poration's acquiescence in Momand's representations of his authority. Full inquiry by the plaintiffs before cashing the check would have disclosed authority to borrow and indorse this check; that Momand's authority had, but 10 days before, been explicitly upheld in the Supreme Court of this county, a circumstance more convincing than is commonly disclosed to a prospective indorsee by his precedent inquiries.

After the case was closed, the plaintiffs' counsel, in the course of oral argument, suggested that he might well be given leave to reopen the case, in order to present detailed testimony as to the manner and the items of the expenditure of the $550, and the $105.23 obtained by Momand from the plaintiffs. Defendant's counsel objected, and moreover stated that such further testimony would inevitably hinge upon the same fundamental issue already presented in the case, viz., the extent of Momand's authority to act for the corporation. Inasmuch as it is the unchallenged showing of the present record that all moneys were expended by Momand for what he deemed corporate purposes and defendant's counsel failed to act upon the court's explicit admonition to develop on cross-examination the details of these expenditures if he doubted that this would necessarily be true, were it determined that Momand had authority to act for the corporation in such matters at all, it has seemed unnecessary to grant the plaintiffs' application.

The judgment herein will therefore award to the plaintiffs the entire fund with accrued interest. Counsel may submit findings of fact and conclusions of law which they wish passed upon by the court, and subsequently embody in a decision herein all of the findings and conclusions made at the request of either party. In view of the circumstances of the submission, no costs will be allowed to either party. Judgment accordingly.

(86 Misc. Rep. 426)

PEOPLE on Complaint of WILSON v. SINCLAIR.,

(Court of General Sessions, New York County. July 9, 1914.)

1. DISORDERLY CONDUCT (§ 1*)-ELEMENTS OF OFFENSE.

Laws 1882, c. 410, § 1458, provides that every person in the city and county of New York shall be guilty of disorderly conduct tending to a breach of the peace, who in any thoroughfare or public place shall commit any of the following offenses: "(3) Every person who shall use any threatening, abusive, or insulting behavior with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned." Held, that to sustain a conviction for such offense it must be shown that at the time of its commission accused was in a thoroughfare or public place; that he used threatening, abusive, or insulting behavior, or that such behavior was with intent to provoke a breach of the peace, or that a breach of the peace might thereby be occasioned.

[Ed. Note. For other cases, see Disorderly Conduct, Cent. Dig. §§ 1-8; Dec. Dig. § 1.*]

2. DISORDERLY CONDUCT (§ 1*)-SERIES OF ACTS-ISOLATION-LAWFULNESS. In a prosecution for breach of the peace, the fact that defendant's acts, separately considered, were lawful was no defense where, taken together, *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

they are prohibited and amount to unlawful behavior tending to a breach

of the peace.

[Ed. Note.-For other cases, see Disorderly Conduct, Cent. Dig. §§ 1-8; Dec. Dig. § 1.*]

3. DISORDERLY CONDUCT (§ 1*)-ACTS OF OTHERS.

In a prosecution for conduct tending to create a breach of the peace, defendant is chargeable, not only with what he personally did, but also with what he directed and caused others to do; his conduct being considered in conjunction with the acts of such others.

[Ed. Note. For other cases, see Disorderly Conduct, Cent. Dig. §§ 1-8; Dec. Dig. 1.*]

4. DISORDERLY CONDUCT (§ 1*)-ELEMENTS-"THREATENING"

"ABUSIVE."

Laws 1882, c. 410, § 1458, provides that any person who shall use any threatening or insulting behavior with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, shall be deemed guilty of disorderly conduct. Held, that the word "threatening" means “indicating or containing a threat or menace, evidencing some impending evil, portending something, the act of menacing or charging or enjoining with menace or with implied rebuke," while "abusive" means "using ill treatment, injurious, improper, hurtful, offensive, reproachful," so that a threat within such act need not be verbal, but may be by act, and this though the act be innocent in itself apart from the attendant circumstances which attach significance.

[Ed. Note. For other cases, see Disorderly Conduct, Cent. Dig. §§ 1-8; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 8, p. 6965.]

5. DISORDERLY CONDUCT (§ 1*)-ELEMENTS OF OFFENSE.

Where defendant, occupying no relation toward R., whom defendant believed to be responsible for certain public occurrences in another state, severely criticised him in public speech and then sought to reprobate him by parading in processional form in the street with companions, all wearing crape, opposite a building where R. had his office, with knowledge that there would probably be persons there who would resent such conduct and might cause a breach of the peace, defendant and his companions, though intending themselves to act peaceably, were guilty of threatening, abusive, and insulting behavior whereby a breach of the peace might be occasioned in violation of Laws 1882, c. 410, § 1458, declaring that such conduct shall constitute disorderly conduct.

[Ed. Note. For other cases, see Disorderly Conduct, Cent. Dig. §§ 1-8; Dec. Dig. § 1.*]

Upton Sinclair was convicted of threatening, abusive, or insulting behavior with intent to provoke a breach of the peace, and he appeals. Affirmed.

Charles S. Whitman, Dist. Atty., of New York City (James E. Smith, Dep. Asst. Dist. Atty., of Olean, of counsel), for the People. Gilbert E. Roe, of New York City, for defendant.

CRAIN, J. This is an appeal from a judgment of a Magistrate's Court convicting the defendant of disorderly conduct tending to a breach of the peace in violation of section 1458 of chapter 410 of the Laws of 1882. The material part of this section provides that:

"Every person in said city and county shall be deemed guilty of disorderly conduct that tends to a breach of the peace, who shall in any thoroughfare or public place in said city and county commit any of the following offenses, *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

that is to say: 3. Every person who shall use any threatening, abusive, or insulting behavior with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned."

[1] Before a person can be lawfully convicted of having violated subdivision 3 of this section the evidence must establish: (1) That at the time of the commission of the offense the offender was in a thoroughfare or public place; (2) that he used threatening, abusive, or insulting behavior; and (3) in the alternative that such behavior was with intent to provoke a breach of the peace, or that a breach of the peace might thereby be occasioned. It is not urged that there was any erroneous ruling in the admission or rejection of evidence, and the rightfulness of the judgment of conviction is to be determined by the applicability of subdivision 3 of the section in question to the defendant's behavior as shown by the evidence.

It appears from the record that at some undisclosed time antedating the defendant's arrest he attended, according to his testimony, a public meeting at Carnegie Hall and there heard a speaker comment on the alleged killing of some women and children during alleged labor troubles in Colorado. The defendant appears to have believed what he heard, and, as a result, to have felt indignation (Sten. Mins. p. 28) against an unidentified Mr. Rockefeller to an extent that for a brief period thereafter he felt, to use his language, "capable of going down to 26 Broadway and forfeiting Mr. Rockefeller." S. M. p. 28. Thereafter and on the evening preceding the defendant's arrest there was a called meeting of certain persons (S. M. p. 29), attended by about 60 (S. M. p. 28). Its purpose, according to the defendant, was to consider some methods of peaceable protest (S. M. p. 29), presumably against the conduct of those supposed to have been responsible for the death of the women and children referred to. This meeting was addressed by the defendant, among others. It appears that in his remarks the defendant alluded to his attendance at the meeting at Carnegie Hall, and said in substance that he had heard a story of oppression and brutality, and of the actual physical torture of women and children and of deliberate murder so hideous and revolting that he came away from the Carnegie Hall meeting thrilling with a sense of indignation (S. M. pp. 27, 28), and that he thought that there was at least half an hour when he would have been "capable of going down to 26 Broadway and forfeiting Mr. Rockefeller." The defendant testifies that he said this to the public (S. M. p. 28), and that he expressed to the public his abhorrence of acts committed of which no facts had been published (S. M. p. 28), still presumably alluding to such alleged acts of oppression, brutality, and murder.

As explaining what he meant by going down to No. 26 Broadway and "forfeiting" Mr. Rockefeller the defendant says that he proceeded to add in this public address that he knew that if he did that he would only be "piling violence upon violence," an that he would be using some of the methods which he (referring to Rockefeller) was himself using, and that therefore he (the defendant) could accomplish nothing. by it (S. M. p. 28). The defendant then proceeded in such public address to say that he in substance soliloquized with himself as follows:

"I will try to think if there is not something that I can do which will bring home to Mr. Rockefeller's conscience which will at the same time be dignified, which will be honest and true, and which will contain no element of violence and will not lay me open in any way to the charge of having descended to Mr. Rockefeller's own level." S. M. p. 25

-presumably the alleged level of violence.

During the course of the defendant's address (S. M. p. 28) some one in the audience spoke for about three or four minutes (S. M. p. 29), and said that he believed that the Colorado miners striking were right in resorting to violence, and that his motion would be to proceed to organize a committee to raise funds and go out and fight with the Colorado miners (S. M. pp. 28, 29), and these remarks, according to the defendant, met with the very evident approval of a large number of people present (S. M. p. 29). The defendant says that he then realized (presumably as the result of this speech of the person in the audience) how serious the matter was to him, the defendant, and that so realizing it he said:

"If there is anybody here who feels that they want to reply to Mr. Rockefeller's violence with violence that is their right, but I don't think that they should come to this meeting, which was called for considering a peaceable method." S. M. p. 29.

The defendant says: That persons came to the "called meeting" who intended to support him, the defendant (S. M. p. 29), but that considerably more than half of the audience, after the remarks of the unnamed speaker, were piqued at the defendant's attitude, and withdrew to another room, and that the defendant was left with a comparatively small group of people (S. M. p. 29). That he, the defendant, then talked to such people most "carefully and precisely" as to what they were going to do. That in this connection he cautioned • them not to speak to any one, not to reply to any insults, not to résist if they were attacked, not to make any protest, but to go quietly (presumably if placed under arrest), and not to attempt to excite the crowd or appeal to the crowd in any way. S. M. p. 30. That he advised against the carrying of flags or banners. That he recommended the wearing of crape upon the arm. That he said:

"We will go down to that building and we will walk in group quietly up and down the street, and if the crowd becomes so great that we can no longer walk, we will go away until the crowd has dispersed, then we will come back and walk again."

That he begged that if there was any one unable to maintain selfcontrol not to come, and that he urged that if there was any one not in sympathy with this attitude as thus expressed that such a one should not come. S. M. p. 30.

At a little after 10 o'clock on the morning after the called meeting at which the defendant delivered his address and gave his instructions, the defendant appeared on the sidewalk in front of the Standard Oil Company's building at No. 26 Broadway. One or two of his codefendants who had been in attendance at the called meeting referred to preceded him and were already there. He says that at least 20 newspaper reporters got around him as soon as he appeared, and that

8 or 10 camera men began to take pictures, and that in connection with such attempts the camera men began to drive the street boys away, while about 100 people lined up at the curbstone on both sides of the street. That he, the defendant, had announced the fact that he came there to indicate his grief for the killing of 30 or 40 whom he says. he believed were deliberately killed in a strike war in Colorado. That he said he was there because of an important purpose, and that he began to walk up and down in front of the premises in question while the other defendants fell in behind him two by two, and that at the time when the trouble occurred he estimated there were about 300 present. That one or more of the defendants carried flags, but that he did not see the flags until after his arrest. That he himself was startled by the flags. That he thought that he had made a mistake in permitting the other defendants to form directly behind him, as he and the others had no permit for a parade. That the carrying of the flags was a misfortune, as they tended to justify interference on the part of the police. That he had thought that there would be no more of a crowd than the police could fairly be expected to handle, and that if there had been a thousand people there, he would have gone away and have had nothing to do with it. S. M. p. 32. That if the police had attended at the beginning there would have been no such crime as they described and no necessity for arresting him (S. M. p. 32), and that it was his opinion that if the condition which prevailed in front of No. 26 Broadway, as described by himself, had prevailed elsewhere over the city, it would have led to Mr. Rockefeller giving way to the Colorado strikers (S. M. p. 38).

One of his codefendants as a witness describes the arresting officer as appearing to be frightened at what was occurring, and says that at one time the crowd surged around the defendant, Sinclair (S. M. p. 36), but that she had seen more dangerous crowds (S. M. p. 35). The arresting officer testified that in his opinion there were more than 1,000 persons present at the time of the defendant's arrest, and that the crowd was increasing all the time. That it blocked the sidewalk and partially the roadway. That the defendant was requested to desist and would not do so and was, in conjunction with his companions, placed under arrest.

One of the occupants of the Standard Oil Company's building testified to seeing the increasing crowds and the defendant and his companions, the way in which they marched, and the banners they carried, one being a white banner with a bleeding heart and four black borders, and that the sidewalk of the street was impassable, and that the occurrences detailed lasted for about half an hour.

The record thus discloses that something had happened in Colorado which the defendant regarded as reprehensible and for which he considered some one in New York at least partially responsible. He wished to publicly rebuke that some one and to influence by such rebuke the conduct of the one rebuked, and having explained by public speech this purpose and the significance of that which he was about to do, he associated with himself others who subordinated themselves to his will and acted pursuant to his directions, and thereupon with