and 123 New York State Reporter

Laws 1888, p. 43, c. 40, as amended by Laws 1889, p. 154, c. 125. That language is clear and easily understood. It was the intention of the Legislature to give to the people of Hornellsville justices' courts, with jurisdiction similar to that of justices' courts of the towns, and it had a clear right to do this under Const. art. 6, § 17. Canisteo, where the defendant resided, and where the summons in this case was served, adjoined the town of Hornellsville, out of which the city of Hornellsville was erected; and it seems reasonable to assert that, if the Legislature had intended that the jurisdiction of justices of the peace of the city of Hornellsville should be limited to cases where one or both of the parties resided in any town or towns of Steuben county adjoining the "city," instead of the "town," that language would have been adopted.

I have examined the numerous cases cited by the learned counsel for the appellant, but I cannot see that any of them can be considered an authority here, for the facts in each of the cases are not similar to the facts in the case at bar. I am very clearly of the opinion that the case of Desmond v. Crane, 39 App. Div. 190, 57 N. Y. Supp. 266, must be controlling here; that the courts of justices of the peace of Hornellsville are not inferior local courts, but that the Legislature had power under the Constitution to provide for the justices of the peace in Hornellsville jurisdiction similar to that of justices of the peace of the towns; and that such was the intention of the Legislature in passing the amended charter of the city, above quoted.

The interesting cases of Armstrong v. Kennedy, 23 Misc. Rep. 47, 51 N. Y. Supp. 509, and Shaeffer v. Steadman, 24 Misc. Rep. 267, 53 N. Y. Supp. 586, are in line with the foregoing conclusions. If I am correct in these views, it follows that the judgment appealed from must be affirmed.

(Court of General Sessions, Kings County. July, 1904.)

1. CRIMINAL LAW-ADMISSION OF EVIDENCE-HARMLESS ERROR.

On trial for murder in the first degree illegal evidence was received, which on the next day of the trial was stricken out, and the jury was instructed to disregard it. Held not ground for certificate of reasonable doubt, where on all the evidence the guilt of the accused of murder in the second degree, of which he was convicted, was clear.

Thomas C. Smith was convicted of murder in the second degree, and applies for certificate of reasonable doubt. Denied.

Lorlys Elton Rogers, for the motion.

Edward Sanford, opposed.

GAYNOR, J. The defendant claimed that the pistol shot which killed the deceased was accidental. The learned trial judge admitted in evidence an oral statement of the deceased to a police officer that the defendant shot her intentionally, to which the defendant's counsel ex

cepted. The said counsel afterwards moved to strike the evidence out. The motion was granted in part, and the next day on the coming in of the court the learned trial judge resumed consideration of the matter at his own instance, and granted the motion in respect of all the evidence, and instructed the jury to disregard it. Was the error cured? No one can tell how that will be finally decided by reading the decisions of our highest court. A strong tendency exists in our appeal courts to regard jurymen as below par in intelligence and judgment, and quite incapable of resisting prejudice, whereas the theory of our system of government and laws is to the very contrary, i. e., that they are better fitted to judge the facts, and less likely to be unduly influenced, especially in criminal prosecutions, than judges. The rule in this state that it must appear that the error "could by no possibility have prejudiced the defendant" (People v. Koerner, 154 N. Y. 376, 48 N. E. 730), seems to me to have been based on the assumption that a jury is intellectually unfit to try a case, and is giving way by degrees. For a bench of judges to complaisantly say, "Of course this error would not have affected us, but we cannot say that it did not possibly affect the jury," not only puts the jury below the learned judges in intelligence and common sense, but seems to put them below average intelligence and common sense, whereas the law rates them to the very contrary. It is also applying a rule of perfection to trials, whereas no such rule is applicable to any of the affairs of men.

The error in this case was a hard one on the defendant, but in view of all of the evidence, and of the clearness of the defendant's guilt, it does not seem to me that it may be reasonably said that the jury were affected by the evidence which was struck out. On the contrary, the assumption ought to be that they were not, but that they disregarded it as they were instructed to do. Gall v. Gall, 114 N. Y. 109, 21 N. E. 106; Holmes v. Moffat, 120 N. Y. 159, 24 N. E. 275; People v. Schooley, 149 N. Y. 99, 43 N. E. 536; People v. Doody, 34 Misc. Rep. 463, 69 N. Y. Supp. 724.

Application denied.

and 123 New York State Reporter

MEMORANDUM DECISIONS.

ABBOTT, Respondent, v. MILLER, Appellant, et al. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) Action by Vasco P. Abbott against Samuel W. Miller, as administrator, etc., impleaded, etc. No opinion. Judgment and orders unanimously affirmed, with costs.

ADAMS, Appellant, v. METROPOLITAN ST. RY. CO., Respondent. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) Action by John E. Adams against the Metropolitan Street Railway Company. No opinion. Judgment and order unanimously affirmed, with costs.

C. Barlow against the First National Bank of Ossining. No opinion. Judgment affirmed, with costs.

BECK, Appellant, v. CATHOLIC UNIVERSITY OF AMERICA, Respondent. (Supreme Court, Appellate Division, First Department June 29, 1904.) Action by Louis Beck against the Catholic University of America. A. Caruthers, for appellant. A. I. Elkus, for respondent No opinion. Judgment affirmed, with costs.

BEETSON v. STOOPS et al. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by Catherine M. Beetson against Mary E. Stoops and others. From ADLER, Respondent, v. GOLDSTEIN et al., an order granting defendant Stoops leave to Appellants. (Supreme Court, Appellate Divi- serve an amended answer, plaintiff appeals. sion, First Department. June 29, 1904.) Ac- Modified. J. Delahunty, for plaintiff. H. Wethtion by Lena Adler against Jacob Goldstein erhorn, for defendant Stoops. H. W. Bookand others. M. H. Hayman, for appellants. | staver, for other defendants. M. G. Cohen, for respondent. No opinion. OrPER CURIAM. The order will be modified der affirmed, with $10 costs and disbursements. by imposing, as a condition of allowing the

In re ADMISSION OF ATTORNEYS AND COUNSELORS AT LAW. (Supreme Court, Appellate Division, Second Department. June 23, 1904.) In the matter of the admission of attorneys and counselors at law. Ordered that Paul Grout, Esq., be, and he hereby is, appointed an additional member of the committee on character.

ALFSON, Respondent, v. BUSH, CO., Limited, Appellant. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) Action by Anon Alfson, as administrator, etc., of Anders Tobiasen, deceased, against the Bush Company, Limited. No opinion. Judgment and order unanimously affirmed, with costs.

AMERICAN AUDIT CO., Respondent, v. INDUSTRIAL FEDERATION OF AMERICA, Appellant. (Supreme Court, Appellate Division, First Department. June 29, 1904.) Action by the American Audit Company against the Industrial Federation of America. L. M. Berkeley, for appellant. J. J. Allen, for respondent. No opinion. Order affirmed, with $10 costs and disbursements.

BARKLEY V. COLUMBIA STORAGE WAREHOUSE CO. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by Rose L. Barkley against the Columbia Storage Warehouse Company. No opinion. Motion granted, with $10 costs.

BARLOW, Appellant, V. FIRST NAT. BANK OF OSSINING, Respondent. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) Action by Mary

amendment, the payment of the plaintiff's taxable costs and disbursements to the time of the motion, together with $10 costs of motion, and, as modified, the order will be affirmed, without costs.

BERRY, Respondent, v. PARSONS, Appellant. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) Action by Edward W. Berry against Florence S. Parsons. No opinion. Judgment of the Municipal Court affirmed, with costs.

BLANCK, Appellant, v. PRESTON, Respondent. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by Mary A. Blanck against Charles M. Preston. E. V. Frothingham, for appellant. F. M. Patter son, for respondent. No opinion. Order affirmed, with $10 costs and disbursements.

In re BODINE. (Supreme Court, Appellate Division, First Department. June 29, 1904) In the matter of Florence M. Bodine. No opinion. Motion granted, on payment of $10 costs.

BOLLES REVOLVING SASH CO., Respondent, v. KOHART, Appellant. (Supreme Court, Appellate Division, First Department. July 13, 1904.) Action by the Bolles Revolving Sash Company against Frank_C. Kohart. W. E. Gowdey, for appellant. C. L. Kingsley, for respondent. No opinion. Judgment and order affirmed, with costs.

BOWERS, Appellant, v. BARSE et al., Respondents. (Supreme Court, Appellate Division, First Department. July 13, 1904.) Action by John A. Bowers against Mills W.

MEMORANDUM DECISIONS.

Barse and another. C. W. Artz, for appellant. | pellate Division, Second Department. July 28,
J. A. Corbin, for respondents. No opinion. 1904.) Action by Minnie H. Burns against the
Judgment affirmed, with costs.
New York & Queens County Railway Company.
No opinion. Judgment and order unanimously
affirmed, with costs.

lant.

and 123 New York State Reporter

CHAFFEE, Respondent, v. STATE, Appel(Supreme Court, Appellate Division, Third Department. June 30, 1904.) Action by Carrie E. I. Chaffee, an infant, by Emmond D. Chaffee, her guardian ad litem, against the state of New York. No opinion. Judgment unanimously affirmed, with costs.

CHURCH et al. v. PHELAN. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by John S. Church and others against James J. Phelan. No opinion. Motion to dismiss denied, on payment of $10 costs of motion and $10 costs of term.

In re CITIZENS' WATER SUPPLY CO. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) In the matter of the petition of the Citizens' Water Supply Company of Newtown relative to acquiring title to real estate, etc., at Cook avenue and Toledo avenue, in the borough of Queens, etc.

PER CURIAM. Order confirming the report of the commissioners reversed, with $10 costs and disbursements, for the error at folio 138 in the rejection of evidence of the price paid by the owners for the lots involved in the condemnation proceedings. Proceedings remitted for a new appraisal before new commissioners to be appointed.

CLARK, Respondent, v. NORDONE, Appellant. (Supreme Court, Appellate Division, Second Department. June 24, 1904.) Action by John Clark against Frank Nordone. No opinion. Judgment and order of the City Court of Mt. Vernon affirmed, with costs.

to be agreed upon by counsel, at the next term, upon the following questions: (1) Whether the proof shows any warrant for the payments made on account of the Sunnyside Company beyond the repayment to the Corbin Banking Company of the overdraft paid before Mr. Corbin's death. (2) Whether the proof suffices to establish a contract between Mr. Corbin and Mr. Pratt, enforceable after Mr. Corbin's death, for the purchase of the Long Island Railroad Company's stock. (3) Whether, in view of the fact that Mrs. Corbin's life estate in the Fifth avenue property was restored to her, the taxes and expenses of maintenance were legally chargeable against Mr. Corbin's estate.

CORNELL, Respondent, v. LAWTON, Appellant. (Supreme Court, Appellate Division Second Department. July 28, 1904.) Action by Anna Cornell against Newberry D. Lawton.

PER CURIAM. Judgment and order of the with costs. County Court of Westchester county affirmed,

WOODWARD, J., dissents.

In re COUNTY TRUST CO. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) In the matter of the applica tion of the County Trust Company for an or der designating it as a deposit bank for funds and moneys paid into court. No opinion. Or der granted designating petitioner as a depositary of court moneys.

CRAWFORD, Respondent, v. ACETYLENE GENERATOR MFG. CO. et al., Appellants. (Supreme Court, Appellate Division, First DeCONGREGATION DORSHE, ETC., Re-partment. July 13, 1904.) Action by James R. spondent, v. BROWN et al., Appellants. (Su- Crawford against the Acetylene Generator preme Court, Appellate Division, First Depart- Manufacturing Company and others. C. J. ment. June 24, 1904.) Action by the Congre- Hardy, for appellants. H. A. Bayne, for re gation Dorshe, etc., against Max Brown and spondent. No opinion. Order affirmed, with others. M. Brown, for appellants. C. Dush- $10 costs and disbursements. kind, for respondent. No opinion. Order affirmed, with $10 costs and disbursements.

DASSORI, Appellant, v. CITY OF NEW
late Division, First Department. July 13,
YORK, Respondent. (Supreme Court, Appel-
Sep-1904.) Action by Frederick Dassori against the
city of New York. J. P. Murray, for appellant
T.
Connoly, for respondent. No opinion.
Judgment affirmed, with costs.

CONNORS v. MONAHAN. (Supreme Court, Appellate Division, Third Department. tember 20, 1904.) Action by Annie Connors against Thomas Monahan. No opinion. tion granted, with $10 costs.

Mo