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and 121 New York State Reporter of this business, and, as we have already seen, Mrs. Flagg had a direct pecuniary interest in the sale and the consideration paid therefor; and the fact that she insisted that a part of such consideration should be this debt and a given rate of interest does not make the contract usurious, nor does it possess under such circumstances a single element of that vice. We reach the conclusion, therefore, that the plaintiff has standing to enforce this contract for the benefit of the estate which she represents.

Nor was the failure to show that there were no outstanding creditors of the firm of Fisk, Clarke & Flagg remaining unpaid at the time of the commencement of the action an answer thereto. The defendants were in no position to take advantage of such fact, if it be admitted to exist. They had repudiated the contract as void, and refused to recognize it as a subsisting liability which they were bound to discharge; consequently they cannot repudiate the contract and then take advantage of a clause they might have insisted upon had they fulfilled its terms. The court is not now concerned with the rights of creditors as against the claim here asserted.

The debt and its amount was established to exist from the ledger of the firm, independent of its recognition in the contract, and the offer of all of the books of the firm in evidence by the defendant was therefore properly excluded. No item was pointed out in the offer which showed that it had any bearing upon the amount, or which would contradict the ledger account; nor was it otherwise pointed out wherein, or how, any items contained therein would tend to defeat plaintiff's claim. We think the court was therefore right in directing a verdict for the full amount of the claim.

The judgment entered thereon should therefore be affirmed, with costs. All concur.

WESTERN NEW YORK INSTITUTION FOR DEAF-MUTES v. YATES

COUNTY (Supreme Court, Appellate Division, Fourth Department. April 5, 1904.) 1. DEAF-MUTE-EDUCATION BY COUNTY-CHANGE OF PARENTS' RESIDENCE-EF

FECT ON COUNTY'S LIABILITY.

Laws 1892, p. 56, c. 36, $ 2, provides that any parent, guardian, or friend of a deaf-mute child over 5 and under 12 may apply to the overseer of the poor of any town or to any county supervisor where such child may be, showing "that the health, morals or comfort of such child may be endan. gered or not properly cared for,” and it shall be the duty of such officer to place the child in one of several named institutions. Laws 1875, p. 188 c. 213, $ 3, provides that such children shall be maintained therein "at the expense of the county from whence they came” until they are 12 years old, and section 4 provides that such expenses shall be raised and collected as are other expenses “of the county from which such children shall be received." Held, that the fact that the parents of a deaf-mute, during the period for which a county had contracted to become liable for the child's support at a certain institution, acquired a residence in another county, did not relieve the county of liability. Submitted controversy by the Western New York Institution for Deaf-Mutes against the county of Yates. Judgment for plaintiff.

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Argued before McLENNAN, P. J., and SPRING, WILLIAMS. HISCOCK, and STOVER, JJ.

William A. Sutherland, for plaintiff.
M. A. Leary, for defendant.

SPRING, J. The plaintiff is a corporation, located in the city of Rochester, designed for the education of deaf-mutes, and was incorporated in pursuance of chapter 319, p. 447, of the Laws of 1848, and receives pupils conformably to the regulations of the State Board of Charities. Article 8, § 14, State Const. Under the statutes of the state a deaf-mute over 5 years and under 12 years of age may be maintained in a deaf-mute institution, at the expense of the county from which he is received, until the pupil reaches the age of 12 years. Chapter 325, p. 546, Laws 1863, as amended by chapter 180, p. 473, Laws 1870, and chapter 36, p. 56, Laws 1892. The statutory provision is that "any parent, guardian or friend of a deaf mute child within this state, over the age of five years and under the age of twelve years, may make application to the overseer of the poor of any town, or to any supervisor of the county, where such child may be, showing by satisfactory affidavit or other proof that the health, morals or comfort of such child may be endangered or not properly cared for”; and thereupon it shall be the duty of such officer to place such child in one of the institutions named, which includes the plaintiff. Section 2, c. 36, p. 56, Laws 1892. It is further provided that the children placed in said institutions "shall be maintained therein at the expense of the county from whence they came, provided that such expense shall not exceed three hundred dollars ($300.00) each per year, until they attain the age of twelve years.” Section 3, c. 213, P. 188, Laws 1875. And, again, that such expenses "shall be raised and collected as are other expenses of the county from which such children shall be received," upon bills properly authenticated. Section 4, C. 213, P. 188, Laws 1875. Alice Ethel Eddy, a deaf-mute child, was born in the county of Yates in July, 1891, and her parents resided in that county in 1896, when, upon the certificate of the supervisor of the town in which they resided, the child was received by the plaintiff, as a deaf-mute, “for the term of seven (7) years from the 20th day of July, 1896, to the 20th day of July, 1903 (she being then twelve years of age) to be educated and supported therein during that period, at the expense of the county of Yates.” The child has since remained with the plaintiff up to July 20, 1903, and the charges for her support were paid by said county until October 1, 1898. The parents of the child resided in that county until April, 1898, when they removed to Ontario county, where they have since resided. This action is to recover for the maintenance and education of said deaf-mute from October 1, 1898, to July 20, 1903.

The defendant contends that when the parents lost their residence in the county of Yates it ceased to be liable for the support of their child, as her residence became that of her parents. We do not accept this contention. The essence of the statute authorizing the reception of deaf-mute children in one of the state institutions is contained in the provision that the health, morals or comfort of such child may be and 121 New York State Reporter endangered or not properly cared for,” and upon satisfactory proof of that fact it becomes the duty of the supervisor or overseer of the poor to place such child in one of the institutions designated. The original statute (section 2, c. 325, p. 546, Laws 1863) required that the officer to whom the application was made should be satisfied that the parents of the child "are in indigent circumstances," but that provision is not contained in the amended statute, although we apprehend the change is unimportant in the consideration of this case. In any event, the reception of deaf-mute children in these institutions is authorized solely by the statute, and in plain language it charges the expenses of their maintenance upon the county from whence they came. There is no provision requiring the directors of the institution to keep track of the parents of the children, and to transfer the liability as their county residence may change. The obligation is imposed upon the application of the named officer residing in the county where the child lives; and, when the liability is once created, it continues without change as long as the child remains an inmate of the institution, until, at the age of 12 years, by another provision of the statute, he becomes a state pupil. The original charge was contractual in its nature, voluntarily assumed, as the statute prescribed, by the county of Yates, including the continuance of the liability for the period of seven years. The county of Ontario was in no way responsible for the placing of the unfortunate in the institution, and there is no provision of law by which the burden can be shifted upon it. Our conclusion is that the fact that during the continuance of the seven years for which the county of Yates became liable to pay the plaintiff for the support and maintenance of the deaf-mute her parents acquired a residence in another county did not operate to change the contract liability of the county of Yates, and which was imposed upon it by virtue of the statute.

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The plaintiff is entitled to judgment for $1,441.67, with interest, in accordance with the stipulation, together with the costs of this action. All concur.

FULLER v. McDERMOTT.

(Supreme Court, Appellate Term. March 24, 1904.) 1. CITIZENS-CIVIL RIGHTS-VIOLATION-PROOF.

A negro born in Africa is not entitled to recover a penalty under Laws 1895, c. 1042 (Laws 1895, p. 974), entitled "An act to protect all citizens in their civil and legal rights," for a saloon keeper's refusal to serve him with a glass of beer in a saloon because of his race and color, without proof

that he was a citizen, either native or naturalized. Appeal from Municipal Court, Borough of Manhattan, Eleventh District.

Action by William Fuller against George McDermott. From a Municipal Court judgment dismissing the complaint, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Wilford H. Smith, for appellant.
Josiah T. Newcomb, for respondent.

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BLANCHARD, J. This action was brought to recover a penalty under chapter 1042 of the Laws of 1895, entitled "An act to protect all citizens in their civil and legal rights.” Laws 1895, p. 974. The plaintiff is a negro of African descent, and was born in Africa. His contention is that the defendant violated the statute by refusing to serve him with a glass of beer at a liquor saloon in the city of New York because of his race and color. At the trial the complaint was dismissed. The plaintiff did not plead or prove that he was à citizen, either native or naturalized. This was essential to his cause of action.

The judgment should be affirmed, with costs. All concur.

MONAHAN et al. v. INTERURBAN ST. RY. CO.

MEYERS V. SAME. (Supreme Court, Appellate Term. March 24, 1904.) 1. STREET RAILROADS–CONTRIBUTORY NEGLIGENCE.

Where a driver, knowing that a car was coming, heedlessly drove in front of it without taking any pains to avoid a collision, he was guilty of contributory negligence. Appeals from Municipal Court, Borough of Manhattan, First District.

Actions by Thomas Monahan and others and by John J. Meyers against the Interurban Street Railway Company. From judgments in favor of plaintiffs, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Henry W. Goddard and William E. Weaver, for appellant.
William H. Klinker, for respondents.

SCOTT, J. The evidence clearly showed that the driver, Meyers, was guilty of contributory negligence. He saw the car coming, and deliberately drove in front of it. He says himself that when he first entered Second avenue at Seventy-Eighth street, coming from the west, he saw the north-bound car at Seventy-Seventh street, coming north. He was walking his horses, and did not look for or see the car again until he was struck. Meanwhile he had walked his horses from the westerly side of the avenue across the westerly half of the avenue and the westerly track, and his truck was on the easterly track. Some of the witnesses were apparently not very intelligent, or at least did not express themselves clearly, but the general effect of their testimony is that the driver, knowing that the car was coming, drove heedlessly in front of it without taking the slightest pains to avoid a collision.

Judgment in each case should be reversed and a new trial granted, with costs to the appellant to abide the event. All concur.

s 1. See Street Railroads, vol. 44, Cent. Dig. $ 214.

and 121 New York State Reporter

FELDMAN V. SIEGEL et al.

(Supreme Court, Appellate Term. March 24, 1904.) 1. VACATING ATTACHMENT-APPEAL.

An order vacating an attachment is not appealable. 2. SAME-DISMISSAL OF ACTION.

Where the summons in an action against copartners was personally served on one of them, the action should not be dismissed on vacating an attachment therein, under Laws 1902, p. 1519, c. 580, $ 90, providing that the vacation of an attachment does not affect the jurisdiction of the court to determine the action, where the summons was personally served on the defendant, or where judgment may be taken against him as being indebted

jointly with another defendant who has been summoned. Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Samuel Feldman against Jacob Siegel and another. From an order vacating an attachment and dismissing the action, plaintiff appeals. Modified.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Charles Firestone, for appellant.
Goldfogle, Cohn & Lind, for respondents.

SCOTT, J. The order appealed from, in so far as it vacates the attachment, is not appealable. Leavitt v. Katzoff (Sup.) 86 N. Y. Supp. 495. It goes further, however, and dismisses the action. This was not authorized. Section 90, C. 580, p. 1519, Laws 1902, provides that the vacation of the attachment does not affect the jurisdiction of the court to hear and determine the action, where the defendant has appeared generally in the action, or where the summons was served personally upon him, or where judgment may be taken against him as being indebted jointly with another defendant who has been thus summoned or has thus appeared. In the present case the claim seems to be against the defendants as copartners, and the return shows that the summons was personally served upon the defendant Siegel. Hence. although the justice may have been right in vacating the attachment, he should have retained the action.

The order must be modified by striking out so much thereof as purports to dismiss the action, which should be remitted to the Municipal Court for disposition. No costs of this appeal to either party. All concur.

BORGIO V. GANGE. (Supreme Court, Appellate Term. March 24, 1904.) 1. BROKERS–SALE OF REAL ESTATE-WRITTEN AUTHORITY-COMMISSIONS.

A real estate broker is not entitled to recover commissions for procuring customers for the purchase of real estate for defendant, in the absence

of proof of written authority from the owner to offer the property for sale. Appeal from Municipal Court, Borough of Manhattan, Sixth District.

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