ject." The law we are considering simply specifies what may be done with a tax which has been legally imposed. The constitutional provision referred to can have no application to such a case as this. Succession Tax Case, 6 Cent. Rep. 781, 104 N. Y. 306. izes any taxpayer in any town, village or city | is to be applied; and it shall not be sufficient to which has issued bonds in aid of the construc- refer to any other law to fix such tax or obtion of any railroad or railroads to petition to the county judge for an order compelling the county treasurer to execute the provisions of the Act. It is not correct, therefore, to say that these provisions are to be executed only in the case of railroads constructed under the Act of 1869, and the amendments thereto. The provisions are broad, comprehensive and general, and were intended for the benefit of all municipalities bonded in aid of railroads constructed in or through them. It makes no difference as to the duty of the County Treasurer that the taxes thus to constitute the sinking fund were not expressly collected or paid over to him for that purpose. The statute appropriates the taxes and makes it his duty to separate and set them apart for the sinking fund. We do not perceive that these provisions of section 4 are in conflict with any constitutional provision. They do not impose a tax on property in other towns of the County of Wayne, as claimed by the respondent, for the benefit of the Town of Sodus. They simply deprive other portions of the county of the benefit to be derived from the taxation of the railroad property within the Town of Sodus. As to other portions of the county it is practically the same as if the railroad property was exempt from taxation. It would be perfectly competent for the Legislature to exempt all the railroads from taxation in the towns bonded to aid in their construction; and in making such exemption no constitutional provision would be violated. So, too, the Legislature could devote all the taxes imposed upon such railroads to town, village or city purposes; and this is what it has done. These provisions cannot even be charged with any great injustice. The railroad property thus to be taxed was in the main created by the municipalities bonded for their construction; and until they have either been reimbursed for their expenses which they have thus incurred, or have been able otherwise to pay their bonds, it is certainly not very unjust that they should have the benefit of the taxes imposed upon the property which they have thus created. These provisions are not in conflict with section 8 of article 7 of the Constitution, which provides that "No moneys shall ever be paid out of the treasury of this State, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within two years next after the passage of such appropriation Act; and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied; and it shall not be sufficient for such law to refer to any other law to fix such sum." This fund was not in the treasury of the State and never belonged to the State or to any fund under its management; hence, that section of the Constitution has no application to this case. It is also clear that these provisions do not violate section 20 of article 3 of the Constitution, which provides that "Every law which imposes, continues or revives a tax, shall distinctly state the tax and the object to which it We are, therefore, of opinion that the provisions of section 4 are not in conflict with the Constitution, that their meaning is reasonably plain, and that it is practicable to execute them. It, therefore, only remains for us to inquire whether there is anything peculiar to this case which justifies the County Treasurer in his refusal to execute these provisions. What we have already said is a sufficient answer to most of the other objections made. It appears quite clearly from the petition and answer and the evidence upon the hearing before the county judge that the taxes imposed upon these two roads for the year 1881, after making deductions for school and road taxes, were much more than $427.69. But the petition alleges that that was the sum over and above school and road taxes, which was paid to the County Treasurer as the railroad taxes of that year; and upon the hearing before the county judge the County Treasurer admitted that the amount of all taxes collected upon the assessed valuation of the railroads in the Town of Sodus for the year 1881, and paid to him, was the sum of $2,602.09, of which sum $427.69 was the portion of the railroad taxes other than school and road taxes. And it was that sum which the petitioner prayed that the County Treasurer be compelled to pay, invest or set apart as a sinking fund under the fourth section. It is probably true, upon all the facts ap pearing in the case, that the County Treasurer ought to have set aside a larger sum in the execution of his duties under the Act. But it is no defense that the petitioner has not prayed for a sufficient amount, and that possibly the County Treasurer could be vexed with further proceedings requiring him to set aside a further amount. It is his duty to set aside and invest as a sinking fund all the taxes paid to him and appropriated by section 4 for that purpose. But if the county judge should make an order requiring him to set aside a less sum than he ought to, certainly he cannot complain of such an order. Upon a hearing of this case before the county judge, notwithstanding the prayer of the petition, the County Treasurer could be compelled to set aside for a sinking fund all the taxes which may appear to have been paid to him and were devoted by the statute to that purpose; and there is ample power conferred upon the county judge to ascertain the amount and make an order accordingly. It is no answer for the Treasurer to say that if he should set aside these taxes for a sinking fund there would be a deficiency in other funds, and that he may not have money enough to pay the obligations of the county to the State and to the county officials and county creditors. He has no right to use the money produced by these taxes to discharge any of these obligations. The law has appropriated it for a specific purpose, and it is his duty to apply it to that purpose. 1887. PEOPLE, ex rel. FAIRCHILD, V. COMRS. OF BROOKLYN. TEETS V. MIDDLETOWN. 927 There are no subsequent statutes which in |fice, or damages for such exclusion; hence, any way interfere with these provisions of sec- both on account of such costs and the salary, tion 4. The general laws of the State for the she is interested in the appeal pending in this imposition and collection of taxes do not inter-court. Until the decisions below have been refere, and were not intended to interfere with versed, she cannot enforce payment of any salthis section. These taxes were devoted to a ary, or resist the payment of the costs which special purpose by section 4, and all prior laws have been adjudged against her husband. Peoin conflict with that section, or requiring a dif-ple, Hatzel, v. Hall, 80 N. Y. 117, 127; Nichols ferent disposition of taxes thus collected, are so far modified or repealed; and our attention has been called to no subsequent statute which has any bearing whatever upon the questions here involved. We are, therefore, of opinion that the orders of the General Term and of the county judge should be reversed, and the proceedings remitted to the county judge for a further hearing upon the petition, and that the appellant recover costs against the respondent in this court and in the Supreme Court. All concur. PEOPLE, ex rel. Robert FAIRCHILD, v. COMMISSIONERS OF Department of Fire & Buildings of BROOKLYN. v. MacLean, 2 Cent. Rep. 500, 101 N. Y. 526. The motion should be granted. Josie TEETS, Respt., v. Village of MIDDLETOWN, Appt. 1. It is always competent to inquire what relations exist between a party and his witness, for the purpose of showing the motive and influence under which the evidence is given and the existence of any bias or prejudice on the part of the witness. The court of appeals has power to sub- (Decided May 10, 1887.) Such evidence, however, affects the credibility of the witness only; and where no material question of fact was controverted on the trial, and the evidence of the witness could have been wholly stricken from the minutes without affecting the result in the least degree, an erroneous ruling upon such question furnishes no valid reason for reversing the judgment. (Decided June 7, 1887.) MOTION on behalf of the administratrix of APPEAL from a judgment of the Supreme deceased relator to be substituted in his place and stead as appellant from an order of the Supreme Court at General Term in the Second Department, affirming an order of Special Term, affirming proceedings sought to be reviewed by certiorari and quashing the writ. Granted. The facts in relation to the motion are stated in the opinion. Mr. Edward F. O'Dwyer, for the motion. Per Curiam: At the special term the proceedings of the Commissioners in removing the relator from his office were affirmed and the writ of certiorari was quashed, with $10 costs. At the general term the order of the special term was affirmed, with $10 costs and disbursements. By virtue of these two orders the relator became liable to pay upwards of $20, and payment of that sum can now be enforced against his es tate. If the decisions below were wrong, and the relator was improperly removed from office, and the orders below should be reversed, then upon their reversal the administratrix of the relator would be entitled to recover his salary during the time he was excluded from his of Court at General Term in the Second Department, affirming a judgment of the Orange Circuit on a verdict for plaintiff for $3,000 damages in an action to recover for personal injuries. Affirmed. The plaintiff, while riding in the streets of Middletown, on the evening of June 30, 1883, was suddenly thrown from the carriage and severely injured. The defendant's employees and servants had placed a heap of gravel and bricks in the street. It was dark and the street was very much shaded by trees. The horse was thrown down by contact with the obstruction; and the sudden stoppage of the wagon thereby threw the plaintiff out. One Dusenberry was the driver of the plaintiff's vehicle. At the trial plaintiff was called as a witness, and testified to the circumstances of the accident, which were not denied by defendant. Said Dusenberry was also called by plaintiff as a witness, and also testified to the same effect. On cross examination defendant's counsel asked him whether he was engaged to the plaintiff or not. This was objected to by plaintiff, and the objection was sustained and an exception noted. As to plaintiff's injuries, one of her witnesses testified "That there seemed to have been an injury to the spine and an inflamed and shattered condition of the nervous system as a whole; that there was an uneasy, writhing, worm-like motion of muscular tissue;" and that in his opinion "The plaintiff was rather unlikely ever entirely to recover." The jury returned a verdict for plaintiff. On appeal to the general term and judgment thereon the same was affirmed and defendant appealed to this court. Mr. Wm. F. O'Neil, for appellant. Per Curiam: The exception taken by the defendant's counsel to the ruling of the trial court excluding an answer to his question, on cross examination, to the plaintiff's witness as to whether he was engaged to the plaintiff or not, was undoubtedly well taken. It is always competent to inquire what relations exist between a party and 44 his witness, for the purpose of showing the motive and influence under which the evidence is given and the existence of any bias or prejudice on the part of the witness. Such evidence, however, affects the credibility of the witness only; and if his evidence is wholly immaterial upon all the material issues of the case, an erroneous ruling upon such question furnished no valid reason for reversing the judgment. That was the case here. No material question of fact was controverted on the trial, and the evidence of the witness could have been wholly stricken from the minutes without affecting the result in the least degree. The defendant was not prejudiced by the ruling, and the judgment should, therefore, be affirmed. All concur. END OF CASES. INDEX. The points decided are denoted by the name of the case appended or “Id.;” ant. Perry's Appeal (Pa.) BRIEFS AND NOTES. 164 Action of account render lies between co- 148 In suit upon a book account, the copy LEGACY, VI. LEGACY, X.; DISCONTINUANCE; EJECT- 1. The cause of action for damages ac. Freemansburg v. Rodgers (Pa.) 828 3. Parties. Where a party in control of Swift v. Pacific Mail Steamship Co. (N. Y.) 811 ACKNOWLEDGMENT. LIMITATIONS OF ACTIONS, III. ld. 5. A mortgagor cannot maintain a bill to the power of attorney, without joining such | ADMINISTRATOR DE BONIS NON. owner as a party to the bill. See EXECUTORS AND ADMINISTRATORS, II., 37. Blake v. Garwood (N. J.) 365 6. To a bill filed for the construction of a will, testator's heirs at law are necessary parties. Lomerson v. Vroom (N. J.) ADMIRALTY. See CHARTER-PARTY. 366 ADULTERATION. 7. The court of appeals may substitute an administratrix in certiorari to review the action of municipal authorities in removing the relator from office, where, in the relator's lifetime, the proceeding was affirmed and certiorari quashed at special term, with costs, and the order of special term was affirmed at general term, with costs, and the relator's estate is liable for such costs. People v. Brooklyn (N. Y.) 8. Where the executrix sold testator's prop-to prevent such deception. erty and put a portion of the proceeds into the hands of an agent, the administrator de bonis non, appointed after her death, may sue in his own name. 1. Laws 1885, chap. 183, § 7, to "Prevent Deception in the Sale of Dairy Products," etc., is not in violation of the Constitution of New York, nor subversive of the constitutional rights of liberty or the enjoyment of property. 247 People v. Arensberg (N. Y.) Buckland v. Gallup (N. Y.) 927 703 2. Producers of oleomargarine have no constitutional right to resort to devices for the purpose of making their product resemble dairy butter; and the Legislature has power Id. 3. Dealers in oleomargarine may be legally required to sell it for what it really is and upon its own merits. Id. 4. The statutory prohibition is aimed at a designed and intentional imitation of dairy 9. Only such causes of action accruing dur- butter. Id. ing lifetime need be prosecuted by his exec5. The artificial coloring of oleomargautors or administrators in their represent-rine to make it resemble dairy butter, and ative capacity. thereby enhance its price, comes within the statutory prohibition against imitation. Id. 10. If an injury to the property of a dece dent, or its conversion, happens after his death, the executor or administrator may sue in his Id. own name. 11. Where the complaint by one as executor shows a cause of action in favor of the plaintiff in his individual character, descriptive words therein, such as "executor," etc., may be rejected,leaving the action to stand as one in the individual capacity of the plaintiff. Litchfield v. Flint (N. Y.) 41 BRIEFS AND NOTES. Id. BRIEFS AND NOTES. 12. Under the Act of March 30, 1875, a change of venue in civil cases, on the ground that the defendant cannot have an impartial trial, is within the discretion of the court below; and a refusal to grant the change will ADVANCEMENTS. not be reversed, unless the discretion has been abused. Evidence of prior acts of improper familiarity and adultery. (N. Y.) 56 See DEVISE AND 2. In an action on an insolvent's bond an affidavit of defense is sufficient, if it alleges that the bond was not forfeited on the day the 836 insolvent's petition was dismissed; that the 814 hearing was fixed not for that day but for a 812 subsequent one, and had been continued by a rule, not yet disposed of, to show cause why the order dismissing the petition should not be rescinded, and that, on the day the petition was dismissed, the insolvent surrendered himself to the keeper of the county prison. 856 Betz v. Greenwaldt (Pa.) (Pa.) 607 Defect. (N. Y.) EXECUTORS AND ADMINISTRATORS. |