ing, and would never have incurred a debt of $35,000 for its own particular needs.

In this condition of things, the Legislature, by Laws of 1918, chapter 199, taking effect April 13, 1918, repealed article 11a of the Education Law, upon the faith of which the various school districts had acted. But in repealing article 11a the Legislature expressly declared (section 7) that obligations lawfully created under the act repealed before August 1, 1918, should not be impaired. It was provided that bonds and other evidences of debt issued by the town board to pay for the erection of a new building, or to remodel, enlarge, or improve an existing building, or for any purpose in connection with the schools within the territory of a particular school district, should be a charge upon the school district in which the building or site is located, or otherwise specially benefited or to be benefited by the proceeds of the debt. The section referred to provides for three separate situations which might be presented by the repeal of the law: (1) Bonds issued for the benefit of any particular school district. These bonds were to be chargeable upon the particular district. (2) Debts not represented by bonds, due or to become due on contracts for work on schools in a particular district. These were charged to the particular district. (3) And this is the situation presented in the case at bar, bonds which had been issued or contracts which had been made with respect to the schools in the town generally. This describes the $35,000 bonds referred to in the petition, which had been issued by the town unit for the benefit of the schools in all of the districts forming part of that unit. As to these bonds it is provided:

"The obligation thus created shall be apportioned among the school districts in proportion to benefits received or provided for. Such apportionment shall be made by the district superintendent after examining the facts at a public hearing."

The respondent district superintendent has apportioned the $35,000 indebtedness represented by the bonds among each of the five school districts which comprised the unit. The new school building is located in district No. 4, and it is provided in section 8 of the repealing act that school buildings and sites within a school district shall belong to such district, and the relators, residents and electors in the remaining school districts formerly part of unit No. 2, challenge the right of the superintendent to place any part of the debt upon districts other than that in which the building is located. They argue that under the repeal these other districts derive no benefit from the school, and that the children in the other districts have no right to attend it. In making his apportionment of the debt the superintendent made it a condition. that such pupils residing in districts 3, 5, 8, and 11, as may desire to enter any department of the Mahopac school, shall be allowed to do so without payment of tuition during the period of payment of the bonds. Although the privilege thus granted is not objected to by the school authorities in district No. 4, the relators say it is void, and that the superintendent had no power to impose the condition.

Certainly, the repeal of article 11a, whatever may have been the rea

(179 N.Y.S.)

sons inducing it, caused many complications. The bonds had been issued legally, and in the hands of the purchasers thereof were an obligation of each of the districts composing the unit, and chargeable against the property in each of the districts. The Legislature, in repealing the former law, could not and did not attempt to invalidate the security in the hands of the holders of the bonds. Each district represented by the relators is responsible, as well as the Mahopac district, in which the building is located, without reference to where the title to the school building is placed by the repealing act. In fact, it may well be asked how are the relators aggrieved by the action of the superintendent in apportioning the debt? While it does not affect the right of the holders of the bonds to collect from the property comprising the unit which issued the security, it gives each of the districts a fixed right to contribution from the other localities. The apportionment does not appear to be unjust as between the districts; if the superintendent had power to make it, he gives his reasons which would appear to justify his action. The Legislature attempts to adjust the situation created by the repeal by authorizing the apportionment of the debt among the constituent districts "in proportion to benefits received or provided for." When the town unit was broken up by the repeal statute, the districts other than No. 4 may have been deprived of their right to use the school in that district, although the superintendent has attempted to save to them that right, and it is not challenged in this proceeding by the school authorities in district No. 4.

But the question is: What was the situation at the date of the repeal? At that time benefits had been provided for them. The school building had been planned and was constructed so as to accommodate all of them. It was in view of the benefits to be derived by all of the districts that a building of these dimensions and this character was authorized and erected. The building was provided for all of the districts. If the Legislature in its wisdom saw fit, in 1918, to change the entire plan, this did not alter the situation as between the school districts. The school was their joint and several undertaking. If the children of the districts outside district No. 4 are barred from the school, a proposition which we are not called upon to decide, it would certainly appear to be an unnecessary hardship. But it would be unjust to place the entire debt upon a district which never intended to contract such an obligation on its separate responsibility, and this would appear to be contrary to the intention of the Legislature as expressed in section 7 of the repealing act.

The determination of the respondent district superintendent of schools should be confirmed, and the writ dismissed, with $50 costs and disbursements.

RICH, J. (dissenting). While the order made by the superintendent was undoubtedly equitable, it was unauthorized. The building is located in district No. 4. It is the district specially benefited, and though, in my opinion, the bonds are unimpaired, the bonded indebtedness is expressly chargeable to it. Furthermore, the Legislature re

pealed section 341 of the Education Law, which gave to children in other districts the right to attend the new school, and the superintendent acted without authority in directing that pupils of other school districts be permitted to enter the high school as a condition of the payment of the bonded indebtedness; and I must vote for reversal.

(190 App. Div. 483)

PEOPLE v. RUDOWSKY.

(Supreme Court, Appellate Division, First Department. January 16, 1920.) 1. LARCENY 55-FINDING OF FELONIOUS TAKING FROM POCKET NOT SUSTAINED BY EVIDENCE.

A conviction for feloniously abstracting the sum of $1,150 from the pocket of complainant in a subway car held not sustained by the evidence.

2. CRIMINAL LAW

1190-REVERSAL OF JUDGMENT OF CONVICTION A REVERSAL

OF ORDER DENYING NEW TRIAL.

Reversal of a judgment of conviction necessarily carries with it a reversal of order denying motion for new trial.

Appeal from Court of General Sessions, New York County. Samuel Rudowsky, indicted and tried as Samuel Rudolfsky, was convicted of the crime of grand larceny in the first degree, and he appeals. Judgment and order denying new trial reversed.

Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and PHILBIN, JJ.

Wahle & Kringel, of New York City (Charles G. F. Wahle, of New York City, of counsel), for appellant.

Edward Swann, Dist. Atty., of New York City (Felix C. Benvenga, of New York City, of counsel), for the People.

PHILBIN, J. This is an appeal from a conviction of grand larceny in the first degree. It was claimed by the prosecution that the defendant feloniously abstracted the sum of $1,150 from the pocket of the complainant.

[1] The proof was wholly inadequate to establish defendant's guilt. Neither the complainant nor his wife was able to swear that defendant had taken the money. The most that they could say was that the defendant stood next to the complainant in the subway car from 110th street to 116th street; that the defendant had a grip or valise, and pushed complainant with it. Neither saw the defendant put his hand into complainant's pocket. The prosecution relied upon the testimony of the complainant that he had the money when he got on the train at 110th street, and missed it at 116th street, and asks that the inference be drawn that defendant took it. The circumstances relating to the possession of the money by complainant before the alleged loss are so unlikely as to suggest grave doubt as to whether he really did have it on his person as claimed. There was no reason given why he should have had the money with him at the time. He was

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(179 N.Y.S.)

then on the way to see a friend, and it was not shown that any transaction with the latter was contemplated. Why the complainant should carry over $1,000 in his pocket from Friday till Monday is not satisfactorily explained. The story is highly improbable.

[2] The conclusion reached makes it unnecessary to pass upon the affidavits submitted by the defendant on the motion for a new trial, for in this case, the reversal of the judgment of conviction necessarily carries with it a reversal of the order denying said motion. However, we feel called upon to say that the statements sworn to on the application, and which tend to show a conspiracy to obtain a conviction of the defendant, are most serious, and should be made the subject of thorough investigation by the district attorney.

The judgment and order should be reversed, and a new trial granted. Settle order on notice. All concur.

(190 App. Div. 311)

JEROME v. NEW YORK RYS. CO.

(Supreme Court, Appellate Division, First Department. January 16, 1920.) 1. NEGLIGENCE 119 (7)-PLAINTIFF CAN RECOVER, THOUGH NEGLIGENCE OF THIRD PARTY, NOT JOINED AS DEFENDANT, CONTRIBUTED TO INJURY.

In action for injuries alleged to have been "caused wholly through the fault and negligence of the defendant," plaintiff was not required to prove that injuries were due solely to negligence of defendant, and was not precluded from recovering by proof that negligence of a third party, not joined as a defendant, contributed to injuries.

2. CARRIERS 306(4), 313-JOINT TORT-FEASORS LIABLE JOINTLY AND SEVERALLY.

Where injuries of passenger in collision of car with truck are due to negligence of both motorman and truck driver, the street railroad and truck owner are liable both jointly and severally, and neither has a right of contribution against the other, and is not entitled to have the other joined as a defendant in passenger's suit for damages.

Appeal from Trial Term, New York County.

Action by Florence Jerome against the New York Railways Company. From a judgment entered on a verdict for defendant, and from an order denying motion for new trial, plaintiff appeals. Reversed, and new trial granted.

Argued before CLARKE, P. J., and LAUGHLIN, SMITH, MERRELL, and PHILBIN, JJ.

Louis G. Hamburger, of New York City (Louis B. Brodsky, of New York City, of counsel), for appellant.

James L. Quackenbush, of New York City (B. H. Ames, of New York City, of counsel), for respondent.

LAUGHLIN, J. On the 28th day of May, 1917, plaintiff was a passenger on a north-bound Columbus Avenue car of the defendant, and sustained personal injuries in consequence of a collision between the car and a taxicab at a point on Columbus avenue about 100

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

feet north of Sixty-Sixth street, and this action was brought to recover therefor.

Testimony was given, by witnesses called on behalf of the plaintiff, tending to show that the taxicab with which the car collided was also going north on Columbus avenue; that the easterly carriageway of Columbus avenue in front of Healy's restaurant at the northeasterly corner of Columbus avenue and Sixty-Sixth street was occupied by automobiles, and that it was necessary for the chauffeur of the taxicab to turn onto the north-bound street railway track in order to pass; that, when he turned onto the track, he observed that the track was clear for the distance of 50 or 60 feet behind his cab; that, owing to the fact that there was an automobile going in the same direction on the track ahead of him and was being held back by other traffic, he was obliged to slow down somewhat, and that the street car came along and crashed into the cab with such violence that the plaintiff was thrown from her seat and injured. The defendant introduced testimony tending to show that the cab was going much faster than the street car, and passed it and turned onto the track when only a few feet in front of it, and that the motorman could not stop the car in time to avoid the collision.

It will thus be seen that the jury might have found that the collision was due solely to the negligence of the defendant's motorman, or solely to the negligence of the chauffeur of the taxicab, or to negligence on the part of both of them.

The learned court, in submitting the case to the jury, charged that the plaintiff, having elected to bring the action against the defendant. alone, without joining the owner of the taxicab or the chauffeur, was obliged to show that the collision was due solely to the negligence of the street railroad company, and could not recover if the jury found that the negligence of the chauffeur of the taxicab contributed thereto. To these instructions counsel for the plaintiff duly excepted, and he thereupon requested the court to instruct the jury that, if the motorman and chauffeur of the taxicab were negligent, plaintiff had a right to sue either or both or any one of the joint tortfeasors. The court refused so to charge, and an exception thereto was duly taken.

[1, 2] I am of opinion that the learned court misapprehended the law applicable to the situation, and erred in these instructions, and in refusing to charge as requested. It was not claimed that the plaintiff was guilty of contributory negligence, and the question of fact, therefore, with respect to the liability of the defendant, was whether or not her injuries were caused or contributed to by any negligence on the part of the defendant; for, if they were, it is wholly immaterial whether or not there was concurrent negligence on the part of another or others, because joint tort-feasors are liable both jointly and severally, and neither, in circumstances such as are here presented, has a right of contribution against the other, and therefore one is not entitled to have the others joined. Demarest v. Forty-Second Street Railroad Co., 104 App. Div. 503, 93 N. Y Supp. 663; Frank v. Metropolitan Street Railway Co., 91 App. Div.