up litigation for litigation's sake only, declared to be a public evil in Matter of Clark (184 N. Y. 222, 233). (See State of Washington ex rel. Kenneth Mackintosh, Pros. Atty. v. Rossman, 21 L. R. A. [N. S.] 821; Chreste v. Commonwealth, 171 Ky. 77-97; People ex rel. Armstrong v. Warden, etc., 183 N. Y. 223, 226.)

Despite the telegram of June 17th I cannot conclude that the final action of the court was sustenance of the demurrer. Section 326 of the Code of Criminal Procedure provides that the court must give judgment upon the demurrer, either allowing it or disallowing it, and an order to that effect must be entered in the minutes. The only order returned in the record is that which overrules the issues of law arising upon the demurrer. The caption contains the date June 14th, but the order does not show the date of the entry. We have not grounds, or similar grounds, for the assumption made in People v. Canepi (181 N. Y. 398, 19 N. Y. Crim. 383).

The objection that more than one crime was charged in the indictment could be taken only by demurrer. (Code Crim. Proc. $331.) And I think, as will hereafter appear, justice to the defendant does not require consideration from us whether more than one crime was charged in the indictment.

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*

It is contended that the prosecution failed because “not one witness was produced to establish the essential elements of the crime charged, viz., the engaging in the prohibited acts as a business for pecuniary gain or the employment of the defendant as agent by any lawyer." "Business" is a broad generic word. In Parker Mills v. Commissioners of Taxes (23 N. Y. 244), Selden, J., says that this word embraces everything about which a person can be employed. In Flint v. Stone Tracy Co. (220 U. S. 171), Day, J., for the court repeats this language and defines the words as "That which occupies the time, attention and labor of men for the purpose of a livelihood or profit," quoting Bouvier. But a business does not imply an exclusive occupation; a series of acts may constitute a business.

(Bouvier, supra, citing Harris v. State, 50 Ala. 127-130; Parker Mills v. Commissioners of Taxes, supra.) The People called 11 witnesses from whom the defendant solicited employment for lawyers. The People read in evidence business cards which the defendant used in his work of solicitation. Four witnesses testified that the defendant offered to take their respective cases for 40 per cent of the recovery. It appeared that the defendant named different lawyers as the prospective attorney in the particular case; that in one instance he offered money to a third party as a procurer, and there was proof that the defendant admitted that he was "engaged in the business of getting cases."

It is true that there is no direct proof that the doing of this business was for profit or as a livelihood. The alternative is that the defendant engaged in this pursuit at the call of friendship or altruism. This may be dismissed in consideration of the undisputed testimony that he demanded 40 per cent of the recovery, and that his solicitations were not confined to any single attorney. The defendant offered no evidence. And no reason is suggested why he should have followed such calling without any idea of gain or profit for himself. It seems to me that the facts permit of but one reasonable conclusion that the defendant made a business to solicit employment for a lawyer or lawyers.

The first count charges that the defendant did engage in and make it a business to solicit of divers persons employment for a lawyer and divers lawyers. The second count charges that the defendant did furnish an attorney or counselor to render certain legal services for and in behalf of, etc. Assuming that these are distinct offenses, they are both misdemeanors, and the rule is that the joinder of several misdemeanors does not justify a reversal as error if the sentence be single and appropriate to any of the counts. (Polinsky v. People, 73 N. Y. 65; People v. Budd, 117 id. 1; affd., 143 U. S. 517.) When the court charged the jury, it was careful to instruct them that "the

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question to be decided by you is a very simple one, and it is a single question. Did this defendant make a business of soliciting work for a lawyer?" Again, the court said: "The charge against the defendant is that he made a business of doing that, and unless you find from the proof that he did make a business of soliciting business for a lawyer or for lawyers, he cannot be convicted under this indictment." The learned court then defined "business," and again said, "did this defendant make a business of soliciting law business for a lawyer? Was that his occupation? Was that his vocation?

*

* * That is the question you have to decide in this case.” While the minutes show that the jury found the defendant guilty as charged, I think that we may properly assume that the deliverance was upon the question submitted by the court. In Schultz v. State (135 Wis. 654) the court say: "True, they found the defendant guilty as charged, but this must be held to mean guilty as charged in the information under the instructions of the court." Examination of the record fails to reveal even one exception taken to the relevancy of the evidence offered by the People.

I advise affirmance.

RICH, PUTNAM, KELLY and JAYCOX, JJ., concur.

Judgment of conviction and orders affirmed.

SUPREME COURT-APPELLATE DIVISION

FIRST DEPARTMENT.

October 15, 1920.

THE PEOPLE EX REL. ATTY.-GENL. v. SPECIAL TERM, PART 1 ET AL.

(193 App. Div. 463.)

(1) PROHIBITION-WHEN MAY ISSUE.

A writ of prohibition may be issued only against a court or other tribunal possessing judicial powers when it is without jurisdiction or is proceeding or threatening to proceed in excess of its jurisdiction.

(2) SAME JURISDICTION OF SPECIAL TERM TO SET ASIDE INDICTMENT FOUND AT EXTRAORDINARY TRIAL TERM WHEN LATTER IS IN RECESS.

A Special Term of the Supreme Court in the First Judicial District has jurisdiction to entertain a motion to set aside an indictment which was presented against the defendants at an Extraordinary Trial Term. (3) SAME.

It seems, that while the jurisdiction in such cases is not confined to the particular part or term of the Supreme Court in which the indictment is found or has been transferred, it is not optional whether to move there or elsewhere, for manifestly if the part or term of the court in which indictments have been found, or to which they have been transferred, were in session, it would tend to bring the administration of justice into disrepute and would seriously interfere with the orderly administration of judicial work for another part or term of the court to entertain jurisdiction in such cases.

(4) SAME-NO APPEAL FROM DETERMINATION OF SPECIAL TERM.

But since the Extraordinary Trial Term was not in session at the time the motion was made to the Special Term it was a matter addressed to the sound discretion of the justice presiding at the Special Term, whether the motion should be entertained, and over his determination thereon the Appellate Division has no supervision by appeal or otherwise.

APPLICATION by the relator, Charles E. Newton, for an alternative writ of prohibition to restrain Special Term, Part 1, of the Supreme Court in and for the county of New York, and the justice presiding thereat and each of the defendants from taking any further proceedings with respect to a motion

made by the defendants, Charles F. Murphy and others, for the dismissal of a joint indictment charging them with the crime of conspiracy presented against them on the 22d day of June, 1920, at an Extraordinary Trial Term of the Supreme Court, presided over by Mr. Justice Weeks.

The petition of the relator shows that the Extraordinary Trial Term of the Supreme Court was duly appointed by the Governor to convene on the 11th day of August, 1919; that the Governor duly designated Mr. Justice Weeks to preside thereat, and that pursuant to the order of the state executive, a grand jury to serve at said term was duly drawn; that the Governor duly required the Attorney-General to attend in person or by deputy to manage and conduct before the court and the grand jury certain proceedings specified in the order of the executive and that the Attorney-General duly appointed. William Rand as Special Deputy Attorney-General for those purposes; that the day after the indictment was filed, a plea of not guilty was interposed for each of the defendants and leave was given to them to withdraw their plea and to move or demur as they might be advised on or before the fourth day of October; that on the twenty-ninth day of June the court took a recess until the fourth of October, at which time it would convene again; that no further step or proceeding, except an application to the same Special Term on the 21st of July, 1920, for an inspection of the minutes of the grand jury and for a copy thereof which was granted, was taken by any of the defendants until the 7th of September, 1920, when the indicted defendants gave notice of a motion returnable on the thirteenth of that month at Special Term, Part 1, at which Mr. Justice Wagner was presiding, to set aside the indictments and the grounds upon which it was made were: (1) that it was found without warrant of law; (2) that there was no sufficient legal evidence before the grand jury to support it; (3) that illegal and incompetent evidence of a grossly prejudicial character was submitted to and heard by the grand jury and constitutes