was any question between them and their employés as to wages, but it seems that they were threatened with a boycott unless they signed an agreement (Exhibit A) to purchase materials only of such factories as had received the approval of the union. If this had succeeded, the defendants and their associates, it is stated, would be in a position materially to limit and restrain the entire business of construction of buildings and the manufacture of woodworking material in Rochester, and to control the supply as well as the price of labor in those factories and on those buildings; and that would seem to be such a restraint upon trade and commerce as is condemned by subdivision 6, § 168, of the Penal Code. The agreement Exhibit A, in that feature, is against public policy, and harmful to the community, because it restrains competition and freedom of trade in articles of common necessity. Judd v. Harrington, 139 N. Y. 105, 34 N. E. 790; People v. Sheldon, 139 N. Y. 251, 34 N. E. 785, 23 L. R. A. 221, 36 Am. St. Rep. 690; Straus v. American Pub. Ass'n, 177 N. Y. 473, 69 N. E. 1107; Adams v. Brenan, 177 Ill. 194, 52 N. E. 314, 42 L. R. A. 718, 69 Am. St. Rep. 222; Marshall v. City of Nashville, 109 Tenn. 495, 71 S. W. 815. The legislative policy in this state is consistent with the principles of common law in this respect. In addition to the prohibitions of the Penal Code, the recent statute against monopolies and restrictive trade agreements (Laws 1899, p. 1514, c. 690), is broad and sweeping in its declaration against all contracts or arrangements tending to promote monopolies or restrain competition in trade in articles in common use, and it makes it a misdemeanor to promote or enter into any contract or arrangement which is intended to and may produce that result. The only articles in common use excepted from the operation of the statute of 1899 are those covered by patents or other exclusive proprietary rights. Straus v. Am. Pub. Ass'n, supra. By such an arrangement as we have been discussing the parties thereto and its promoters are not the only ones affected. Whether the building contractors conceive it to be for their advantage, as a class, voluntarily to enter into a contract which permanently abridges their purchasing privileges within limits to be fixed arbitrarily by a third party, or they are coerced into such agreement by said third party for the advantage of the latter, in either case the public is bound to be the loser. The welfare of the whole people is conserved by the open market and free competition among manufacturers in selling and builders in buying materials that go into the structures which the people need to have erected, and to protect the interests of the whole people the laws prohibiting contracts and arrangements in restraint of trade and commerce are to be enforced. The character of the defendants' acts is not to be tested according to the standards adopted in other countries and in former times when labor partook of many of the disabilities of serfdom, but it is to be judged by the more enlightened conceptions of the present, when the dignity of labor is recognized, and the equal right of all men to life, liberty, and the pursuit of happiness is guarantied by the fundamental law of a free country, in which, amid the incessant evolution of human affairs, the proofs are constantly recurring that there is no station too high for the laborer to attain, and no honorable ambition which he may not hope to realize.

and 123 New York State Reporter

According to the law, as we understand it now to be ordained by the Legislature and interpreted by the courts, the allegations of the indictment are sufficient to put the defendants to their trial, and the demurrer must be disallowed.

Demurrer disallowed.

(43 Misc. Rep. 505.)

HAMMONDSPORT LAW, LOAN & COLLECTION ASS'N v. KINZELL.

(Steuben County Court. April, 1904.)

1. CONSTABLES-TERM OF OFFICE-DE FACTO OFFICER.

Where a person was appointed constable, and a year and two days thereafter was again appointed, he was a de facto officer one year after the latter appointment, so that a service of summons by him was suffi cient, inasmuch as he could act under his first appointment until his successor had been chosen and qualified.

Appeal from Justice Court, Steuben County.

Action by the Hammondsport Law, Loan & Collection Association against Abbie L. Kinzell. From a judgment for plaintiff, defendant appeals. Affirmed.

Walter S. Drew, for appellant.

Sebring, Cheney & Rogers, for respondent.

CLARK, J. The defendant appeals from a judgment rendered against her January 11, 1902, and the only ground claimed by the appellant for the reversal of the judgment is that the person who made the service of the summons, one George J. Jump, was not in fact a constable of the town at, the time he served the summons, and that he had not been deputized by the justice to make the service, and the service was therefore illegal and void.

It appears that on the 14th day of November, 1900, said George J. Jump was legally appointed a constable of the town of Urbana, by the town board, to fill a vacancy that then existed, and that he duly qualified and entered upon the discharge of the duties of his office. At the town meeting held in that town in November, 1901, five constables were elected, but Mr. Jump was not one of them, and one of the constables so elected failed to qualify, and on the 16th day of November, 1901, the town board appointed Mr. Jump in place of the constable who had failed to qualify. He thereupon filed his bond, took the usual cath, and filed that, and entered upon the discharge of the duties of his office, and continued to act as a constable of the town of Urbana up to the time he served the summons in this case, which was on the 4th day of January, 1902. The appellant urges that Mr. Jump's appointment of November, 1900, held good until January 1, 1902, and then expired, and that the appointment of November 16, 1901, was of no force, and was in fact illegal, because there was no vacancy at that time, and no appointment could be made by the town board to fill a vacancy that did not exist. Without passing upon the legality and regularity of the appointment of November 16, 1901, it is a fact that the appointment of November 14, 1900, was perfectly legal. Mr. Jump took and filed the usual oath, and filed his undertaking, and

entered upon the discharge of his duties as a constable, and continued to act as such up to the time he served the summons in the case at bar. He was at least acting upon a colorable right to the office, for he had been legally appointed, and he had acted as a constable a sufficient. length of time so that it could be presumed that he was properly appointed, and it is very doubtful, under the circumstances of this case, when the officer had been acting for more than a year under an appointment to the office from the proper appointing power, and holding himself out to the public as a constable, and performing the duties pertaining to the office without question from any quarter, whether his acts can be attacked in a collateral manner to the prejudice of an entirely innocent party. See Hand v. Deady, 79 Hun, 75, 29 N. Y. Supp. 633. At least Mr. Jump was a de facto officer, and his acts while performing the duties of the office to which he had been appointed should be upheld. Dolan v. Mayor, 68 N. Y. 278, 23 Am. Rep. 168; Wilcox v. Smith, 5 Wend. 234, 21 Am. Dec. 213. The case of Fowler v. Bebee, 9 Mass. 231, 6 Am. Dec. 62, cited by counsel for the respondent, is important, and bears on the precise question raised by this appeal. In that case it was clear that the sheriff's appointment was illegal, but the court held that he was in fact the sheriff of the county. Even assuming that the appointment of November 16, 1901, was of no legal effect, it seems clear that Mr. Jump could act under the prior appointment until his successor had been chosen and had qualified, even though the time for which he had been appointed had expired. Public Officers Law, Laws 1892, p. 1657, c. 681, § 5. I think the person who served this summons was a de facto officer, performing the duties of the office to which he had been legally appointed in 1900. No objection was made at any time to the regularity of the service, as the defendant did not appear at the time the summons was returnable; and on the whole case I am convinced that the acts of the officer while he was in fact such, and performing the duties of the office with the knowledge of the community that he was such acting officer, should not be disturbed, and that justice requires the affirmance of the judg ment. Judgment appealed from must be affirmed, with costs. Judgment affirmed, with costs.

(43 Misc. Rep. 577.)

In re WEINSTEIN'S ESTATE.

(Surrogate's Court, New York County. May, 1904.)

1. LEGACIES-TIME OF VESTING.

Where a payment of a legacy given absolutely is deferred until the death of the husband of testatrix, the legacy does not fail because the legatee dies before the husband, but after the testatrix.

2. WILLS-CONSTRUCTION-CONVERSION.

A will authorized executors to sell lands to pay legacies limited to an amount which was evidently intended to exhaust the entire estate, and. in the event of a surplus of a certain amount remaining, legacies to that amount were given, made payable out of that surplus only. On the sale there was a surplus greater than all the legacies, and there was no resid

12. See Conversion, vol. 11, Cent. Dig. § 44.

and 123 New York State Reporter

uary clause. Held, that the land sold was converted by the sale into personalty, to the extent of the legacies, but that the surplus must be regarded as realty, passing to the heirs.

Judicial settlement of the accounts of the executor of the will of Caroline Weinstein, deceased. Decree rendered.

Kurzman & Frankenheimer, for executrix.

Fleischman & Fox, for Charles Rosenbaum and other heirs.

THOMAS, S. The legacy of $500 to Sarah Hamburger, who was living at the time of the death of the testatrix, did not lapse because of the death of the legatee in the lifetime of the husband of the testatrix, though such legacy was payable only at his death. Mitchell v. Knapp (Sup.) 8 N. Y. Supp. 40; Loder v. Hatfield, 71 N. Y. 97. The amount of this legacy will be paid to the administrator of Sarah Hamburger.

The twenty-eighth clause of the will does not assume to pass the general residue of the estate of the testatrix, in excess of the legacies, specifically limited as to their amounts, therein set forth. The testatrix was clearly of the opinion that the legacies contained in clauses 5 to 27, inclusive, would probably exhaust her entire estate, and might not suffice to pay all of such legacies in full, and she carefully designated those of them which should abate if any abatement was found necessary. She supposed it possible that there might be a surplus, not exceeding $1,600, and therefore made legacies to that amount, payable only out of such surplus; such legatees to share in such surplus ratably, if it should not suffice to pay them in full. As a matter of fact, the estimate of the testatrix of the value of her estate at the time she made her will, and up to the time of her death, was correct. Subsequent to her death the parcel of real estate, which was her principal asset, greatly rose in value, and was sold for a price which leaves a surplus over and above all legacies in the hands of the executors. As to such surplus the testatrix died intestate. The surplus thus created is a part of the proceeds of land sold under a power. The power directed a sale for the payment of legacies, and, to the extent of the legacies, the land was legally converted into personalty. The surplus over legacies is, however, for the purpose of determining the rights of persons claiming to take under the laws governing intestate estates, to be treated as real property, and passes to the heirs at law of the testatrix, and not to her next of kin. Parker v. Linden, 113 N. Y. 28, 20 N. E. 858, 861. If counsel do not agree as to the proportions in which division of the surplus is to be made, they may submit memoranda of their contentions on the settlement of the decree. Tax costs and settle decree on notice. Decreed accordingly.

(43 Misc. Rep. 573.)

In re DAVENPORT.

In re FIORENTINO'S ESTATE.

(Surrogate's Court, Kings County. May, 1904.)

1. ALIENS-ADMINISTRATION OF ESTATE-PUBLIC ADMINISTRators.

Where the public administrator was appointed to administer upon the estate of an Italian subject who died a resident of New York, and the sole next of kin resides in Italy, the administrator may turn over the balance of the estate to the consul general of Italy, and it is not necessary that the next of kin be cited and paid directly.

Proceedings on the final judicial settlement of the account of William B. Davenport, public administrator, as administrator of Pietro Fiorentino, deceased.

Frederick H. Chase, for public administrator.

Ullo & Ruebsamen, for Gustav Tosti, acting consul general of Italy.

CHURCH, S. The deceased was an Italian subject, resident of Kings county, where he died. The sole next of kin is the father, residing in Italy. The public administrator was duly appointed, and is about to render his account, by which there will be a balance payable to the next of kin. The Italian consul claims the right to intervene and take possession of said balance. The same question has been before the court several times for adjudication. Matter of Tartaglio, 12 Misc. Rep. 245, 33 N. Y. Supp. 1121, in which it was held that the consul general had the right to receive such distributive share. In Matter of Fattosini, 33 Misc. Rep. 18, 67 N. Y. Supp. 1119, it was held that the consul general of Italy had the exclusive right to administer upon Italian subjects' estates. In Matter of Lobrasciano, 38 Misc. Rep. 415, 77 N. Y. Supp. 1040, it was held that the consul general had the sole right to administer. In Matter of Logiorato, 34 Misc. Rep. 31, 69 N. Y. Supp. 507, the surrogate of New York county held that the consul general of Italy was not entitled to administer. These decisions are thus directly contradictory. I shall not attempt to discuss the question at length and decide which of the two is correct, as in the case before me the question is simply whether the public administrator shall turn over the balance to the consul general, or cite the next of kin and pay him directly. Even if we give to the word "intervene," as used in the treaty with the Argentine Republic, the interpretation placed on the same by Judge Thomas, still the right to so intervene would certainly include the right to receive the property belonging to the alien, and hence the money in question here should be paid over to the consul general.

It is to be regretted that this important question should only arise. in such small matters that there is no decision of an appellate court on the matter, and hence that such confusion should exist in regard to the

same.

Let decree be presented accordingly.
Decreed accordingly.