bicycles, tricycles, velocipedes and motor vehicles, however propelled, or by passenger and other vehicles, drawn by horses or other animals, except that in portions of the city not built up, where the buildings are at least 100 feet apart, a speed of fifteen miles an hour may be maintained."

"Sec. 475. Penalties for Violations. Any person violating any provision or regulation hereof shall be deemed guilty of a misdemeanor, and upon conviction thereof by any magistrate either upon confession of the party or by competent testimony, may be fined for such offence any sum not less than $1 and not exceeding $10, and in default of payment of such fine may be committed to prison by such magistrate until the same be paid; but such imprisonment shall not exceed ten days."

It is claimed that these ordinances were passed in conformity to the authority given by the motor vehicle law (section 4, subd. 3, supra), and, as the ordinances were passed subsequent to the act under consideration, and fixed the same speed limitations for all vehicles, and provided penalties for violations thereof similar to and no greater than those fixed for violations of the speed limitation by any other vehicles than motor vehicles, that the said ordinances by virtue of the provisions of the act superseded the provisions of the same in the city of New York, no greater fine than $10 could be imposed for any offense, the trial of such offense must be a summary one before a city magistrate as for a violation of a city ordinance, the Court of Special Sessions had no jurisdiction, and therefore the relator was unlawfully deprived of his liberty and should be discharged.

Whatever this court might think of the inadequacy of the punishment provided by the ordinance for driving motor vehicles at an excessive speed in the city of New York, or however much it might regret that imprisonment for repeated offenses was abolished, if the board of aldermen had the power to pass the ordinances alluded to and had conformed to the provisions of the statute, the question of the adequacy or inadequacy of the penalties, or the wisdom of the omission of imprisonment for repeated offenses, would not be questions of judicial concern. They would be purely legislative, and the function of the courts would be confined to the interpretation and enforcement of such legislative commands. I am of the opinion, however, that upon this record the penalties provided by the motor vehicle law (chapter 538, p. 1311, Laws 1904), are in full force and effect, that the relator was properly held for trial at the Court of Special Sessions as for a misdemeanor, and that the order discharging him from custody was error and should be reversed.

The motor vehicle law was passed really in the interests of automobilists. The various rules, regulations, and ordinances in the many villages and cities of the state upon the various subjects of licenses, speed, and penalties were so numerous, conflicting, and confusing that the persons interested in the subject appealed to and succeeded in having passed by the Legislature a general act under which an automobilist in any part of the state would know exactly what his restrictions and his liabilities were, and the act expressly repealed all ordinances, rules, or regulations theretofore in effect. The act permitted local authorities to thereafter pass ordinances, rules, and regulations in regard to the speed of motor vehicles on the public highway under three express conditions: First, that such ordinances, rules, or regulations should fix the

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same speed limitations for all other vehicles; third, that such ordinances, rules, or regulations should fix the penalties for violation thereof similar to and no greater than those fixed by such local authorities for violations of the speed regulations for such other vehicles than motor vehicles.

It is true that the ordinance under consideration in the case at bar does fix the same speed limitation for all other vehicles as for motor vehicles, and it is true that said ordinance fixes the penalties for violation thereof by motor vehicles no greater than those fixed for other vehicles. But there is another condition in the statute, contained in the same paragraph of the same subdivision of the same section, between the first and the third conditions alluded to, supra, namely:

"And on further condition that such city or village shall also have placed conspicuously on each main public highway where the city or village line crosses the same and on every main highway where the rate of speed changes, signs of sufficient size to be easily readable by a person using the highway, bearing the words 'Slow down to miles' (the rate being inserted), and also an arrow pointing in the direction where the speed is to be reduced or changed."

There is no evidence in this case that this condition has been complied with, and as the operation of the ordinance, by the provisions of the act, is dependent upon the performance of each condition, the failure to perform the condition as to the posting of signs is as fatal to the enforcement of the ordinance as would have been the omission therefrom of either of the other conditions as to uniformity as to speed limitations to all vehicles, or as to penalties for the violation of speed limitations for all kinds of vehicles. The language of the condition is that "such city or village shall also have placed conspicuously," etc. There is no evidence that the city of New York has placed any such signs.

The exception or proviso or condition is contained in a distinct clause from that containing the provision for a punishment for violation of the act, and therefore, as stated by Mr. Wharton (Crim. Law, § 378):

*

"If provisos and exceptions are contained in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions or to negative the provisos contained, * for all these are matters of defense which the prosecutor need not anticipate, but which are more properly to come from the prisoner."

Therefore, the burden was upon the relator to establish the validity of the ordinance and that it had become effective as in conformity with the conditions prescribed by the Legislature. This he has failed to do. It follows therefore that, it having been made to appear to the committing magistrate that there was reason to believe that the relator was guilty of the offense charged under a valid law, he was properly held for trial at the Court of Special Sessions.

The order appealed from should be reversed, the writ of habeas corpus dismissed, and the relator remanded to custody. All concur.

PATTERSON, P. J. I concur in the reversal of the order appealed from, upon a somewhat amplified view of the ground stated in the opinion of Mr. Justice CLARKE. It seems to me that it was within the au

thority of the municipal Legislature to pass the ordinance of November, 1906, but that it did not become effective to supersede the provisions of the act of the Legislature of the state (chapter 538, p. 1311, Laws 1904) until all the provisions of the last-mentioned act were complied with, among which provisions is the one relating to the placing of signs upon the highways. I am of the opinion that this is a case of state legislation contingent in its character, and which empowers the city authorities to make rules and regulations relating to the speed of motor vehicles on public highways and penalties for transgression of such rules and regulations. The Legislature of the state had in view, according to my understanding of the subject, the time at which and the circumstances in which the ordinance of the corporation of the city of New York should become effective, and it was a question of expediency with the Legislature of the state which exercised its judgment in prescribing that the city ordinance should take effect when, among other things, the signs were placed in the streets and highways. To quote from the language of Ruggles, C. J., in Barto v. Himrod, 8 N. Y. 490, 59 Am. Dec. 506:

"When a law is made to take effect upon the happening of such an event, the Legislature in effect declares the law inexpedient if the event should not happen, but expedient if it should happen."

That is to say, in this case, the power given by the state Legislature to the board of aldermen to make an ordinance effective was dependent upon a compliance by the local authorities with every requirement of the act conferring such power.

(121 App. Div. 613.)

PEOPLE v. BLAKE.

(Supreme Court, Appellate Division, First Department. October 25, 1907.) CRIMINAL LAW-LIMITATIONS-APPEAL-QUESTIONS NOT RAISED AT TRIAL.

Under the general rule that questions of law in criminal cases can only be raised by exceptions, a convicted person was not entitled to a reversal on appeal because the prosecution was barred by limitations, where such ground of objection was not specifically urged at the trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2619.]

Lambert and Houghton, JJ., dissenting.

Appeal from Court of General Sessions, New York County.

John Blake was convicted of fraudulently exposing for sale and selling water that was not Poland Spring water as Poland Spring water in bottles bearing the Poland Water labels, and he appeals. Affirmed. Argued before PATTERSON, P. J., and MCLAUGHLIN, LAMBERT, LAUGHLIN, and HOUGHTON, JJ.

Francis I. Osborne, for appellant.

Robert C. Taylor, for respondent.

MCLAUGHLIN, J. The defendant was convicted of a misdemeanor, and he appeals from the judgment of conviction and orders denying motions to set aside the verdict, and for a new trial and in arrest of judgment.

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The indictment under which the conviction was obtained charged him with having violated sections 364, 438, and 438a of the Penal Code, in that on the 18th day of March, 1902, he knowingly and fraudulently exposed for sale and sold as Poland Spring water, in bottles bearing the Poland water labels and trade-marks, water which was not Poland Spring water. The judgment of conviction is attacked principally upon two grounds, which will be considered in the order named: (1) That the learned recorder erred at the trial in admitting, against defendant's objection, certain testimony; and (2) that the indictment was not found within two years after the alleged crime was committed.

First. At the trial the people called as a witness one Rosston, who, after stating that he was employed by the defendant from the middle of November, 1899, until March, 1901, during which period he sold mineral waters, was asked to state whether he sold to customers water from Poland water bottles, bearing Poland water labels, which was not Poland water. The question was objected to by defendant's counsel, and the objection sustained. After the people had rested, defendant was called as a witness in his own behalf, and, on direct examination, he testified that he did not have any clerk whom he directed to sell "any water than Poland water out of Poland water bottles." On cross-examination, referring to the testimony he had thus given, he stated:

"Mr. Osborne asked me did I ever instruct any clerk to sell Hygeia water as Poland water, and I answered, 'No.' That is correct."

He was then interrogated as to directions given to the witness Rosston, and denied that he had directed him to refill Poland water bottles with other water and sell it as Poland water, or that he knew that any such practice prevailed in the establishment of which he had charge. After the defendant had rested, Rosston was recalled and permitted, against defendant's objection, to contradict his statement, testifying that defendant had instructed him to refill Poland bottles with other water and to sell the same as Poland water, and that he knew of other instances in which he had given such instructions. I think this testimony was admissible. The defendant had denied giving Rosston or any of his employés instructions to refill the Poland water bottles with other water and sell the same as Poland water. It was admissible for the purpose of contradicting defendant's testimony. Blossom v. Barrett, 37 N. Y. 434, 97 Am. Dec. 747; People v. Schuyler, 106 N. Y. 298, 12 N. E. 783; People v. Barone, 161 N. Y. 451, 55 N. E. 1083; Squier v. Hanover Fire Ins. Co., 162 N. Y. 552, 57 N. E. 93, 76 Am. St. Rep. 349. It was not only admissible for this purpose, but I think it was admissible as bearing upon the defendant's intent, and rebutting any claim of mistake or accident as to the sale specified in the indictment. People v. Everhardt, 104 N. Y. 591, 11 N. E. 62; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193; People v. Doty, 175 N. Y. 164, 67 N. E. 303; People v. Dolan, 186 N. Y. 4, 78 N. E. 569.

This brings us to the consideration of the main question argued on the appeal, viz., that the indictment was not found within two years

after the commission of the crime for which defendant has been convicted. The Code of Criminal Procedure provides that an indictment for a misdemeanor must be found within two years after its commission (section 142), and that an indictment is found when duly presented by the grand jury in open court and there received and filed (section 144). The misdemeanor for which the defendant was indicted and convicted was committed on the 18th of March, 1902. The indictment was not filed until May 25, 1904-more than two years thereafter. The defendant's objection, therefore, to the validity of the judgment. of conviction is good if he is in a position to raise the question. At the opening of the argument of the appeal before us, the learned district attorney asked permission to file with, and have considered as, a part of the record on the appeal, certified copies of certain papers which he claimed showed that the prosecution of the defendant for the crime of which he had been convicted was originally instituted in the Court of Special Sessions, and that the defendant moved to have the same transferred to the Court of General Sessions, and included in his motion papers was a stipulation signed by himself and his counsel that, if such motion were granted, he would not plead in that court or raise the question that the indictment was not found within the time prescribed in section 142 of the Code of Criminal Procedure; that the motion was granted upon that condition, the stipulation being incorporated in and made a part of the order; that the statute of limitations had not then run, and did not until nine days thereafter. This court, however, refused to receive such papers or to consider them upon the appeal, deeming it the better practice in a criminal case that the questions sought to be reviewed should be determined solely from the record. Therefore, in passing upon the question of whether the judgment ought to be reversed because the statute of limitations had run at the time the indictment was found, I do so simply from what appears in the record alone. I am of the opinion that the defendant is not in a position to raise that question. At the opening of the trial the defendant's counsel moved to dismiss the indictment upon the ground that it did not state facts sufficient to constitute a cause of action, at the same time saying: "I do not wish to discuss it. I am limited by the agreement which I wish to hand up to your honor, and I do not wish to go outside of the agreement in making my motion," to which the court responded, "I think you are precluded by the stipulation;" and the counsel replied, "You think I am?" to which the court said, "Yes." No exception was taken to this ruling; the defendant's counsel apparently acquiescing therein. What the agreement was to which counsel referred the record fails to disclose. Thereupon the trial proceeded without a suggestion that the statute of limitations had run, or that the indictment had not been found in time. Nor was that question raised or even suggested at the close of the people's case. After the people had rested, defendant's counsel moved to dismiss the indictment upon the ground that the facts given in evidence did not constitute a crime; that there was no evidence that the defendant had committed an offense; that the people's testimony tended to show that on the 18th of March certain men went into the store and ordered Poland water; "got some water, took it to

106 N.Y.S.-21