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defendant Frances A. Koos not having qualified. Therefore the defendants Koos, as trustees under the will of Frances M. Shepard, and the defendant Gustave A. Koos, as the executor thereof, claim an undivided one-half interest in the premises as tenants in common with the heirs of Lorena Allen, by virtue of the will of John Shepard, deceased.
The plaintiff contends that he is entitled to three undivided fourths of the premises, having acquired the fourth interest of his brother, George W. Shepard, and of his sister, Lorena Allen, and being entitled to a fourth interest as one of the heirs at law of his father. The defendants Ellen M. Shepard and Donald McLean, who are the grantees of the heirs of James G. Shepard, who died intestate, claim to be the owners of the remaining fourth part of the premises, the said Ellen claiming five twenty-fourths and the said McLean one twenty-fourth thereof, by virtue of the conveyances to them by some of the heirs of James G. Shepard. I am of the opinion, on this state of facts, that, under the trust deed executed by John Shepard to McFarlin, each of his four children took a contingent remainder in the property described in that deed, subject to be defeated in the case of death before their father, and that, upon the death of John Shepard, the remainder became a vested remainder. See Moore v. Littel, 41 N. Y. 66; Dodge v. Stevens, 105 N. Y. 585, 12 N. E. Rep. 759; Hennessy v. Patterson, 85 N. Y. 92; Kelso v. Lorillard, Id. 177--184; Surdam v. Cornell, 116 V. Y. 305, 22 N. E. Rep. 450; Ham v. Van Orden, 84 N. Y. 257. The interest vested in the children of John Shepard by the trust deed was alienable under the cases above cited, and it follows, therefore, that the conveyances to George W. Shepard of his un divided one-fourth, and the deed from Frank H. Allen, to the plaintiff, of the other undivided one-fourth conveyed to him by Lorena Allen, added to the plaintiff's own interest, made him the owner in fee simple of three-fourths of the premises mentioned in the complaint. It also follows that the defendants Ellen M. Shepard and Donald McLean together own the one-fourth interest which James G. Shepard took under the trust deed, five-sixths thereof being vested in Ellen M. Shepard, and one-sixth in the said McLean. It also follows that no portion of the premises in question passed under the will of John Shepard as a part of his residnary estate to his widow and his daughter Lorena Allen. The widow was entitled, under the trust deed, to the rents and profits during her life, and Lorena Allen succeeded as one of the heirs at law to one-fourth interest in fee, which interest, as we have seen, has become vested in the plaintiff. The plaintiff is entitled to the usual judgment in partition, with costs. The defendants, Ellen M. Shepard and Donald McLean are also entitled to their costs. These costs should be paid out of the estate. As the defendant Frank H. Allen was brought into the controversy by reason of the attack made upon the deed to him, from Lorena Alen, by the defendant Walter S. Allen, and as no proof was given to maintain that attack, I am of the opinion that he is entitled to costs against the defendant Walter S. Allen personally. I think, too, that the costs of the defendants Koos should be paid out of the estate.
(70 Hun, 233.) PEOPLE ex rel. SANDERS V. GRANT, Mayor. (Supreme Court, General Term, First Department. June 30, 1893.) EXHIBITION OF CHILDREN-CONSENT OF MAYOR.
Pen. Code, § 292, "relative to the licensing of children in theatrical exhibitions," as amended by Laws 1892, c. 309, prohibits the exhibition of any child under the age of 16 years “either * 3. In singing; or dancing; or playing upon a musical instrument; or in a theatrical exhi. bition; or in any wandering occupation;* * *. But this section does not apply to the employment of any child as a singer or musician in a church, school or academy; or in teaching or learning the science or practice of music; or as a musician in any concert, or in a theatrical exhibition, with the written consent of the mayor of the city." Held, that the mayor cannot consent to a theatrical exhibition which includes singing or dancing by such child.
Appeal from special term, New York county.
Mandamus proceeding by the people of the state of New York, on the relation of Alice Sanders, to compel Hugh J. Grant, as mayor of the city of New York, to give his consent, under chapter 309 of the Laws of 1892, to the appearance of Zelda Sanders, relator's daughter, aged 11 years, in a certain theatrical entertainment in which such child is desired to sing and dance. From an order denying her application for a peremptory writ, on order to show cause, relator appeals. Affirmed.
This case was heard with the Stevens Case, 24 N. Y. Supp. 780, and five like cases, at special term, by Mr. Justice BEACH, and his determination was announced in a single opinion, which is as follows:
Prior to the act of 1892, and under section 292 of the Penal Code, the written consent of the mayor could be given to the employment of a child in certain ways mentioned. By the act of 1892, entitled "An act to amend section 292 of the Penal Code, relative to the licensing of children in theatrical exhibitions," the consent of the mayor was extended to include such exhibitions. The third subdivision of section 292 specifies certain of the prohibited acts in these words: “Third.-In singing or dancing, or playing upon a musical instrument, or in a theatrical exhibition, or in any wandering occupation." The question raised in these proceedings is whether or not the mayor can grant a consent for a “theatrical exhibition" which includes "singing" or "dancing' by the child. I am of the opinion that he cannot. The intent of the legislature is to be ascertained, and, when settled, followed by the court, in construing the enactment. But this intent is not to be gathered from the shifting uncertainties of outside opinion or circumstances, likely to be modified or wholly changed when subjected to proof and judicial examination, but rather from the signs and indications furnished by legislation upon the particular subject then under legislative consideration. Judicial construction is seldom assisted by that applied to other enactments, which is always influenced or controlled by particular verbiage. Such are the cases of Society V. Diers, 10 Abb. Pr. (N. S.) 216; Bell v. Mahn, 121 Pa. St. 225, 15 Atl. Rep. 523. There is no doubt that the court can disregard the exact and literal wording of a legislative act, if, upon a survey of the whole act, and the purpose to be accomplished or the wrong to be remedied, it is plain that such
exact or literal rendering of the wording would not carry out the intent of the legislature. Bell v. Mayor, 105 N. Y. 139, 144, 11 N. E. Rep. 495. This principle is not directly applicable to the question at bar, because exact and literal wording is not opposed to plain intent. The point involved here relates to the inclusive power of the term “theatrical exhibition," relative to "singing" or "dancing.” These terms are used in the act under review, and the court, to ascertain the legislative intent, is remitted to the use by the legislature of those terms, and the legal effect of that use. The original acı, and thic act as amended, contained specified prohibited acts. These under the present section, and included in paragraph three, are plainly five in number: First, "singing;” second, "dancing;" third, “playing upon a musical instrument;" fourth, "in a theatrical exhibition;" fifth, “in any wandering occupation." The answer to parts of the argument urged by learned counsel for the defendant and relators is the obvious deduction from the particular specifications that each has a distinct and separate significance, and therefore no one is inclusive of any other. The final clause of the amendment, “but no such consent shall be deemed to authorize any violation of the first, second, fourth or fifth subdivisions of this section," is of little aid to judicial construction. The third subdivision is not named, but the reason for its omission is that a violation of its parts was authorized when consent of the mayor was obtained. This applies only to the term “theatrical exhibition," leaviny singing, dancing, playing upon a musical instrument, and wandering occupation in the same status as the other subdivisions. The substitution of the word "dancing" for "dancer" seems to indicate an intention to enlarge the scope of a prohibition beyond a signification applicable only to a professional. It is also apparent that the third subdivision was properly omitted, because it includes what is subject to a consent by the mayor, to wit, playing on a musical instrument at a concert, and theatrical exhibitions. The court is of opinion that the tenor of the act, its title, and specific designations, by explicit words, will not permit the inclusion of singing and dancing by the words “theatrical exhibition." There are under the latter term many acts not harmful or inappropriate, within the limit of children's efforts, and such may be permitted. Those of singing and of dancing are excluded, in the wisdom of supreme legislative authority, which cannot and should not be overruled by the courts, especially when exercised with the humanitarian object of protecting those who, from youth and consequent inexperience, are unable to guard and protect themselves. The motions for a mandamus are denied, the writs of habeas corpus and certiorari discharged, and the prisoner remanded.
Argued before VAN BRUNT, P. J., and O'BRIEN and LAW. RENCE, JJ.
Myer J. Stein and Wales F. Severance, for appellant.
LAWRENCE, J. It is too late to question the constitutionality of section 292 of the Penal Code, and of chapter 309 of the Laws of 1892, amending the same. The opinion of Mr. Justice BEACH at the special term fully answers all the questions sought to be raised upon this appeal, and, concurring, as I do, in the views expressed by him, I am of the opinion that the order denying the motion of the relator for a writ of peremptory mandamus should be affirmed.
VAN BRUNT, P. J. In concurring with the opinion of Mr. Justice LAWRENCE herein, I think it is proper that a word or two should be said in respect to some points which have been made upon this appeal, and which do not appear to have been discussed in the opinion of the court below. Section 292 of the Penal Code reads as follows:
"Sec. 292. A person, who employs or causes to be employed, or who exhibits, uses, or has in custody for the purpose of exhibiting or employing, a female child apparently or actually under the age of fourteen years, or a male child apparently or actually under the age of sixteen years, or who having the care, custody, or control of such a child as parent, relative guardian, employer or otherwise, sells, lets out, gives away, or in any way procures or consents to the employment or exhibition of such a child, either (1) as a rope or wire walker, dancer, gymnast, contortionist, rider, or acrobat; or (2) in begging or receiving alms, or in any mendicant occupation; or (3) in peddling, singing or playing upon a musical instrument or in a theatrical exhibition, or in any wandering occupation; or (4) in any indecent or immoral exhibition or practice; or (5) in any practice or exhibition dangerous or injurious to the life, limb, health or morals of the child; is guilty of a misdemeanor. But this section does not apply to the employment of any child as a singer or musician in a church, school, or academy, or in teaching or learning the science or practice of music, or as a musician in any concert with the written consent of the mayor of the city, or the president of the board of trustees of the village, where such concert takes place.
In 1892 this section of the Penal Code was amended so as to read as follows: “An act to amend section two hundred and ninety-two of the Penal Code, rel.
ative to the licensing of children in theatrical exhibitions. “Approved by the governor April 15, 1892. Passed, three-fifths being present.
“The people of the state of New York, represented in senate and assembly, do enact as follows:
"Section 1. Section two hundred and ninety-two of the Penal Code is here by amended so as to read as follows:
“ ‘Sec. 292. A person who employs or causes to be employed, or who exhibits, uses, or bas in custody, or trains for the purpose of the exhibition, use or employment of any child actually or apparently under the age of sixteen years; or who having the care, custody or control of such a child as parent. relative, guardian, employer, or otherwise, sells, lets out, gives away, so trains, or in any way procures or consents to the employment, or to such training, or use, or exhibition of such child; or who neglects or refuses to restrain such child from such training, or from engaging or acting, either (1) as a rope or wire walker, gympast, wrestler, contortionist, rider or acrobat; or upon any bicycle or similar mechanical vehicle or contrirance; or (2) in begging or receiving or soliciting alms in any manner or under any pretense
, or in any mendicant occupation; or in gathering or picking rags, of collect. ing cigar stumps, bones or refuse from marke's, or in peddling : or (3) in singing : or dancing; or playing upon a musical instrument; or in a theatrical exhibition ; or in any wandering occupation; or, (+) in any illegal, indecent or immoral exhibition or practice ; or in the exhibition of any such child when insane, idiotic, or when presenting the appearance of any deformity or unnatural physical formation or development; or (5) in any prac: tice or exhibition or place dangerous or injurious to the life, limb, health or morals of the child, is guilty of a misdemeanor. But this section does not apply to the employment of any child as a singer or musician in a church, school or academy; or in teaching or learning the science or practice of music; or as a musician in any concert. or in a thratrical erhibution, with the written consent of the mayor of the city, or the president of the board of trustees of the village where such concert or exhibition takes place. Such consent shall not be given unless forty-eight hours' previous notice of the application shall hare been served in writing upon the society mentioned in section two hundred and ninety. three of the Penal Code, if there be one within the county, and a hearing had thereon if requested, and shall be revocable at the will of the outhority giving it. It shall spelify the name of the child, its age, the names and residence of its parents or guardians,
the nature, time, duration and number of performances permitted, together with the place and character of the exhibition. But no such consent shall be deemed to authorize any violation of this section.'
"Sec. 2. This act shall take effect on the first day of September, eighteen hundred and ninety-two."
The changes in the phraseology are few, and are shown by the italics in the Code as cited.
It is claimed upon the part of the appellants that under the act in question the mayor has a right to license children to sing and dance in theatrical entertainments; and our attention is called, for the purpose of aiding us in the construction of the act under consideration, to what are called notorious facts in connection with the emendation of the section of the Code in question. It may be a misfortune that the court is entirely unfamiliar with these notorious facts, and hence cannot seize upon them to aid it in the construction of the act. If it is true that this amendment was the result of a compromise between the advocates of different views in reference to the propriety of the employment of children to sing and dance in theatrical entertainments, as claimed by the appellants, and that it was understood that under this amendment such employment, as long as sanctioned by the mayor or president of the trustees of the village where such entertainment should take place, was permissible, it would seem that the advocates of the restricted right had been more expert in the use of language than were the advocates of the more liberal views, because a very brief consideration of the section as amended will show that there is no room for the construction claimed by the appellants. As has been seen, by section 292, as amended, any person who—First, employes or consents to the employment of a child under the age of 16 years as a rope or wire walker, etc.; second, employs or consents to the employment of such child in begging, etc.; third, employs or consents to the employment of such child “in singing; or dancing; or playing upon a musical instrument; or in a theatrical exhibition; or in any wandering occupa tion;" or, fourth, employs or consents to the employment of such child "in any illegal, indecent or immoral exhibition or practice," etc.; or, fifth, employs or consents to the employment of such child “in any practice or exhibition or place dangerous or injurious to the life," etc.,-shall be guilty of a misdemeanor. The section then goes on:
"But this section does not apply to the employment of any child as a singer or musician in a church, school or academy; or in teaching or learning the science or practice of music, or as a musician in any concert or in a theatrical exhibition, with the written consent of the mayor of the city,". etc.
Under the third subdivision above spoken of, the employment of such child in singing or dancing, or playing upon a musical instrument, or in a theatrical exhibition, or in any wandering ocrupation, is an offense against the statute. Now, when the child is to be permitted to appear in certain classes of entertainments, and in a certain capacity in such entertainments, the connection of the phrases is entirely different, although the same words are