3. Division of Counties. The inser-
tion in the Constitution, as an ad-
dition to the section relating to
assembly districts, of the clause:

Nothing in this section shall
prevent division at any time of
counties and towns, and the erec-
tion of new towns and counties by
the legislature," indicates an in-
tention to leave the legislature
free to exercise the power to
change the boundaries of counties
and towns, and to erect new towns
at any time in its discretion. Id.

4. Senate District - Change of Bound-
aries County Lines. Under the
Constitution of 1894, chapter 934
of Laws of 1895, as an act of an-
nexation, was within the constitu-
tional power of the legislature,
although it changed, as to the
twenty-second senate district, the
county boundaries of the district,
but such effect should be given to
the act as will least disturb the
general plan that senate districts
shall be bounded by county lines,
and this will be accomplished by
regarding the annexed territory
as still a part of that district for
the election of a senator.

Id.

8.

5. Construction of Chapter 934, Laws
of 1895 Assembly Districts
Power of Legislature to Divide
Counties. A construction of the
act of annexation which affirms
its validity as such, but leaves the
annexed territory part of the
twenty-second senate district and
of the second judicial district and
department, and within the juris- 9.
diction of the board of supervisors
of Westchester county for the
purpose of forming assembly dis-
tricts, most nearly harmonizes the
provisions of the Constitution re
lating to senate, judicial and
assembly districts and the power
possessed by the legislature to
divide counties and towns. Id.

6 Municipal Rights. The Annexa-
tion Act provided that the portion
of Westchester county annexed
thereby should thereafter consti-
tute a part of the city and county

Exemption from Liability for Acts
of Agents. The doctrine, that
where power is granted to a mu-
nicipal corporation as one of the
political divisions of the state, not
for the immediate benefit of the
municipality, but as a means to
the exercise of the sovereign
power for the benefit of all citi-
zens, the corporation is not liable
for non-user, nor for misuser, by
the public agents, is applicable
to counties, which, prior to the
County Law (Chap. 686, Laws of
1892), were not municipal cor-
porations, but were political di-
visions of the state and at most
only quasi corporations. Hughes
v. County of Monroe.
49

Monroe County - Insane Asylum
Non-liability for Negligence Re-
sulting in a Personal Injury. An
employee at the Monroe County
Insane Asylum, maintained by the
county for its insane, under chap-
ter 82, Laws of 1863, and chapter
633, Laws of 1870, was injured in
1891 while operating a steam
mangle in the laundry, and
brought an action against the
county to recover damages on the
ground of negligence. Held, that
the status of the county on the
day of the injury, which was
prior to the taking effect of the

County Law of 1892, must de-
termine its liability; and that the
county, while acting under the
above statutes of 1863 and 1870 in
caring for its insane, although
not then a municipal corpora
tion, was engaged as a political
division of the state in the dis-
charge of a public duty, and,
consequently, was not liable to
the plaintiff in damages for the
negligence of its agents. Id.

10. Revenue from Private Sources,
It appeared that, when possible,
the expense of maintenance was
collected from the estates of luna-
tics in the asylum, or from those
legally liable for their support,
and that the asylum received a
small sum annually from the sale.
of surplus farm products.
Held,
that the revenue derived from
these sources was merely inciden-
tal and tended to some little ex-
tent to lessen the public burden
assumed by the county, and was
in no sense a source of profit
which could be deemed to render
the operation of the asylum a pri-
vate business.
Id.

11. Onondaga County Clerk - Act
Making the Office Salaried — Time
of Taking Effect. Section 11 of
chapter 520, Laws of 1893, passed
May 2, 1893, entitled An act to
make the office of county clerk of
Onondaga county a salaried office
and to provide for the manage-
ment of said office, and to fix the
salary of said clerk and deputies,"
reads as follows: "This act shall
take effect on the first day of
January, 1895." Held, that the in-
tention of the legislature, as de-
duced from the whole act and
from its obvious purpose of
changing the compensation of the
office from fees to a salary, and
from the fact that the legisla
ture knew at the time of its pas-
sage that the official term of the
county clerk then in office would
expire on December 31, 1894, was
not that the actual existence of
the statute should commence
January 1, 1895, and that the
clerk who would be elected after
that date should be the first sub-
ject to its provisions, but that
the intention was that the provis-
ons of the act should take effect

upon and apply to the clerk who
was to take office on January 1,
1895. People ex rel. v. Butler. 164

12. Held, also, as a consequence of
holding that the act took effect
upon and was applicable to the
clerk who came into office on
January 1, 1895, that those pro-
visions of the act which required
action on the part of the board
of supervisors before that date
became operative in the fall of
1894.
Id.

13. Changing County Seat - Local
Bill-Constitution. A special act
of the legislature (such as chap.
148, Laws of 1893, relating to
Essex county), which undertakes
to validate an illegal and wholly
unauthorized resolution of a board
of supervisors, locating or chang-
ing a county seat, is a local act;
is an attempt to do indirectly what
cannot, within the provision of
the Constitution (Art. 3, § 18), be
done directly by the legislature,
and, consequently, is unconstitu-
tional and void. Williams v.
Boynton.
426

COURTS.

1. Extraordinary Oyer and Ter-
miner. It is not a valid objection
to the jurisdiction of an extraord-
inary Oyer and Terminer that the
proclamation of the governor con-
vening it appointed "an extra-
ordinary Court of Oyer and
Terminer" instead of an extra-
ordinary term of the Court of
Oyer and Terminer (Code Civ.
Pro. § 234), or that the proclama-
tion designated the extraordinary
Court of Oyer and Terminer to
be held on the same day as that
for which a regular term of the
Court of Oyer and Terminer in
the same county had, theretofore,
been properly appointed by the
justices of the Supreme Court.
People v. Shea,

2.

78

* *

*

cannot be obtained, "the Appel-
late Division of the Supreme
Court
may, upon ap-
plication, appoint three commis-
sioners," was not intended to take
effect on January 1, 1895 (Art. 15,
§ 1), but is intended to take effect
on January 1, 1896, when the
creation of the Appellate Division
goes into effect (Art. 6, § 2), and
until the latter date the General
Terms of the Supreme Court con-
tinue to have the jurisdiction
heretofore possessed by them to
entertain such applications. In re
Rapid Transit R. R. Comrs.

-

260

3. Construction of Federal Statute
by Federal Court Effect on State
Court. When a question of statu-
tory construction of an act of
Congress which has been deter-
mined by the Supreme Court of
the United States arises in a state
court, the state court should fol-
low the construction of the federal
court, on the principle of comity,
although the case in which the
question arises is one where the
ultimate jurisdiction is vested in
the state court. York v. Conde.

486

4. Infants' Real Property-Mort-
gage Power of Equity. A court
of equity has no inherent power
to direct a mortgage of the real
property of infants; its power in
this respect is purely statutory.
Losey v. Stanley.
560

-

5. Mortgage by Trustee Infants'
Estate Outside of Trust - Power of
Court. The vested interests in
remainder of infants which are not
included in a trust estate for life
cannot be included in a mortgage
by the trustee under direction of
the court by virtue of the proviso
added by the Laws of 1886 (Chap.
257), as an amendment to the
65th section of the Statute of
Uses and Trusts (1 R. S. 730), '
whereby a trustee under direction |
of the court or judge may in a
proper case be allowed to mort-
gage or sell the real estate held in
trust.
Id.

COURT OF CHANCERY.
See LANDLORD AND TENANT, 1.

COVENANTS.

See ARBITRATION.

DEEDS, 5, 6, 9, 12, 13.
LANDLORD AND TENANT, 1, 4.

CRIMES.

1. Indictment for Murder — Motion
to Dismiss-- Grand Jury. A mo-
tion was made to the trial court
to dismiss an indictment for mur-
der, on the ground, among others,
that certain persons, not officers
of the law, had issued and dis
tributed to each person on the
grand jury list a circular letter ad-
vising them as to their duties, and
on other questions prejudicial to
the defendant. The motion was
based upon affidavits of the de-
fendant and his attorney, and the
only fact proved was the distri-
bution to grand jurors of a circu-
lar signed by the chairman and
secretary of a "Committee of
Public Safety," reminding the
jurors of the importance of their
duties, stating some of their
powers as evidenced by citations
from the statutes, offering to fur-
ther advise them if they would
call at the headquarters of the
committee of the methods by
which each grand jury could do
effective work, and stating that
the efforts of the committee were
not for political or sectarian effect.
The motion was denied. Held,
that, assuming that the Court of
Appeals has jurisdiction to re-
view the determination of the
court below on this point, which
is doubted, there was no ground
set forth which was sufficient in
law to justify the trial court in
dismissing the indictment, and the
defendant had no ground of com-
plaint based upon the denial of
his motion, it appearing that there
was no proof that any man was
on the panel who was not a legally
constituted juror, or even an alle-
gation that the evidence given
before the jury was incompetent
in its nature or insufficient, if be-
lieved, to warrant the indictment.
People v. Shea.

78

2. Murder Trial - Motion to Post-
pone. A motion to postpone a
trial for murder was made upon

1. Libel-Province of the Jury. The
amount of damages in an action
for libel is particularly within the
province of the jury; they may
give nominal damages, or dam-
ages to a greater or less amount as
they shall determine; they may
accord damages which are merely
compensatory, or damages beyond
mere compensation, called puni-
tive or vindictive damages, by
way of example or punishment,
when in their judgment the de-
fendant was incited by actual
malice or acted wantonly or reck-
lessly in making the defamatory
charge. Holmes v. Jones.

59

2. Libel-Evidence in Mitigation —
The Pleadings. While a defend-
ant cannot show, in mitigation
of damages for a specific libel,
other and disconnected immorali-
ties on the part of the plaintiff,
but can attack only the plaintiff's

general character, yet where two
charges in an alleged libelous pub-
lication relate to the same subject-
matter and are not disconnected
and independent, and the plaintiff
submits only one of the charges to
the jury, although the other
charge was also counted on in the
complaint and justified in the
answer, the defendant may, under
certain circumstances, give evi-
dence in substantiation of such
other charge, in mitigation of
damages on the charge submitted
to the jury.
Id.

3. Elevated Railroad Actions
Damages when the Plaintiff has
Parted with Title. When, in an
action against an elevated railroad
company for an injunction with a
prayer for damages, the defendant
company has had knowledge for a
long period before the trial, of the
plaintiff's conveyance of the abut-
ting property to a third party, not
a party to the action, but has taken
no steps to obtain a trial upon the
law side of the court, and has
suffered the plaintiff to proceed
and give evidence upon the trial at
an Equity Term without objec-
tion, it may be deemed to have
waived the right to go to a jury
on the question of past damages
sustained by the plaintiff up to
the time of his conveyance of the
property; and, under such cir-
cumstances, the trial court, hav-
ing jurisdiction both in law and
equity, may settle the litigation
between the parties, so far as en-
titled to do so, by an award of the
rental damage sustained by the
plaintiff while holding he legal
title to the premises. Pegram v.
N. Y. El. R.K. Co.
135