was not due; and that thereupon the plaintiff offered said architect money to give such certificate, which the latter, deeming it to be an insult, resented by taking the plaintiff by the collar, and shoving him out of the door of the building. Of course, even the alleged insult did not justify the architect in committing an assault, but I am unwilling to hold that under the circumstances it can be held to have delayed or obstructed the plaintiffs in the performance of the work. The plaintiffs were not put in such peril as to justify them in abandoning the work and claiming to recover for the work done upon a quantum meruit. 3. The evidence in the case is extremely conflicting as to the manner in which the work done by the plaintiffs upon the building was performed, as to the speed with which it was prosecuted, and also as to the circumstances under which it was finally abandoned by the plaintiffs. It is, however, I think, shown by the preponderance of the testimony that the plaintiffs could not have completed their work within the few working days which remained to them of the 42 allowed to them by the contract. I am also satisfied that the plaintiffs had not made, at the time the work was abandoned, arrangements for the supply of a sufficiency of material or of workmen to enable them to perform the work within the time contemplated by the contract, and that it is established that when the plaintiff Charles V. McConologue left the place of business of the firm of Murray & Hill, after the negotiations with that firm to supply the trim had fallen through, he said, in substance, that he would have nothing more to do with the job. That thereupon Horenburger told him that that was not the business way of terminating the contract, and that he would give him notice. I think that it is also established as a fact that the giving of the notice was justified under article 5 of the contract between the parties, and that the notice was received as early at November 30, 1898, and, as the men were not ordered off of the work until the afternoon of December 5th, that the defendant Fagen was within his legal right in then assuming the control of the work for the purpose of completing it. 4. The evidence shows that, while the plaintiffs had not done work sufficient, under the contract, to entitle them to their first payment, there was a considerable amount of work and materials which they had performed and furnished. The plaintiffs, in their testimony, state that the value of such work and materials was $2,216.01, which, in view of the fact that the whole contract price was only $2,366, and of the evidence as to the condition of the work when the plaintiffs ceased working, is hardly credible. Liens have been filed to the extent of $1,327.66, and the defendant Fagen claims that he was put to an expense of $1,592.69 in finishing the work. 5. The defendants who filed liens and who did not answer are not entitled to relief in this case, but must be deemed to have waived their liens, as their liens are not admitted in the complaint. Code Civ. Proc. § 3402, subd. 3. It follows, therefore, that all of the liens except those of James Nolan, and Kelly & Dwyer, and Low & Flogaus have been waived. 6. For the same reason the motion made at the trial to consolidate the actions brought by Kanzler & Nelson must be denied, and also be and 100 New York State Reporter cause such actions were not commenced until after the trial of this case was begun. 7. The defendants Nolan, Kelly & Dwyer and Low & Flogaus have duly proven the furnishing of materials and the performance of labor by them, and the value of such work and materials, but the plaintiffs claim that, after paying Nolan's lien, which is first in point of time, the plaintiffs are to be regarded as next in the order of priority, for the reason that as subcontractors the other defendants have no priority under the lien law over the contractor's lien. It is contended by the plaintiffs that section 20 of chapter 342 of the lien law of 1885, which provided that "the court in the judgment shall direct the amount due sub-contractors to be paid out of the proceeds of sales before any part of such proceeds are paid to the contractors," has been abrogated by the present law. No case has been referred to by the counsel to sustain his contention, and I am, therefore, unable to assent to it as correct. Campbell v. Coon, 149 N. Y. 556, 44 N. E. 300, 38 L. R. A. 410, and cases cited. 8. The contract between the parties provided that all payments "shall be made upon written certificates of the architect to the effect that such payments have become due." If an architect, under such a provision in a contract, unjustly refuses to give a certificate, such refusal does not defeat the right of the contractor to a payment; but in this case, on the evidence, I am of the opinion that the plaintiffs never became entitled to any certificate. 9. Nothing having been paid under the contract, and it having cost, as the defendant Fagen shows, the sum of $1,592.69 to finish the work, the account between the plaintiffs and the defendant Fagen would stand as follows: Contract price, $2,366; amount paid by Fagen, $1,592.69; leaving a balance of $773.31 due apparently to the plaintiffs. The lienors who have answered in this case are Nolan, whose lien was filed December 6, 1898, for $138, and Kelly & Dwyer, whose lien was filed January 10, 1899, for $372.05, and Low & Flogaus, whose lien was filed January 26, 1899, for $124. These parties are entitled to interest from the date of the filing of their lien. The architect's fees are also shown to have been $55 and $66.80. These several sums amount in all, without interest, to $756.29, as follows: Nolan, $138.44; Kelly & Dwyer, $372.05; Low & Flogaus, $124; architect, $121.80,-total, $756.29. With interest added, they will amount to more than the difference between the contract price and the sum required to complete the work. Foshay v. Robinson, 137 N. Y. 134, 32 N. E. 1041. 10. Judgment should therefore be entered that the said sum of $773.31 be devoted to the payment of the liens aforesaid, and for the enforcement thereof by sale of the premises mentioned in the complaint. In all other respects there must be judgment for the defendants Fagen and Larkins. All questions of costs will be reserved until the filing of the decision. Draw decision and judgment accordingly, and settle on five days' notice. Judgment accordingly. (32 Misc. Rep. 170.) PEOPLE v. THOMAS. (Supreme Court, Criminal Term, New York County. July, 1900.) 1. INDICTMENT-DISMISSAL-EVIDENCE-SUFFICIENCY. Pen. Code, § 154, declares that, when a duty is enjoined by law on a public officer, every willful omission to perform it is punishable as a misdemeanor. Code Cr. Proc. § 256, prohibits the grand jury from receiving any but legal evidence. Held, that where a police captain was indicted under section 154 for failing to suppress a disorderly house in his precinct, and witnesses before the grand jury testified that persons in the house conducted themselves in a disorderly manner, and some testified that while there they were "solicited" by women "to go out and have a good time," the indictment should be dismissed, since there was no legal evidence of disorderly conduct. 2. SAME DISMISSAL BY COURT. Code Cr. Proc. § 313, as amended in 1897, declares that an indictment must be set aside by the court in which the defendant is arraigned in certain cases, but in no other than the cases enumerated, not including the event of the grand jury having acted on insufficient evidence. Section 671 provides that the court may of its own motion, or on application of the district attorney, order an action, after indictment, to be dismissed. Held, that the word "must," in section 313, should be construed as mandatory, and not as synonymous with "may," leaving the court discretion as to dismissal in cases other than those enumerated, and hence the court had power to dismiss an indictment when it appeared that it was found without legal evidence of guilt of accused having been before the grand jury. Andrew J. Thomas was indicted under Pen. Code, § 154. Motion to dismiss indictment. Motion granted. Charles L. Hoffman (Abraham I. Elkus, of counsel), for the motion. Asa Bird Gardiner, Dist. Atty., for the People. FURSMAN, J. This is a motion to set aside an indictment found against the defendant by the March, 1900, grand jury of the court of general sessions. The indictment is found under section 154 of the Penal Code, which declares that, where a duty is enjoined by law upon a public officer, every willful omission to perform it is punishable as a misdemeanor. The indictment charges that the defendant on the 5th day of March, 1900, was a captain of police in the Nineteenth precinct in the city of New York; that the law imposed upon him the duty of exercising all proper, reasonable, and effective means for preventing crime in his precinct, for detecting and arresting offenders, and for repressing and restraining all unlawful and disorderly conduct and practices therein. It further charges that on the 5th of March, and since, there has been kept and maintained in his precinct a certain house of ill fame and assignation, commonly called the "Cairo," and that unlawful and disorderly conduct and practices were committed therein, of all which the defendant had knowledge; that the defendant disregarded his duty in respect thereto, and did unlawfully and willfully neglect and omit to perform it according to the provisions of the section above referred to, and, on the contrary, did unlawfully and willfully suffer and permit the same without any interference on his part, and without any proper, reasonable, or effective endeavor towards the detection or arrest of the person keeping and maintaining the same. and 100 New York State Reporter The defendant now moves, upon the minutes of the grand jury, to dismiss this indictment upon the ground that there was no evidence before the grand jury to justify the finding thereof. I have carefully read the minutes of the grand jury, taken by question and answer, and I am constrained to hold that there was no legal evidence whatever before that body of any violation upon the part of the defendant of section 154, above cited. Section 256 of the Code of Criminal Procedure provides that "the grand jury can receive none but legal evidence." Witnesses before the grand jury testified that the persons who were found by them in the place referred to in the indictment conducted themselves in a disorderly manner, and some witnesses say that they were "solicited" by women while there. The witnesses testified that the soliciting of which they spoke consisted in asking them "to go out and have a good time." The statement that these persons conducted themselves in a, disorderly manner is a mere statement of a legal conclusion. Upon the trial of a person charged with disorderly conduct, a witness cannot be permitted to express an opinion as to such conduct, but must be required to state precisely what took place, and it thereupon becomes a question for the court and jury whether such occurrences did or did not constitute disorderly conduct. So, whether a person "solicited" another does not depend upon the opinion of a witness; nor can a witness, according to the established rules of evidence, be permitted to express an opinion upon that subject. All that the witness can be allowed to do is to state the language of the person charged to have solicited another, and it is for the court and jury to determine whether such language constituted a soliciting, according to the understood meaning of that word, as expressed in the evidence before the grand jury. Here, however, the witnesses limit the expression by stating precisely in what the soliciting consisted, to wit, "to go out and have a good time." This does not constitute, in law, disorderly conduct; nor, in view of the presumption of innocence. which must be accorded to every person charged with an offense, does it imply a thing necessarily improper. Excluding the illegal evidence before the grand jury, there was nothing whatever before that body indicating that anything occurred at the place designated which called for the interference of the defendant as a police officer. The minutes of the grand jury are absolutely silent upon the subject of any willful omission on the part of the defendant to perform his duty under the section above referred to, and, therefore, unless restricted by law, it is the duty of the court, for this reason, to dismiss this indictment; for no man should be put upon trial under an indictment unless there was some evidence-some legal evidence-before the grand jury, which, if uncontradicted or unexplained, would justify his conviction. The serious question upon this motion is whether the court has power to set aside an indictment under such circumstances. That there is an inherent power in courts of general jurisdiction to exercise authority over and to control its own records has been repeatedly decided. As to the inherent power of the court to set aside indictments improperly found, I concur in the opinions heretofore expressed by a large majority of the judges in the First department, and in the view maintained by Mr. Justice Williams, of the Fourth department, as ex pressed by him in People v. Molineux, 27 Misc. Rep. 79, 58 N. Y. Supp. 155. But it has been said that section 313 of the Code of Criminal Procedure, as amended in 1897, has deprived the court of this power; and the appellate division of the Third department, in the case of People v. Rutherford, 47 App. Div. 209, 62 N. Y. Supp. 224, expressed this view. That case, however, was not decided upon this ground, and the opinion, so far as it relates to this question, is obiter. The language of section 313 is as follows: "Sec. 313. The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases, but in no other: (1) When it is not found, indorsed and presented as prescribed in sections two hundred and sixty-eight and two hundred and seventy-two; (2) when a person has been permitted to be present during the session of a grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections two hundred and sixty-two, two hundred and sixty-three and two hundred and sixty-four." These last-named sections are unimportant here. There is no doubt of the power of the legislature to "prescribe a practice in criminal procedure which must be regarded by the courts, and which must be taken as exclusive of any practice the courts may seek to adopt in conflict with it." The question is, has the legislature, by this section, taken away the inherent power of the court to set aside indictments for reasons other than those mentioned in it? The word "must" is mandatory. It means "obliged," "required," and imports a physical or moral necessity. The word "may," when used in a statute which imposes an imperative duty, is construed to mean "must," but the word "must" has never been construed to mean "may." It is peremptory. It excludes all discretion, and imposes upon the court an absolute duty to perform the requirements of the statute in which it is employed. Section 313, therefore, imposes upon the court, in the two cases therein referred to, the absolute duty to dismiss an indictment. But do the words "but in no other" deprive the court of the power, to be exercised according to its discretion, to set aside indictments for other adequate reasons? Transposing the language of this section, it would read: "In the two following cases, but in no other, the court must set aside the indictment." Substitute for the word "must" its definition and transposed it will read thus: "In the two following cases, but in no other, the court is obliged [required] to set aside the indictment." As to these two cases mentioned in this section the court has no discretion. There is an absolute requirement that in such cases the indictment shall be set aside. The provision is peremptory. The court must perform the duty imposed by this section, and, because of the limitation expressed in the words "but in no other," is not commanded to set aside an indictment for any other reasons than those expressed in the statute. This section, however, does not interfere with the discretionary power of the court to set aside an indictment for other sufficient reasons. While this section imposes upon the court a necessity to act in a certain way in either of the cases therein stated, it goes no further than to declare that such necessity, obligation, or requirement is not imposed upon the court in any other case; and the court still, as heretofore, has control and authority over its own records, and may still exercise its inherent right to set aside 66 N.Y.S.-13 |