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and 140 New York State Reporter with the choice of delegates so made by the district committeemen. The court is given power under the primary election law to enforce any right secured to an elector by that law and to enforce the performance of any duty imposed by that law upon a political committee. As above indicated, the primary election law imposes no duty upon a political organization to print ballots for a primary, and imposes no duty whatever in regard to the inspection or distribution of any ballots; and there is no provision in the primary law which confers any right upon an elector to inspect ballots prepared by another elector, even though that elector be a district committeeman. It is obvious that the court is without power to grant the relief asked for. It was never intended that the courts should be called upon to interfere with the details of party management.

The application for a peremptory writ of mandamus is denied.


(Supreme Court, Appellate Division, Fourth Department. November 13, 1907.)


Though under the statute it is a crime for a public officer either to ask for a bribe or to agree to receive a bribe to influence his official action, the people, instead of prosecuting him for either, may elect to prosecute him for asking for, agreeing to receive, and receiving a bribe as one offense.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Bribery, $$ 1-3.] 2. CRIMINAL LAW-LIMITATION OF PROSECUTIONS-BRIBERY.

The asking by an officer for a bribe, the agreement to receive a bribe, his action in pursuance to the agreement, and the receiving by him of the bribe, are one transaction ; and a criminal prosecution is not barred, though the only act done within five years previous to the finding of the indictment was the receiving of the bribe.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law,


On a trial for bribery, evidence held to support a conviction.

Appeal from Trial Term, Wyoming County.

Byron D. Gibson and another were convicted of bribery, and they appeal, and bring up for review the order overruling a demurrer to the indictment, the exceptions taken to the admission and rejection of evidence, to the charge and refusal to charge, and to the refusal to grant a new trial on the ground that the verdict was contrary to the weight of the evidence. Affirmed.

The defendants were indicted on the 27th day of March, 1906, for having received a bribe on or about the 25th day of June, 1901, which was intended to influence and did influence their action in the board of supervisors of Erie county, of which they were members. The contention on the part of the de fendants is that such crime, if any, committed by them, was committed more than five years before the indictment was found, and therefore was outlawed or barred by the statute of limitatious; also that the exceptions taken present reversible error; and, further, that the verdict was contrary to and against the weight of the evidence.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Willard H. Ticknor, for appellants.
Frank A. Abbott, Dist. Atty., for the People.

McLENNAN, P. J. Upon the merits and after a careful examination of the entire evidence we think the jury were justified in finding that the defendants were guilty of having asked for, agreed to receive, and in fact did receive, a bribe which influenced their action as members of the board of supervisors of Erie county. We are also constrained to hold that no ruling of the learned trial court as to the admission or rejection of evidence, or as to the charge or refusal to charge as requested, was error, or at least such as should disturb the finding of the jury upon the main issues involved. Upon the merits we conclude that the defendants had a fair trial and that their rights were reasonably protected by the rulings of the learned trial judge.

This leads us only to consider whether the demurrer to the indictment should not have been sustained because, as it is alleged, it appears upon the face of the indictment that the asking for a bribe, the agreement to receive a bribe, and the action of the defendants thereunder and in pursuance of such asking and agreement, having taken place more than five years before the indictment was found, the crime was outlawed, notwithstanding the sum paid in consummation of such crime was paid within the five years previous to the finding of the indictment. Under the statute it is undoubtedly a crime for an official, such as were the defendants, to ask for a bribe. It is equally a crime for such officials to agree to receive a bribe to influence their official action. In the case at bar both of these acts, the asking for and the agreement to receive, and the action of the defendants pursuant to such agreement, occurred more than five years previous to the indictment, and, if that were all, clearly such crime was barred by the five-year statute of limitations. But it is alleged in the indictment that such bribe was actually received within the five years previous to the indictment, and so it is urged that the date of receiving the bribe was the date when the crime was consummated, and so the crime was not barred by the statute. We think this is the logical and sensible conclusion to be reached, that all the circumstances enumerated, to wit, the asking for the bribe, the agreement to receive the bribe, the voting for the proposition desired, and the receiving of the bribe, all constituted one single transaction, and that the receiving was the consummation of the wicked scheme inaugurated by the asking, and that, the act which constituted the consummation of the act being within the five years, it is entirely immaterial that the initiative of such crime originated months, or even years, before.

It is undoubtedly true, as suggested by the able counsel for the appellants, that they could have been indicted for asking for a bribe which would influence their action as supervisors, and equally so if they had entered into an agreement by which they were to receive any consideration for their action as supervisors; but we think the people had the right to put those acts together, and declare that the asking, the agree

and 140 New York State Reporter ment, and the receiving constituted one crime, to wit, the crime of bribery, and that the receiving, which was the consummating act, having been performed within the five years, the whole wicked transaction was saved from the defense of the statute of limitations. In the case at bar there is hardly a pretense made that the defendants are not guilty upon the merits of the crime with which they are charged. Indeed, the agreement, dated "Buffalo, March 25, 1901," signed by Conover, the contractor, the authenticity of which is not disputed, would seem to put that question beyond dispute. In that agreement it is said:

"It is understood between R. J. Conover, Chas. N. Brayton, Wm. B. Jackson, and Byron D. Gibson that sixty-seren cents per body from the North St. Cemetery shall be divided equally between them; payment to be made as fast as warrants are paid."

A balder case of bribery or corrupt agreement between officials could hardly be imagined; and, further, the documentary evidence clearly shows that such officials received the percentage provided for by such agreement. It is hardly seriously contended that any ruling made by the court, even if technically erroneous, could have influenced the jury in reaching the conclusion which they did upon that proposition. In other words, the evidence, practically uncontradicted, leads most unerringly to the conclusion that the defendants, as members of the board of supervisors of Erie county, received or were promised certain moneys in order to support and put through a certain resolution pending before such board, which would inure to their benefit and under which, if passed, they were to be the chief beneficiaries. The vouchers, the letters, practically every item of evidence which is of record, and which is uncontradicted, establishes that fact beyond a cavil of doubt.

We conclude that the asking for a bribe by the defendants, the agreement on their part to receive a bribe, and the receiving of such bribe, constituted one transaction, and that, the overt act, to wit, the receiving of the bribe, having occurred within five years previous to the finding of the indictment, the statute of limitations did not prevent an indictment and punishment for the offense. It would seem that we might as well repeal the statute which seeks to prevent the crime of bribery as to hold that an agreement to pay an official which shall influence his vote may outlaw and cease to be an offense in case the date of payment is sufficiently long postponed. The payment is the overt act which is the consummation of the crime, and we think that the statute only commences to run from the date of such act. We conclude that the defendants' demurrer to the indictment was properly overruled, that no error requiring a reversal of the judgment is presented by any rulings of the court, and that the verdict of the jury finding the defendants guilty of the crime charged in the indictment was amply supported by the evidence; and as a result we conclude that the judgment and order appealed from should be affirmed.

Judgment of conviction, and order overruling dcmurrer, affirmed. All concur.

PERLEY V. SCHUBERT. (Supreme Court, Appellate Division, First Department. November 15, 1907.) 1. DAMAGES-LIQUIDATED DAMAGES OR PENALTY.

In determining whether a stipulation in a contract for the payment of a specified sum in case of a breach provides for liquidated damages or for a penalty, the intention of the parties, ascertained from the language of the contract and the surrounding circumstances, must be considered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, 88 154–


A contract binding a theatrical manager to furnish on May 1st of each year routes, covering theaters under his control, for the production by another for 20 consecutive weeks from September 15th of such plays as he might select, and requiring the latter to notify the former on or before July 1st of his acceptance of the routes and to give notice prior to September 1st of the number of attractions intended to be produced, so that the time set apart for him might otherwise be disposed of did not make time of the essence, and a failure to submit the routes on May 1st was not a breach.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, $8


Where a contract binding a theatrical manager to furnish to another routes covering theaters under his control did not specify the place of delivery of the routes, the place of delivery was at the office of the manager.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, 88 929–935.] Appeal from Trial Term.

Action by Frank L. Perley against Leo Schubert. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial ordered.


Benjamin N. Cardozo (Wm. Klein, on the brief), for appellant.
Josiah Canter (Franklin Bien, on the brief), for respondent.

CLARKE, J. This is an action to recover $25,000 as liquidated damages for breach of contract. On July 28, 1905, the plaintiff and the defendant, theatrical managers, entered into an agreement in writing which by its terms was to commence on September 1, 1905, and continue for 5 years, with provisions for renewal for an additional 5 years. The contract is voluminous, covering some 16 pages of the printed record and containing 17 separately numbered paragraphs. Its many stipulations or covenants are of varying degrees of importance. It provides that the defendant should submit to and set aside for the plaintiff, prior to the 1st of May in each year during said term, for the production of whatever attractions the plaintiff might desire, six good routes covering all theaters the bookings of which were under the control of the defendant or of his brother, Jacob J. Schubert, or of any corporation or partnership in which they or either of them were interested; that the defendant should deliver to the plaintiff, within one

106 N.Y.S.-38

and 140 New York State Reporter week after receiving written notice of the name of each play and of the plaintiff's intent to present the same, contracts in due form granting and securing to the plaintiff such time or engagements for the presentation of his attractions in the Lyric Theater and the Casino in the city of New York, and in all the theaters referred to in the contract, each route to be at least for 20 consecutive weeks, three of them to begin not later than September 15th in each year, and three about October 15th, in each year, and to be upon sharing terms in accordance with an annexed schedule; that if, after October 15th, the plaintiff desired and requested a route beginning later than that date, the defendant should book it wherever time in the theaters desired by the plaintiff was not actually contracted for; that after the submission of the routes on or prior to May 1st the plaintiff should notify the defendant in writing, on or prior to July 1st, either of his acceptance or of his declination of all of any part of each or all of said routes, and should give notice in writing prior to September 1st what time he would not require; that, should the plaintiff not have six attractions, he would notify the defendant on or before September 1st in each year of the number of attractions which he desired to produce, so that the time set aside for him might be disposed of by the defendant; that the terms on which the attractions should play at the different theaters should be in accordance with a schedule annexed thereto; that the plaintiff should have the right to purchase an interest in all future musical and dramatic plays to be produced by the defendant during the term of the agreement, up to a one-half interest, upon giving prescribed notice and upon prescribed terms of payment; that, should the defendant be called upon by any one to make a production of any musical production, opera, or play, without risk to the defendant, he should refer such person to the plaintiff and enter into an agreement with the plaintiff for a division of the profits; that the plaintiff should have time for his productions in each season, or in each year, at the Casino and Lyric Theaters in the city of New York, and such other theaters as the defendant might control in the city of New York, in addition to those on the road more specifically described; that the defendant should be constituted the booking agent of the plaintiff for the purpose of booking his attractions, and that the plaintiff should not book or attempt to book any attraction, except through the defendant; that, should the defendant dispose of the theaters owned or controlled by him, he would do so only subject to the terms of the agreement; that no production should be made by the plaintiff in addition to the six routes set apart for him except at theaters owned or controlled by the defendant; that the form of the contract to be used in booking should be the forn thereto annexed; that if, through introduction, or by the influence of the plaintiff, any theater should become affiliated with the Schubert enterprises, or should the booking of any theater be procured through the efforts or introduction made by the plaintiff, the plaintiff should have one-half of all income accruing from affiliation of said theater and the booking of time therein for so long a time as the arrangement made with the said theater should continue; that the plaintiff should have the right, if he so desired, to purchase from the defendant any proportion, not to exceed one-half, of the de

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