant was present when such depositions were taken, but took no part, personally or by counsel, at the taking of the same; that no other service of the process or proceedings in the action was made upon the defendant than is above stated; and that such service, so made, was, according to the laws of the state of Ohio, a legal service upon the defendant, but that she never in any way appeared in |