magistrate for the support of his wife or chil- in the performance of some act or duty of a dren." It will be noted that by this amendment there are stricken from this subdivision of section 901 the words found therein at the time of the Goetting decision, to the effect that the undertaking executed by the delinquent should be conditioned that he would "indemnify the county, city, village, or town against their becoming, within one year, chargeable upon the public." The words directly expressive of the idea of indemnity which lay at the bottom of Judge Gray's opinion are stricken out. Peo personal nature was excused because of Lathrop's liability for the support of his wife did not cease even if he became insane, and unquestionably the liability to pay a weekly sum for the support of his wife could be enforced against his estate even though he was personally incapacitated. In re Shaper v. Estate of Wing, 2 Hun, 671; Stuckey v. Mathes, 24 Hun, 461. I do not deem it necessary to consider the question whether the appellant would have been relieved from liability if it had appeared that Lathrop had become incapacitated to support his wife by reason of insanity By said amendatory act section 904 was also amended by providing that the undertaking required to be given under section 901 should be forfeited "by the failure to make the weekly payments ordered by the magis-accruing after the undertaking was executed, trate." Under the provisions of the Code of Criminal Procedure as they thus were at the time appellant's undertaking was executed, construed in the light of this series of very significant amendments, not only to them, but to the related provisions of the charter of the city of New York, eliminating any expression of the idea that the undertaking was one simply of indemnity, and providing expressly that the failure to make the weekly payments provided by the undertaking should work a forfeiture thereof, I think it is clear that the appellant's contention that it must be proved that the public treasury has actually suffered through the family of the delinquent becoming a public charge is not sustained, and that respondent was entitled to recover without such evidence. [2] So far as concerns the other attempted defense, I do not think that the evidence offered by the appellant, and which was excluded by the court, tended to establish that he was relieved from liability on his undertaking by reason of the insanity of Lathrop accruing after the undertaking was executed. and in addition it had appeared that he was possessed of no property or means from which payment could be made of the sum ordered to be paid, for in my opinion the evidence does not fairly present that situation. The testimony does not, to my mind, indicate that any condition of insanity arose after the undertaking was executed and within the year covered thereby, and I fail to find any evidence whatever that Lathrop possessed no means or property from which could be made the payments which he was ordered to make, and payment of which in effect the appellant guaranteed. I think the judgment should be affirmed, with costs. WILLARD BARTLETT, C. J., and WERNER, CUDDEBACK, MILLER, and CARDOZO, JJ., concur. COLLIN, J., concurs in result. Judgment affirmed. (212 N. Y. 283) MUCK V. HITCHCOCK et al. (Court of Appeals of New York. July 14, 1914.) 1. RELIGIOUS SOCIETIES ( 20*)—PROPERTY— SALE-STATUTORY PROVISIONS. Religious Corporations Law (Consol. Laws, c. 51), 12, providing that a religious corporation shall not sell or mortgage any of its real property without applying for and obtain [3] The judgment convicting Lathrop of being a disorderly person and the undertaking executed by appellant were founded on the liability of Lathrop to support his wife. The judgment convicting him of being a disorderly person because he did not do this necessarily established that he was liable and able to support her at the time the judging leave of the court, applies only to domestic ment was rendered, and appellant on wellestablished principles cannot, in this action, question the force of this judgment or dispute the recitals in and consideration for the undertaking which he executed. Decker v. Judson, 16 N. Y. 439; Harrison v. Wilkin, 69 N. Y. 412. corporations, and not to a foreign corporation owning real estate in this state, especially as the courts could not satisfactorily determine whether the interests of the corporation would be promoted by a sale, nor direct the disposition of the proceeds of sale, as required by General Corporation Law (Consol. Laws, c. 23), § 73, whenever any corporation is required by law to apply to the court for leave to mortgage, lease, or sell real estate. [Ed. Note.-For other cases, see Religious Societies, Cent. Dig. §§ 130-143; Dec. Dig. 20.*] The obligations of this undertaking were not necessarily conditioned on the delinquent's ability to work and personally earn the money which he was required to pay for the support of his wife, and in this respect it differed from the obligations involved in General Corporation Law, § 21, providing the cases cited by appellant, where default that any foreign corporation may take by de•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 2. RELIGIOUS SOCIETIES (§ 20*)-PROPERTYSALE-STATUTORY PROVISIONS. [Ed. Note.-For other cases, see Religious Societies, Cent. Dig. §§ 130-143; Dec. Dig. § 20.*] vise any real property situated within the state | Hitchcock received a deed of the property and hold it for not exceeding five years and under which he went into possession and convey it by deed or otherwise "in the same now claims title to the land. The defendmanner as a domestic corporation," does not require a foreign religious corporation to obtain ants Hitchcock and Welch, as the court permission from the court to sell its real prop- found, "purchased said lands of said aserty, as required of domestic corporations by sociation knowing that such association had Religious Corporations Law, § 12. made the contract to sell the same to this plaintiff." The action is against Hitchcock and his wife to compel them to deliver a good and sufficient deed of the lands in question to the plaintiff. The defendant the Millennial Association made default. The court at Special Term held that the plaintiff could not enforce her contract against the defendants because permission of the court to make a conveyance under that contract had not been obtained by the association, and the 3. APPEAL AND ERROR (§ 169*)—REVIEWQUESTIONS NOT RAISED BELOW. Where the facts giving rise to questions urged in the Court of Appeals were not pleaded or proved or found by the trial judge, such questions would not be passed upon. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1018-1034; Dec. Dig. 169.*] Appeal from Supreme Court, Appellate complaint was dismissed, without costs. At Division, Fourth Department. the Appellate Division the court was divided. Action by Elvira E. Muck against S. Ed- The minority was in favor of granting the ward Hitchcock and others. A judgment dis-relief demanded in the complaint, but a mamissing the complaint was reversed by the jority of the court concurred in an opinion Appellate Division, Fourth Department (149 App. Div. 323, 134 N. Y. Supp. 271), and judgment directed for plaintiff for insufficient relief, and plaintiff appeals. Reversed, and new trial granted. to reverse the judgment and allow the plaintiff to recover of the defendant the $50 which she had paid to the Millennial Association, with interest, and also the costs of the action, and provided that upon payment of such amounts the contract between the association and the plaintiff should be canceled. A judgment was entered accordingly, and the plaintiff appeals. The record contains only the judgment roll. Milton E. Gibbs, of Rochester, for appellant. Albert C. Olp, of Rochester, for respondents. CUDDEBACK, J. (after stating the facts as above). [1] Section 12 of the Religious Corporations Law (Consol. Laws, c. 51), provides as follows: "Sec. 12. A religious corporation shall not sell or mortgage any of its real property without applying for and obtaining leave of the court therefor pursuant to the provisions of the Code of Civil Procedure," etc. This action was brought to compel the specific performance of a contract to convey real property. The defendant, the American Millennial Association, is a religious corporation, organized under the laws of Massachusetts, with its headquarters at Boston in that state. On and prior to February 21, 1908, the association was the owner of certain land situate in Livingston county, in this state, not used, so far as it appears, for its corporate purposes, and held as devisee under the will of one Ansel Jenne. On that day the association made a contract with the plaintiff to convey the land to her for the sum of $600. Fifty dollars was paid by the plaintiff to the association at the time of the agreement, and the balance of the purchase price, $550, was to be paid on or before July 1, 1908. It is claimed by the plaintiff that the association waived the requirement that the balance of the purchase price should be paid on or before July 1, 1908, and that thereafter, and in the month of December, the plaintiff tendered the amount due and demanded of the association a deed. The association refused to carry out the contract, or to return the $50 which it had received. The question as to the validity of the tender is not before the court. In January, 1909, the defendant Welch made a contract with the defendant association to purchase the land in Livingston county for the sum of $1,400. This contract he subsequently assigned to the defend- | A. 548, 37 Am. St. Rep. 601. ant S. Edward Hitchcock. Proceedings to In my opinion the words of section 12 of authorize a sale pursuant to this latter con- the Religious Corporations Law should be tract were taken under the statute in the limited in like manner to domestic corporaCounty Court of Livingston county, and on tions. The object of the state in requiring February 23, 1909, the defendant S. Edward a religious corporation to obtain leave of the It has been held that broad words in a statute conferring powers and privileges on "a corporation," or on "any corporation," apply only to corporations organized under the laws of this state. "The Legislature in such cases is dealing with its own creations, whose rights and obligations it may limit, define, and control." Matter of Balleis, 144 N. Y. 132, 133, 38 N. E. 1007, 1008; White v. Howard, 46 N. Y. 144, 165; Colquhoun v. Hedden, L. R. (25 Q. B. D.) 129; Saltmarsh v. Spaulding, 147 Mass. 224, 17 N. E. 316; United States v. Fox, 94 U. S. 315, 24 L. Ed. 192; Alfred University v. Hancock, 69 N. J. Eq. 470, 46 Atl. 178; Vanderpoel v. Gorman, 140 N. Y. 563, 35 N. E. 932, 34 L. R. court before conveying its real property is to protect the society and its members from loss through unwise bargains, and to prevent perversion of the association's property. The state owes no service of that kind to foreign corporations. Indeed, it would be imprac ticable for the courts of this state to exercise such visitorial power over a foreign corporation. Our courts do not know the needs of the foreign association, and they cannot determine with any satisfaction, as the statute requires (General Corporation Law [Consol. Laws, c. 23], § 73), whether the interests of the association will be promoted by the sale of its land in this state or not, nor can they, with any satisfaction, direct what disposition shall be made of the proceeds of sale. Furthermore, after the sale, the courts of this state would in most cases lose jurisdiction of the foreign corporation and its property. The power of visitation over for eign corporations can be exercised effectually only by the courts of the association's domicile. For these reasons, I think it should be said that the law of this state prohibiting religious corporations from selling their real property without leave of the court, does not extend to foreign corporations. thorize the conveyance by a foreign corporation under the General Corporation Law. It is only by grace of section 21 of the General Corporation Law that the Millennial Association could take and hold the land devised to it. The Legislature could, of course, impose any condition it saw fit upon the right of the association to so take and hold the property. Christian Union v. Yount, 101 U. S. 352, 354, 25 L. Ed. 888. The condition which the Legislature imposed was that the association should dispose of the land within five years. That condition was not made dependent in any degree upon obtaining leave of the court to convey. The defendants further contend that if the statutes of this state do not apply, still the Millennial Association could not, at common law, convey its land without leave of the court (Madison Ave. Baptist Church v. Baptist Church in Oliver St., 46 N. Y. 131; Dudley v. Cong. of St. Francis, 138 N. Y. 451, 34 N. E. 281), and, the presumption being that the common law prevails in Massachusetts, permission of the court was necessary before the Millennial Association could execute a conveyance under its contract with the plaintiff. It may be doubted whether the common law, which is the same in effect as section 12 of the Religious Corporations Law, would [2] It is, however, argued on behalf of the defendants that under section 21 of the General Corporation Law, the Millennial As-apply to a conveyance required by section sociation could not convey its land without leave of the court. Section 21 reads thus: "Sec. 21. Any foreign corporation * may take by devise any real property situated within this state and hold the same for not exceeding five years * * * from the time when the right to the possession thereof vests in such devisee, and convey it by deed or otherwise in the same manner as a domestic corpora tion." 21 of the General Corporation Law. It may also be doubted whether the law of Massachusetts, whatever it may be, can control or regulate the ownership and transfer of land in this state under the circumstances here presented. Nicholson v. Leavitt, 4 Sandf. 252, 276; Hosford v. Nichols, 1 Paige, 220, 226; Boyce v. City of St. Louis, 29 Barb 650, 652; McCormick v. Sullivant, 10 Wheat. 192, 6 L. Ed. 300; Goddard v. Sawyer, 9 Allen (Mass.) 78; Thompson v. Swoope, 24 Pa. 474; White v. Howard, 38 Conn. 342. The defendants rely upon the final words of this section, which read thus: "And convey it by deed or otherwise in the same manner as a domestic corporation." The [3] However, it is not necessary to pass argument is that this clause requires a foreign religious corporation to obtain permis- upon those questions now, nor upon the quession of the court before conveying its real tion as to the power of the Millennial Associproperty in this state the same as a domestication under its charter to convey land. The corporation. facts which give rise to such questions were Section 21 includes all classes of foreign not pleaded, or proved, or found by the trial corporations, and is not confined to those judge, and for that reason the questions are not before the court. Gordon Malting Co. formed for religious or similar purposes. The statutes of this state prescribe certain. Bartels Brewing Co., 206 N. Y. 528, 100 solemnities which shall attend the transfer N. E. 457, 461; Harris v. White, 81 N. Y. of title to real property, and it was those 532, 544; Monroe v. Douglass, 5 N. Y. 447; solemnities and nothing more that the Legis- Portsmouth Livery Co. v. Watson, 10 Mass. lature had in mind. Saltmarsh v. Spaulding, supra; Hosford v. Nichols, 1 Paige, 220, 226. The same reasoning upon which it has been said that the visitorial power of the court over religious corporations applies only to corporations formed under the laws of this state leads to the conclusion that the sanction of the court is not necessary to au 91. I, therefore, recommend that the judgment appealed from be reversed, and a new trial granted, with costs to abide the event. CHASE, COLLIN, HOGAN, MILLER, and CARDOZA, JJ., concur. WILLARD BARTLETT, C. J., concurs in result. Judgment reversed, etc. (212 N. Y. 249) PEOPLE v. THOMPSON. (Court of Appeals of New York. July 14, 1914.) Because of the reception of this evidence the Appellate Division, as appears from the memorandum opinion there pronounced, reversed the conviction, holding that "the court 1. CRIMINAL LAW (§ 369*)-EVIDENCE-OTH- erred in admitting testimony as to subseER OFFENSES. While in general it is error to receive evidence that an accused has committed a criminal offense other than that charged in the indictment, yet such evidence is admissible where it has a natural tendency to corroborate or supplement admitted direct evidence. quent offenses by the defendant upon the person of the female involved," and granted a new trial. We do not agree with the Appellate Division in the view thus taken. [1] It is a general rule that it is error to receive evidence, as proof of the offense [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.*1 charged, that an accused has committed a 2. CRIMINAL LAW (§ 372*)-EVIDENCE-PRIOR Criminal offense other than that charged in the indictment. Evidence which tends only ACTS. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. § 372.*] 8. CRIMINAL LAW (§ 372*)—EVIDENCE-SUBSEQUENT ACTS. In a prosecution for statutory rape, evi- to prove collateral facts, and has not a natudence of prior acts of sexual intercourse be- ral tendency to establish the fact in controtween the parties is admissible to establish the guilty animus between them and the existence versy, should be excluded because: (a) It of a sexual passion as elements in proving the would have a tendency to withdraw and offense on or before the date charged in the in- mislead the attention and deliberation of dictment. the jury from the real issue under inquiry; and (b) would subject the accused to charges unconnected with that issue and against which he had no reason to prepare a defense. In a prosecution for statutory rape on a People v. Grutz, 212 N. Y. 72, 105 N. E. 843; specified date, acts subsequent to that charged People v. Molineux, 168 N. Y. 264, 291, 61 N. in the indictment, reasonably indicating a con- E. 286, 62 L. R. A. 193; People v. Sharp, 107 tinuity of the lascivious disposition, are relevant, subject to the rule that when the admis- N. Y. 427, 456, 466, 14 N. E. 319, 1 Am. St. sibility of the evidence depends on collateral Rep. 851; People v. McLaughlin, 150 N. Y. facts it is the duty of the trial judge to pass on the fact in the first instance, and then, if he admits the evidence, to charge as to its purpose and effect and to exclude it if there should be a different opinion on the preliminary mat ter. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. § 372.*] Appeal from Supreme Court, Appellate Division, Second Department. John Thompson was convicted of rape in the second degree, and from an order of the Appellate Division unanimously affirming the facts as found, but by a divided court reversing for errors of law (161 App. Div. 948, 146 N. Y. Supp. 1106), the People appeal. Reversed, and judgment of conviction affirmed. Edward A. Freshman, Asst. Dist. Atty., of Brooklyn, for the People. David F. Price, of Brooklyn, for respondent. COLLIN, J. The defendant was convicted of the crime of rape in the second degree under the provision of Penal Law, § 2010 (Consol. Laws, c. 40): 365, 44 N. E. 1017. This rule has, however, exceptions in those cases in which the evidence offered has a natural tendency to corroborate or supplement admitted direct evidence. People v. Duffy, 212 N. Y. 57, 105 N. E. 839; People v. Molineux, 168 N. Y. 264, 293, 61 N. E. 286, 62 L. R. A. 193; People v. Neff, 191 N. Y. 210, 83 N. E. 970; Rex v. Bond, 21 Cox C. C. 252; People v. Dolan, 186 N. Y. 4, 78 N. E. 569, 116 Am. St. Rep. 521, 9 Ann. Cas. 453; People v. Katz, 209 N. Y. 311, 326, 103 N. E. 305; People v. Peckens, 153 N. Y. 576, 594, 47 N. E. 883; People v. Doty, 175 N. Y. 164, 67 N. E. 303; People v. Marrin, 205 N. Y. 275, 98 N. E. 474, 43 L. R. A. (N. S.) 754; People v. Place, 157 N. Y. 584, 598, 52 N. E. 576; People v. Shea, 147 N. Y. 78, 99, 41 N. E. 505; Mayer v. People, 80 N. Y. 364. [2] And the doctrine is now well, if not universally, established that in prosecutions for adultery, seduction, statutory rape upon one under the age of consent and incest, acts of sexual intercourse between the parties prior to the offense charged in the indict"A person who perpetrates an act of sexual ment may be given in evidence. The reason intercourse with a female, not his wife, under or reasons sustaining the doctrine may be the age of eighteen years, under circumstances not amounting to rape in the first degree, is guil-apprehended by recent statements of the ty of rape in the second degree, and punishable courts in applying it. In Director of Pub. with imprisonment for not more than ten Pros. v. Ball, 6 Crim. App. Rep. 31, a case years." of incest, evidence tending to show acts prior to and of the character of that charged was received. The Court of Criminal Appeal reversed the conviction on account of its reception (5 Crim. App. Rep. 238), and was in turn reversed by the House of Lords, for whom the Lord Chancellor said: The female involved gave testimony, under her direct examination as a witness for the prosecution, in proof that the offense charged in the indictment was committed, and additionally, under the overruled objection and exception of the defendant, that subsequent to the commission of it the defendant had sexual intercourse with her four or five times. "I consider that this evidence was clearly admissible on the issue that this crime was committed, not to prove mens rea, as Mr. Jus-held that, giving full effect to the principle tice Darling considered, but to establish the that subsequent acts of a similar character guilty relations between the parties, and the existence of a sexual passion between them as may show the adulterous disposition of the elements in proving that they had illicit con- parties and corroborate the proof that the nection in fact on or before the dates charged. specific act charged was committed, the subTheir passion for each other was as much ev- sequent acts testified to had not such conidence, as was their presence together in the bed, of the fact that when there they had guilty nection with or relation to the antecedent relations with each other. I agree that the act as to show a mutually amorous disposicourts of law ought to be very careful to pre- tion between the parties on January 13, 1894, serve the time-honored law of England that the court saying: you cannot convict a man of one crime by proving that he has committed some other crime. That, and all other safeguards of our criminal law, will be jealously guarded, but here I think the evidence went directly to prove the actual crime for which these parties were indicted." "Doubtless the extent to which such testimony may be admitted must, in a large measure, be determined by the trial judge in the exercise of a sound discretion. But there are bounds to his discretion. The evidence offered must at least have a legitimate tendency to show a lewd or adulterous disposition between the parties at or about the time when the offense is laid in the indictment." 25 App. Div. 589, 50 N. Y. Supp. 987. In Boyd v. State, 81 Ohio St. 239, 90 N. E. 355, 135 Am. St. Rep. 781, 18 Ann. Cas. 441, a case of incest, evidence of sexual intercourse between the parties through the two The reasoning of the Freeman Case is months last prior to the date of the act sound and salutary. The preponderance of charged was held relevant as tending to es-judicial opinion now is that acts subsequent tablish the particular act in controversy, be- to the act charged in the indictment (as well cause it showed the relation and familiarity as those prior to it) reasonably indicating a of the parties, their disposition and antece- continuity of the lascivious disposition, are dent conduct toward each other, and was relevant, subject, however, to the rule that corroborative of the testimony of the prose- when the admissibility of evidence depends cuting witness. In State v. Schueller, 120 upon collateral facts, the regular course is Minn. 26, 138 N. W. 937, a case of statutory for the trial judge to pass upon the fact in rape, the reception of similiar evidence was the first instance, and then, if he admits the approved on the theory of disclosing the re- evidence, to instruct the jury as to its purlationship between the parties, opportunity pose and effect, and to exclude it if they and inclination to commit the act complained should be of a different opinion on the preof, and as corroborative of the specific liminary matter. The question for the jury charge. The reasoning and conclusion of throughout the trial is, Is the defendant guilsuch decisions have our approval. ty of the specific offense charged in the in· [3] The judicial decisions are not, however, dictment? But when that offense involves in harmony in determining the question illicit sexual intercourse by consent, subsewhether or not illicit acts subsequent to that quent offenses of like character between the charged are relevant and admissible in cases parties may be relevant, because the extreme of the character above mentioned. While intimacy and the amorous inclination and this court has not directly considered it, willingness evidenced by its commission are courts of the state have answered it in the a growth preceding the offense, and are negative. People v. Robertson, 88 App. Div. rather nourished than annihilated by their 198, 84 N. Y. Supp. 401; People v. Farina, exercise. They do not suddenly arise and 134 App. Div. 110, 118 N. Y. Supp. 817; Peo- are not likely to suddenly disappear; hence ple v. Bills, 129 App. Div. 798, 114 N. Y. Supp. it is that their indulgence prior or subse587. The respondent cites the case of Peo-quent to the specific occasion charged may ple v. Flaherty, 162 N. Y. 532, 57 N. E. 73. It is weightless as to the question under consideration. The error found in it was that the defendant throughout the seven days of the trial was unable to ascertain which of seven offenses testified to by the complainant he was indicted and to be tried for. See, also, State v. Acheson, 91 Me. 240, 39 Atl. 570. In People v. Freeman, 25 App. Div. 583, 50 N. Y. Supp. 984, affirmed 156 N. Y. 694, 50 N. E. 1120, on the opinion below, the defendant was convicted of the statutory crime of rape in the second degree, committed on January 13, 1894. Evidence of acts of a similar character between the same parties intermediate May 9 and June 11, 1894, was admitted against the objection and exception of defendant. There was no proof of familiarity or association between them within the period from January 13 to May 9, 1894. It was tend to increase and strengthen the proof as to that occasion. The acts offered as corroborative may be so remote as to be irrelevant. Remoteness, however, does not necessarily result from mere lapse of time, which is not necessarily an element of it. Its essence is such a want of open and visible connection between the evidentiary and the principal facts that, all things considered, the former are not worthy or safe to be admitted in proof of the latter. If those acts are of a character or were done under conditions not tending to prove the illicit desire and willingness at the time of the offense charged, they should be rejected by the trial judge. If, on the other hand, he deems them so related, by brevity of time or continuity of lewdness or otherwise to the principal act as to justify the inference or as to indicate that the mutual disposition of the parties evidenced by |