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Code of Criminal Procedure, and that it was for the defendant to show that he was not within the exception. Section 143 provides that:

"If when the crime is committed a defendant be without the state, the indictment may be found within the term herein limited after his coming within the state; and no time during which the defendant is not an inhabitant of, or usually resident within, this state or usually in personal attendauce upon business or employment within the state, is part of the limitation."

It seems to me a new theory of criminal law that the defendant is obliged to show that he has not been a fugitive from justice during the time that has elapsed between the commission of the alleged crime and the finding of the indictment, for the language of the statute clearly indicates that it is not intended to cover any merely incidental absence from the state. · The indictment in this case shows the defendant to have been "late of the borough of Manhattan of the city of New York, in the county of New York," and that the alleged crime was committed within such borough. The evidence shows the defendant to have been born in the city of New York, and, as he testifies, “I have lived here, off and on, all my life," and there is not a suggestion that he ever lived outside of the state; and he says that he is still the manager of the store on Broadway and Wall street where the alleged crime was committed. It thus appears that the defendant was a resident or inhabitant of the state at tiie time of the alleged crime; and that he was then present as manager of the business. The rule is well established that, under such circumstances, the presumption arises that he has continued to be a resident or inhabitant of the state. The status of the defendant as a resident of the city of New York, and active manager of the business where the crime is alleged to have been committed, being fixed, the law presumes a continuance of the condition until it is shown to have changed. Nixon v. Palmer, 10 Barb. 175; Mitchell v. United States, 21 Wall. (U. S.) 350, 353, 22 L. Ed. 584; Harris v. Harris, 83 App. Div. 123, 128, 82 N. Y. Supp. 568. This presumption that the defendant has not been a fugitive from justice is not overcome by the presumption that the grand jury, as public officers or servants, have done their duty; for while this, like the presumption of innocence, is a legal presumption, it does not supply proof of a substantive fact. Best in his treatise on Evidence, $ 300, says:

"The true principle intended to be asserted by the rule seems to be that there is a general disposition in courts of justice to uphold judicial and other acts rather than to render them imperative; and with this view, where there is general evidence of facts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking, essential to the validity of those acts, and by which they were probably accompanied in most instances, although in others the assumption may rest on grounds of public policy."

Nowhere is the presumption held to be a substitute for proof of an independent and material fact. Sabariego v. Maverick, 124 U. S. 261, 284, 285, 8 Sup. Ct. 461, 31 L. Ed. 430; United States v. Ross, 92 U. S. 281, 284, 23 L. Ed. 707. If it could, therefore, be said as a mere matter of pleading that the people were not bound to allege in the indictment that the defendant had been without the state within the

and 140 New York State Reporter meaning of the provisions of section 143, when the proof was in and it was shown that the defendant was a resident and inhabitant of the state, actively engaged in managing the business at the point where the crime is alleged to have been committed, the motion to dismiss on the ground that the facts proved did not constitute a crime should have been granted, for it was conclusively shown that the defendant was not within the exception. He had been within the jurisdiction of the state at all times.

I think the judgment of conviction should be reversed.

HOUGHTON, J., concurs.

(55 Misc. Rep. 93.)

NATIONAL PARK BANK V. SAITTA. (Supreme Court, Trial Term, New York County. June, 1907.) EVIDENCE-PAROL EVIDENCE-BILLS AND Notes-ACTION ON DRAFT.

A draft, drawn on defendant and accompanied by a bill of lading, was discounted by plaintiff, and the proceeds paid by check to the order of the drawer of the draft, which was accepted by defendant in Italy. Held, in an action on the draft, that defendant could show that it was agreed between plaintiff and himself that the bill of lading should be delivered to bim when he accepted the draft.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, 88 1800, 1925.)

Action by the National Park Bank against Phillips S. Saitta. Verdict for plaintiff. Motion for reargument of motion for new trial. Motion granted.

Louis F. Doyle, for plaintiff.
C. L. Thieel, for defendant,

BLANCHARD, J. This is a motion for a reargument by the defendant of his motion for a new trial, which was made and denied at the time of the trial. The defendant applied to the plaintiff, with a draft drawn on himself and accompanied by a bill of lading, and asked that the draft be discounted and the proceeds paid in the form of a check to the order of one Mauro, the drawer of the draft.

This was done. Subsequently the defendant went to Genoa, Italy, and there, as appears from the evidence, accepted the draft. Upon the trial the defendant offered evidence tending to show that there was an agreement between the plaintiff and himself that the bill of lading should be delivered to the defendant when he accepted the draft. This evidence was excluded, against the objection and exception of the defendant, upon the theory that it was inadmissible as parol evidence tending to vary a written instrument. Further consideration impels the court to the view that the evidence offered falls within the exception to the rule above mentioned, permitting the original parties to introduce parol evidence of a default in the condition precedent to the taking effect of the instrument, when such default consists in a failure of consideration. Higgins v. Ridgway, 153 N. Y. 130, 47 N. E. 32; Daniel Neg. Inst. (5th Ed.) § 81a. Upon this principle the court is

of opinion, after mature reflection, that the evidence which the defendant sought to adduce as aforesaid should have been admitted.

The motion for a reargument is therefore granted, and the motion for a new trial is granted upon the grounds already indicated.

Motion granted.

(121 App. Div. 528.)

CLOSE v. FARMERS' LOAN & TRUST CO, et al.

(Supreme Court, Appellate Division, Second Department. October 18, 1907.) WILLS—INTEREST DEVISED-ACCOUNTING.

A will giving a share of testator's estate to his daughter, to be invested by his executors for her benefit, the interest arising therefrom to be paid to her semiannually, and providing that on her death without issue the proceeds of the share should be divided among her brothers and sisters, created a trust, vesting the legal title in the executors as trustees; and hence on her death the legal title was in the trustees, with duty to account to her children, and not in her administrator or executor, requiring the trustees to account to him.

Appeal from Judgment on Report of Referee.

Suit for accounting by Eloise A. Close against the Farmers' Loan & Trust Company, as William F. Nisbet's executor, and others. From a judgment for defendants, plaintiff appeals. Reversed, and new trial granted.

The suit is for an accounting against the sureties for Henry C. Seward as substituted trustee under the sixth clause of the will of Anthony J. Allaire, deceased. The surviving executor and trustee appointed by the will, for whom the said trustee was substituted by the Supreme Court, turned over to the said trustee the sum of $12,626.64, the principal of the alleged trust fund. The said trustee afterwards died, and only the sum of about $200 of the said trust fund was realized out of his estate by the plaintiff and her brother, the defendant Wills A. Seward, who was made a defendant because he would not unite with her as a plaintiff. They are the only children and next of kin of Maria Ema Seward, mentioned in the said sixth clause of the said will of Anthony J. Allaire, her father, and now deceased, intestate.

The said will leaves two-thirds of the estate of the testator to his three sons and three daughters, viz., one sixth part thereof to each son absolutely, and then one sixth part to each daughter by the fourth, fifth and sixth clauses thereof, each clause being in the same words, that for the said Maria Ema Seward (the sixth) being as follows:

"To my daughter Maria Ema Seward I also give one other equal sixth part of said remaining two-thirds. The same also to be invested by my executors for her benefit in such securities as they may elect and the interest arising therefrom to be paid to her semiannually, and in the event of the said Maria Ema dying without issue then the proceeds of said share to be divided among her brothers and sisters share and share alike.”

One of the said defendant sureties died before judgment, and the other since. The executor of the latter has been substituted and is respondent here.

Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MILLER, and GAYNOR, JJ.

Theodore H. Silkman (H. W. Aiden, on the brief), for appellant. Hamilton Odell, for respondent.

GAYNOR, J. · It may be that more learning was resorted to below, and in argument at our bar, than is applicable to the case. If a trust

and 140 New York State Reporter was created by the sixth clause of the will, then upon the death of the life beneficiary, Maria Ema Seward, the trustee was under a duty to account to her children, viz., this plaintiff and her brother, the defendant Seward. If there was no trust, and instead the said mother was the absolute owner of the said fund when she died, then the duty of the trustee to account is to the executor or administrator of the said mother, and this suit was properly dismissed.

By the said clause the testator gave one-sixth of two-thirds of his estate to his said daughter Maria Ema, “the same to be invested by my executors for her benefit in such securities as they may elect, and the interest arising therefrom_to be paid to her semiannually, and in the event of the said Maria Ema dying without issue, then the proceeds of said share to be divided among her brothers and sisters, share and share alike.” Here is an express trust to receive and invest the fund, and pay the income to the said daughter of the testator for life. This vested the legal title in the trustees. Morse v. Morse, 85 N. Y. 53; Ward v. Ward, 105 N. Y. 68, 11 N. E. 373. They could not deal with the fund as directed except by having title and possession thereof. The trust cannot therefore be whittled down to a mere power in trust, to which title or possession is not necessary.

Now it may be true as was held below that a bequest to one, but if he die without children (as is the provision here), then over (say to his brothers and sisters, as is the case here), becomes an absolute one to him if he die leaving children, and that in such case the children would not take through the will, but as next of kin, in case of the intestacy of their parent. But that case, simpliciter, is not here. On the contrary, there is a trust here, from which it follows that at the death of the life beneficiary the legal title was in the trustees, with duty to account to the plaintiff and her brother, and turn the property over to them, instead of it belonging to the administrator or executor of the life beneficiary, as it would if the legal title were in her, and which would make an obligation to account to such administrator or executor, instead of to the plaintiff and her brother.

The judgment should be reversed.

Judgment reversed, and new trial granted; costs to abide the event. All concur.

(121 App. Div. 593.)

PEOPLE ex rel. EGGERS v. BINGHAM, Police Com’r. (Supreme Court, Appellate Division, Second Department. October 23, 1907.)

1. MUNICIPAL CORPORATIONS-POLICE DEPARTMENT--SUSPENSION OF POLICE

MEN-PROCEEDINGS-EVIDENCE.

On the hearing of charges against a police officer for failing to proceed against a disorderly house, where his defense was that he had been ordered by the police commissioner to report such matters to his secretary and take orders from him, and that he had done so in this case and had been ordered not to proceed against the house, it was error to exclude evidence that the officer had repeatedly reported to the commissioner's secretary in the same class of cases and received orders from him which he had obeyed.

2. EVIDENCE-ADMISSIONS-PART OF CONVERSATION-EXPLANATION.

On the hearing of charges against a police officer for failing to proceed against a disorderly house, where a policeman testified as to conversations he had had with accused when the latter directed no further proceedings to be taken against the premises, it was error to refuse to allow him to state on cross-examination that accused had told him in the same conversations that he had orders from his superior not to take action.

Miller, J., dissenting. Certiorari by the people, on the relation of William J. Eggers, to review an order of Theodore A. Bingham as police commissioner, etc. Order reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

Jacob Rouss (Louis J. Grant, on the brief), for relator.
Edward H. Wilson (James D. Bell, on the brief), for respondent.

RICH, J. This is a review by certiorari of the proceedings of the police commissioner of the city of New York, and of his order finding the relator guilty of conduct unbecoming an officer and willful neglect of duty and dismissing him from the service. The relator was a sergeant and acting captain in charge of the “vice squad,” so called, and concededly directed two officers under his command to ascertain, if possible, whether the law was being violated at No. 158 West Fifty-Fourth street by the keeping thereon of a disorderly house. These officers testified that upon receiving such directions they visited the premises and reported to him that they had procured evidence that the house was a disorderly house, and that one of them (Johnson) twice thereafter called his attention to the case and was directed to let the matter drop, or to let it rest—to take no further action against the house at that time. The relator concedes that Johnson reported direct to him, and informed him that the other officer had been in the house also, and that they had some evidence against the place; that Johnson twice later called his attention to the case; that he made no report to any superior police officer; and that no arrests or application for a warrant were made. There is no question on the uncontradicted evidence of these officers that the house was a disorderly house, and that the evidence procured by them called for a prosecution.

It was the duty of the relator to have caused such action to be taken, but he justifies his course upon the theory that Police Commissioner McAdoo, the predecessor of the respondent, who approved the findings and made the order complained of, had given him general directions to report in cases of this character to his secretary, one Howell, and take orders from him as to the action to be followed in such cases, in pursuance of which he did report to Howell that two of his men had made visits to the place and had secured some evidence, and was directed by Howell: "Well, don't do anything with that; don't act on this place just now, until you get stronger evidence”-in conformity with which he advised Johnson that Howell had directed that no action be taken on the case until he directed action. The relator's testimony that he was given such directions by the police commissioner was not controverted. Even if he refrained from the performance of his duty in obedience to the request of Howell, this cannot, of course, excuse

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