Water street property was not permitted until after Daniel's death without issue, and hence the proceeds thereof, as personal estate, could not find their way into the residuum provided for in the twelfth paragraph, nor benefit any of the persons named therein, until the death of Daniel without issue. The general intent, I take it, of the twelfth paragraph, is to give such property as the children might be entitled to thereunder to them or their issue, or to such as survive at the time such property fell in; and this is especially true of all property that might fall in before the death of the widow, Eliza, for the intent is very clearly expressed that such property as she held in trust, and as was undisposed of by her, should be on her death divided only among the survivors of the four children therein mentioned, provided the children who predeceased her left no issue. If I am right in interpreting the intention of the testator that the persons mentioned in the twelfth paragraph should take their interest at the time that the proceeds of the Water street property were added to the personal estate, the appellant Rebecca O'Brien has no interest therein, for she was not an issue of Frederick, who predeceased the widow, Eliza, leaving no issue. Of the four children mentioned in the twelfth paragraph, Thomas and Frederick died without issue. While Augusta died before Daniel, she left issue; and Eliza died subsequent to Daniel. Our conclusion, therefore, is that Frederick Murphy, under whom the appellant claims, had no vested interest in the Water street property or its proceeds at the time of his death, and could pass nothing therein by will, and that the surrogate's decree that the Cunningham heirs would be entitled to one-half thereof, and the Becker heirs to one-half thereof, is correct.

Certain parties to the record have appealed from so much of the surrogate's decree as allowed the executor certain moneys for services rendered in an accounting instituted by Mary R. Murphy, as executrix of Frederick Murphy, deceased, to compel him to account for the interest and income of a life estate to which Frederick Murphy was entitled under the eighth clause of the will of Thomas Murphy, the elder. It was admitted that these charges were fair and reasonable. We think that the learned surrogate decided correctly that, even though that accounting had to do with the income of a fund held under a separate trust from that created in the residuary clause of the will, yet it was proper that these expenses should be paid out of the general estate, for the reason that, on the termination of the trust created by the eighth clause of the will, the fund went into the residuary estate.

The decree should be affirmed, with one bill of costs to each party to the record who filed briefs in this court. All concur.

and 140 New York State Reporter

(55 Misc. Rep. 38.)

BRICK v. FAVILLA et al.

(Chautauqua County Court. June, 1907.)

COSTS-ON APPEAL-AMENdment to Case.

Code Civ. Proc. § 3053, provides that a justice's return, on appeal. must contain all the proceedings, including the evidence and judgment. Section 3063 provides that the appeal must be heard on the original papers or certified copies of the same. Section 3251 provides that costs as therein prescribed may be allowed for making and serving amendments to a case. Held, that where, on appeal to the Appellate Division from a judgment of the County Court on appeal from a Justice's Court, the record as contained in the return of the justice to the County Court was changed, in that the evidence was abbreviated and reduced to narrative form by the attorneys of the respective parties, costs for such amendment to the case were not allowable; no provision being made for such change, and the same not being within section 3257.

Motion by Matthew Favilla and another, defendants, for a retaxation of costs in an action wherein Henry F. Brick was plaintiff. Item objected to disallowed.

See 101 N. Y. S. 970, 103 N. Y. S. 1117.

Nelson J. Palmer, for appellant.

Stearns, Thrasher & Sullivan, for respondent.

OTTAWAY, J. This is a motion made by the defendants for the retaxation of a bill of costs. An objection is made to the item of $20 for making and serving amendments to a case. This action was tried in Justice's Court. An appeal was taken to the County Court. The judgment of Justice Court was reversed. An appeal was then taken to the Appellate Division, and the judgment of the County Court sustained. The plaintiff and respondent presented a bill of costs to the clerk of Chautauqua county, and caused to be taxed an item of $20 for making and serving amendments to the case. His attorneys insist that this was a proper item to be taxed, for the reason that the record, as contained in the return of the justice to the County Court, was changed and abbreviated for use before the Appellate Division. It is claimed that the evidence contained in the justice's return was in the form of questions and answers, and this was reduced to narrative form by the attorneys representing the parties to this action. It is claimed that this furnishes a basis for the allowance of this item. We cannot agree with this contention.

Section 3053 of the Code of Civil Procedure provides that a justice's return must contain all the proceedings including the evidence and the judgment. Section 3063 provides that the appeal must be heard upon the original papers or certified copies of the same.

The record upon appeal to the Appellate Division is presumed to be the same as used before the County Court. No provision is made for any changes. The changes made by the attorneys of the respective parties and their stipulation following the changes so made "that the foregoing is a true copy of the whole of the original justice's return," etc., does not furnish sufficient basis for the allowance of this item. Where no statutory right to charge or allow costs is shown, no legal

right exists. It does not appear that any amendments were prepared and served as contemplated by section 3251 of the Code of Civil Procedure.

The item of $20 is disallowed, with $10 costs to the defendants.

HAPGOODS v. BARRETT.

.(Steuben County Court. October 9, 1907.)

BILLS AND NOTES-VALIDITY-EMPLOYMENT AGENCY-ILLEGAL FEES.

Notes given to an employment agency for the procurement of a position, representing fees demanded by the agency in excess of those authorized by Laws 1904, p. 1055, c. 432, § 5, are void.

[Ed. Note. For cases in point, see Cent. Dig. vol. 7, Bills and Notes, $ 225.]

Appeal from Justice Court.

Action by the Hapgoods against James P. Barrett. From a judgment for plaintiff, defendant appeals. Řeversed.

Francis M. Cameron, for appellant.
Whiteman & Hill, for respondent.

BURRELL, J. The defendant was induced to go to the city of New York to accept a position held open for him by the plaintiff; he having formerly made application on one of the printed blanks of the plaintiff for a permanent position, to be secured for him by the plaintiff. Upon reaching the office of the plaintiff he was informed by one of the persons in charge that the position had been filled, and the defendant was kept there several days for the plaintiff to find him another position; the plaintiff finally securing for him a temporary position, where he only worked two weeks, when the person who had formerly held the position returned and took the position again, this being the understanding and agreement under which the defendant went to work, and the evidence shows that the plaintiff understood the conditions and that the employment was temporary. Notwithstanding that, the plaintiff exacted of the defendant the sum of $30, in the form of two notes of $15 each, payable to the plaintiff, as its fee for securing said temporary position, and further required the defendant to assign his wages or salary to be received from such position to the plaintiff, with power of attorney to the plaintiff or one of its agents for the payment of the same, which assignment was attached to said notes. The defendant only worked two weeks. The notes not being paid when due, this action was brought by the plaintiff; and from the judgment obtained against him the defendant has appealed.

It seems very conclusive, from all of the evidence in the case, that the plaintiff was an employment agency, and as such came under the provisions of chapter 432, p. 1053, of the Laws of 1904, relating to employment agencies. The evidence shows that the position secured by the plaintiff for the defendant was only temporary, yet the notes on which the judgment was obtained, and which represented the fees demanded by the plaintiff for such service on its part, were greatly

and 140 New York State Reporter

in excess of the fees provided for by section 5, c. 432, p. 1055, of the Laws of 1904, and were therefore illegal and void. Indeed, the fees thus demanded and received by the plaintiff amounted to $6 more than the defendant received for his two weeks of temporary work. The notes being given for an amount which the plaintiff was not entitled to receive under the statute for a temporary position, the plaintiff was not entitled to recover thereon, and the judgment of the court below should be reversed. This disposition makes it unnecessary to discuss the other questions raised by the appellant on the argument.

The Judgment of the Justice's Court is reversed, with costs. Ordered accordingly.

(55 Misc. Rep. 55.)

PEOPLE v. SOMMER.

(Court of General Sessions, New York County. June, 1907.)

1. TRADE-MARKS AND TRADE-NAMES-INFRINGEMENT-CRIMINAL PROSECUTIONS. Laws 1896, p. 996, c. 933, § 1, provides that any person engaged in bottling or selling soda, mineral, or aërated waters, etc., in bottles, siphons, etc., with his name or other mark stamped thereon, may file with the county clerk a description of the name or mark, and provides for a certain publication of such description. Section 2 (page 997) declares it to be unlawful for any person to fill with soda, etc., waters, any bottle, siphon, etc., so marked or distinguished, or to give or traffic in the same, without the written consent of, or unless the same shall have been purchased from, the person whose name or mark shall be on the bottle, siphon, etc. Section 3 (page 998) provides that the use by any person other than the one whose name or mark shall be on such bottle, siphon, etc., without such written consent or purchase shall be presumptive evidence of such unlawful use, and that the possession by any junk or second-hand dealer of any such bottles, siphons, etc., shall be presumptive evidence of such unlawful use. Held, that the mere possession by defendant, whose business it was to fill siphons with aërated water for dealers, of a box of siphons found near the filling machine, but not shown to have been filled by him, was not a use of such siphons, and hence was insufficient to support a conviction, since, defendant not being a junk or second-hand dealer, mere possession of the bottles was not presumptive evidence of unlawful use. 2. STATUTES-CONSTRUCTION-STRICT CONSTRUCTION.

Statutes passed in the exercise of the police power of the state restricting and regulating property rights or the pursuits of lawful occupations and callings should be construed strictly.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Statutes, § 320.]

Joseph Sommer was convicted of a violation of Laws 1896, p. 996, c. 933, to protect the owners of bottles, siphons, etc., and he appeals. Reversed.

Alexander A. Mayper, Deputy Asst. Dist. Atty., for respondent. Aaron A. Feinberg, for appellant.

ROSALSKY, J. This is an appeal from a judgment of a city magistrate, convicting the defendant of a violation of section 2 of chapter 933, p. 997, of the Laws of 1896, in "that the defendant did on the 6th day of December, 1906, unlawfully fill, use, buy, sell, give, take, or otherwise dispose of and traffic in said six siphons at the city and county of New York, in the county and state of New York, which

and each of which said six siphons were and was so marked and distinguished with and by the name, marks, and devices of the said corporation, to wit, 'Carl H. Schultz,' of which a description had been so filed and published as aforesaid, and upon which each of said siphons there was therein and thereon the said name, marks, and devices of said corporation, contrary to and in violation of law." To sustain the charge. against the defendant, one John Keidel, employed by the Bottlers' Exchange, testified that on the 6th day of December, 1906, he entered the premises No. 234 Henry street, borough of Manhattan, county of New York, and, in the absence of the defendant, "found a box near the filling machine containing six Schultz's syphons and three Light's," and also that he was not present when the bottles were filled with seltzer. The defense established that the defendant was engaged in the business of filling siphons with aërated water for other dealers, and not for himself. The siphons which were to be filled with aërated water were brought to the defendant's place of business by dealers engaged in the business of selling and trafficking in the water, and at times the boxes contained siphons filled with aërated water.

Section 3 of this statute provides:

"That the use by any person other than the person or persons, corporation or corporations, whose device, name or mark shall be or shall have been upon the same without such written consent or purchase as aforesaid, of any such marked or distinguished bottle, box, siphon, tin or keg, a description of the name, mark or device as herein provided, for the sale therein of soda waters * shall, and is hereby declared, to be presumptive evidence of the said unlawful use, purchase and traffic in of such bottles, boxes, siphons, tins or kegs."

*

Another section of this subdivision declares:

"Or the having by any junk dealer or dealers in second-hand articles, possession of any such bottles, boxes, siphons * * * shall, and is hereby declared, to be presumptive evidence of said unlawful use, purchase and traffic in of such bottles, boxes, siphons, tins or kegs."

It will therefore be observed that, with reference to a junk dealer or dealers in second-hand articles, the possession of a bottle or siphon is to be deemed presumptive evidence of said unlawful use, whereas, as to any other person, the use of a bottle is to be deemed presumptive evidence of the unlawful use, purchase, and traffic in such bottles, siphons, etc.

Although the magistrate's return shows that the defendant did have in his possession "six siphons filled with some beverage," it is not contended that the defendant is guilty of the charge of having in his possession filled siphons, and properly so, because possession (by the defendant) of filled siphons, under the act, is no crime, unless by a junk dealer or a dealer in second-hand articles, and it is not claimed that the defendant is a junk dealer or a dealer in second-hand articles. Therefore the question to be determined is whether the defendant did fill, use, buy, sell, give, take, or otherwise dispose of, or traffic in, said six siphons so marked with the name and device of the corporation. "Carl H. Schultz," in violation of law. It nowhere appears from the record that the defendant did any one of the things enumerated above. The term "use" is defined in the Standard Dictionary as follows: