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Misc.] Appellate Term, First Department, April, 1921.

Plaintiffs are members of the New York Stock Exchange, defendants are not.

One of the plaintiffs' witnesses testified without contradiction that it is the custom" that all tradings in Wall street between the members of the New York Stock Exchange and nonmembers are subject to the rules of the New York Stock Exchange." The only objection taken to this testimony was on the part of defendants' counsel: "I object to that. He is indirectly trying to prove the rules of the Stock Exchange. There is nothing brought to our notice of any rules." I do not understand the objection, but in view of the inscription concededly appearing on the defendants' confirmation slip, it is perfectly clear that the defendants both knew the rules and regarded the transaction as subject thereto, so that we have the unexplained, and as I understand it, conceded fact that defendants expressly notified plaintiffs that the rules of the Stock Exchange governed this transaction, and the uncontradicted fact that such was the custom as applied to this transaction. The relevant rule of the Exchange is to the effect that where a delivery is not made in time the purchaser could not take advantage of the seller's default until after giving notice of intention to "close the contract," which notice it was conceded had not been given by defendants.

There being no dispute as to the facts in the case, it would seem to be clear that the plaintiffs were entitled to the judgment. Defendants, however, on the trial and upon this appeal, contend that the case is controlled by a previous decision of this court made under the following circumstances. The defendants here sued the Italian Discount Company upon a corresponding liability with that sought to be enforced in the instant case. Upon appeal to this court it was

Appellate Term, First Department, April, 1921.

[Vol. 115. held that the notice at the foot of defendants' confirmation regarding the applicability of the rules of the Stock Exchange was not a part of the contract between the defendants here and the Italian Discount and Trust Company, upon the authority of Poel v. Brunswick-Balke Collender Co., 216 N. Y. 310.

It is also urged by the defendants that since the same evidence was given by the same witnesses in the other case the decision on the appeal therefrom governs this case. It seems to be perfectly clear that no such conclusion can possibly follow, but that the contrary is manifestly true. The testimony of the custom in the case in which the present defendants were plaintiffs (if indeed any such testimony was given) was utterly irrelevant because it applies only where one of the contracting parties is a member of the Exchange. In the next place, it was held on the previous appeal that the mere appearance of an inscription on a paper sent by the plaintiffs there to the defendants there did not become a part of a contract between those two parties without evidence that the defendants there so understood. In the instant case the inscription on defendants' confirmation slip is at the very least an admission on defendants' part, and since plaintiffs have proved the custom which bound them as well as the defendants to the same effect as defendants' admission on the slip, we have conclusive evidence that the contract in the instant case was made with reference to that custom.

Judgment reversed, with $30 costs of this appeal, and judgment for $264 in favor of plaintiffs, with appropriate costs in the court below.

Judgment reversed, with thirty dollars costs.

Misc.]

Supreme Court, April, 1921.

PEOPLE OF THE STATE OF NEW YORK ex rel. THEODORE THOMSEN, Relator, v. COMMISSIONER OF CORRECTION, NEW YORK CITY, et al., Respondents.

(Supreme Court, Kings Special Term, April, 1921.)

Statutes - how far Eighteenth Amendment to the Constitution of the United States and the Volstead Act abrogate state statutes - habeas corpus - Laws of 1920, chap. 911.

The Eighteenth Amendment to the Constitution of the United States and the Volstead Act do not abrogate previously existing state statutes relative to trafficking in liquor, except in so far as they may be in open and direct conflict with the federal statutes. (P. 335.)

All provisions of state laws which tend fairly to the enforcement of said amendment and are not in direct conflict with the Volstead Act, remain unimpaired and may be enforced by the state courts.

(Id.)

The statute (Laws of 1920, chap. 911) relating to trafficking in "all distilled and rectified spirits, wine, fermented and malt liquors containing at least one-half of one per centum of alcohol by weight," though not altogether in harmony with the so-called Volstead Act, is void only in so far as it conflicts with the federal statutes. (P. 337.)

All those provisions constituting the greater portion of said statute of 1920 and which authorize the granting of a liquor tax certificate for the sale of liquor containing more than onehalf of one per cent of alcohol and not more than two and seventy-five hundredths per cent, violate the Federal Constitution, and any liquor tax certificates issued thereunder are void. (Pp. 337, 338.)

Where certain declarations within the body of said statute of 1920 show a legislative intent to give effect to the Eighteenth Amendment of the Federal Constitution and to absolutely prohibit the sale for beverage purposes of liquor deemed intoxicating, the court is justified in inferring that such was the dominating intent of the legislature; that the provisions authorizing the sale of liquors containing not more than two and seventyfive hundredths per cent of alcohol were subsidiary to the main purpose of the statute, so that even with the unconstitutional

Supreme Court, April, 1921.

[Vol. 115.

provisions exscinded, the legislature would still have passed the act. (P. 339.)

Section 8 of said statute of 1920 which though providing for excise taxes on trafficking in liquors makes no provision for the sale of liquor to be drunk on the premises except, in a city of the first or second class, in a 'restaurant where meals are furnished. Held, that as no license could legally be obtained under the statutes to sell, in such a place, liquor of any degree of alcoholic content, said section was separable from and independent of the statutory purpose to permit, under certain restrictions, the sale of so-called non-intoxicating liquors containing up to two and seventy-five one-hundredths per cent of alcohol. (P. 340.)

An information charging relator with a violation of the statutes of 1920 is not defective because the alcoholic content of the whiskey alleged to have been sold by him was not set forth and upon a traverse to the return to a writ of habeas corpus sued out by relator pending a hearing upon the informa tion before a magistrate he will be remanded. (Pp. 340, 341.)

TRAVERSE to return to writ of habeas corpus.

Charles E. Russell, for relator.

Harry E. Lewis, district attorney (Harry G. Anderson, assistant district attorney, of counsel), for respondents.

BENEDICT, J. This case comes before me upon a traverse to the return to a writ of habeas corpus heretofore issued herein. Relator was arrested for a violation of chapter 911 of the Laws of 1920, relating to trafficking in liquors. The writ was granted pending the hearing before a city magistrate. On behalf of the relator it is urged that the information does not charge any crime against defendant because the alcoholic content of the beverage alleged to have been sold by defendant is not set forth, and because the effect of the decision of the Supreme Court of the United States in the National Prohibition Cases, 253 U. S. 350, was

Misc.]

Supreme Court, April, 1921.

to render chapter 911 of the Laws of 1920 void in toto. That act defines liquors as "all distilled or rectified spirits, wine, fermented and malt liquors containing at least one-half of one per centum of alcohol by weight." Intoxicating liquors are defined as those containing more than two and seventy-five one-hundredths per cent of alcohol by weight, and non-intoxicating beverages as those containing not more than two and seventy-five one-hundredths per cent of alcohol by weight. § 2. The scheme of the act was to require payment of a tax and the issuance of a liquor tax certificate in order to obtain authority to sell liquors having one-half of one per cent of alcohol and not more than two and seventy-five one-hundredths per cent. Any person who traffics in liquors "without having lawfully obtained a liquor tax certificate " is guilty of a misdemeanor and subject to fine and imprisonment. $ 36, subd. 1.

The charge against defendant stated in the information is that on January 18, 1921, he "did unlawfully traffic in liquors without having secured a liquor tax certificate," and it is further alleged that the informer saw "three glasses of whisky" sold by relator to three men, one of whom paid for the same.

The case thus presents a question which, so far as I am informed, has not as yet been determined in this state or elsewhere, namely, whether an act in relation to traffic in liquors passed since the enactment of the so-called Volstead Act and not altogether in harmony therewith is void in toto or only void in so far as it conflicts with the federal statute. This involves a consideration of the meaning of the term "concurrent power" as used in the Eighteenth Amendment to the Federal Constitution, concerning which a great deal of confusion has arisen. Such confusion seems to me to have been wholly unnecessary, for the proper con

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