wherein all the children of the state may be educated. Const. art. 9, § 1. To hold that the Legislature intended to confine the exemption to private schools would require an inference that it deliberately ignored the constitutional mandate. It would also charge the Legislature with ignorance of the provisions of the Education Law (heretofore quoted) passed at its same session in 1909. Legacies for the support of public schools should be encouraged, and should not be diminished by deductions for purposes of taxation. The Legislature clearly intended that the state should not profit from such gifts, for they relieve the general burden of the expense of education. The language of this section, by an amendment made in 1905, was changed by the elimination of the word "exclusively," which characterized the scope of educational and other corporations. Matter of Mergentime, 129 App. Div. 367, 113 N. Y. Supp. 948, aff'd 195 N. Y. 572, 88 N. E. 1125. In the Matter of Saunders, 77 Misc. Rep. 54, 137 N. Y. Supp. 438, an exemption was allowed in the case of a bequest to the city of Yonkers for a trade school. A municipal corporation maintaining a free school system as one of its functions is clearly an educational corporation within the statutory exemption.

[3] Neither can this exemption be denied to cities and towns of other states and limited to municipal and other public corporations of this state. The section reads that the exemption shall apply to such corporations "wherever incorporated." Surrogate Slater, of Westchester county, in Matter of Burnham (Sur.) 183 N. Y. Supp. 539, recently held such transfers were exempt when made to a town situated in Connecticut. The decisions in this county in Matter of Andreas M. Miller, 109 Misc. Rep. 267, 178 N. Y. Supp. 554, and Matter of Carpentier, N. Y. L. J. December 24, 1919, have no direct application as neither related to gifts to educational corporations.

[4] It is claimed that the use of the words in section 221 exempting gifts of "real property to municipal corporation in trust for a specific purpose" is an indication of legislative intent to tax gifts other than of real property. This clause, however, must be held to be an additional exemption in favor of such gifts of real property for all public purposes other than "religious, educational, library, charitable," and others enumerated at the beginning of that section of the Tax Law. The construction adopted by me follows the liberal interpretation given to exemptions by the Appellate Division, First Department, in the Matter of Mergentime, supra, and the Matter of Rockefeller, 177 App. Div. 786, 165 N. Y. Supp. 154. In the exercise of discretion the original order is amended,

Motion granted.

(193 App. Div. 463)

(184 N.Y.S.)

PEOPLE ex rel. NEWTON, Atty. Gen., v. SPECIAL TERM, PART 1, SUPREME COURT, NEW YORK COUNTY, et al.

(Supreme Court, Appellate Division, First Department. October 15, 1920.) 1. Courts 70-Justice of Supreme Court may accept assignment out of county.

A justice of the Supreme Court is authorized to hold court in any county, and while he cannot be assigned to a term outside his own department, if he accepts such assignment, he is fully authorized to act.

2. Prohibition 10(1)-Only issued against tribunal without jurisdiction. A writ of prohibition may only be issued against a court or other tribunal possessing judicial powers, where it is without jurisdiction, or is proceeding, or threatening to proceed, in excess of its jurisdiction.

3. Criminal law 1024 (3)-People have no right of appeal from order dismissing indictment.

The people have no right of appeal from an order dismissing an indictment, whether the order is made by a court with or without jurisdiction.

4. Criminal law ~100 (2)—Criminal jurisdiction not conferred upon any particular part of Supreme Court.

When Const. 1894, art. 6, § 6, abolished Courts of Oyer and Terminer, the criminal jurisdiction which they theretofore exercised was conferred upon the Supreme Court generally, and not upon any part, term, or branch thereof, and neither by the Constitution nor by statute, nor by the general rules of practice, has a criminal term or branch of the Supreme Court been created or recognized, and the only reference thereto is in rule 4 of the Trial Term rules of the First judicial district.

5. Criminal law 100 (2)-Court rules relating to applications to different parts of same court do not apply to criminal actions.

The rules that have been adopted by the Supreme Court prescribing the motions and applications that are to be made to the different parts of the court were not intended to embrace motions or applications in criminal actions.

6. Criminal law 100 (2)-Special Term, Part 1, could hear motion to dismiss indictment found at Extraordinary Term.

Where an Extraordinary Term, at which indictments were found, was not in session, a justice presiding at Special Term, Part 1, in his discretion could hear a motion to dismiss the indictments.

Application by the People of the State of New York, on the relation of Charles D. Newton, Attorney General, for an alternative writ of prohibition, to restrain Special Term, Part 1, of the Supreme Court in and for the County of New York, from further proceedings with respect to a motion made by Charles F. Murphy and others. Writ denied. Application by the relator for an alternative writ of prohibition to restrain Special Term, Part 1, of the Supreme Court in and for the County of New York, and the Justice presiding thereat, and each of the defendants, from taking any further proceedings with respect to a motion made by the defendants Murphy, Baldwin, Walden, McCarthy, Smith, and Corn Products Refining Company for the dismissal of a joint indictment charging them with the crime of conspiracy presented against them on the 22d day of June, 1920, at an Extraordinary Trial Term of the Supreme Court presided over by Mr. Justice Weeks.

The petition of the relator shows that the Extraordinary Trial Term of the Supreme Court was duly appointed by the Governor to convene on the 11th day of August, 1919; that the Governor duly designated Mr. Justice Weeks

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 184 N.Y.S.-13

to preside thereat, and that pursuant to the order of the state executive a grand jury to serve at said term was duly drawn; that the Governor duly required the Attorney General to attend in person or by deputy to manage and conduct before the court and the grand jury certain proceedings specified in the order of the executive, and that the Attorney General duly appointed William Rand as Special Deputy Attorney General for those purposes; that the day after the indictment was filed a plea of not guilty was interposed for each of the defendants, and leave was given to them to withdraw their plea, and to move or demur, as they might be advised, on or before the 4th day of October; that on the 29th day of June the court took a recess until the 4th of October, at which time it would convene again; that no further step or proceeding, except an application to the same Special Term on the 21st of July, 1920, for an inspection of the minutes of the grand jury, and for a copy thereof, which was granted, was taken by any of the defendants until the 7th of September, 1920, when the indicted defendants gave notice of a motion, returnable on the 13th of that month at Special Term, Part 1, at which Mr. Justice Wagner was presiding, to set aside the indictments, and the grounds upon which it was made were: (1) That it was found without warrant of law; (2) that there was no sufficient legal evidence before the grand jury to support it; (3) that illegal and incompetent evidence of a grossly prejudicial character was submitted to and heard by the grand jury and constitutes the basis for the indictment; (4) that the grand jury was without jurisdiction to entertain the . charge; (5) that a person not within the class mentioned in sections 262264 of the Code of Criminal Procedure was permitted to be present at a session of the grand jury while the charge embraced in the indictment was under consideration; and (6) that their constitutional rights were invaded by the finding of the indictment without proper or sufficient legal evidence to support it and through the admission of illegal and incompetent evidence of a grossly prejudicial character; that on the return of the motion the petitioner duly objected to the power, jurisdiction, and authority of the Special Term to hear the same and requested the court to dismiss the motion without prejudice to the right of the indicted defendants to renew same before the Extraordinary Term, and duly presented and filed an affidavit setting forth the objections, but that over the petitioner's protest and objection the court heard and took the motion under advisement for a decision on the merits, and still retains the same for that purpose; that Mr. Justice Wagner has not been designated to preside at any Extraordinary Trial Term, or at any criminal term, and is without power or jurisdiction to decide the motion, and if the decision shall be adverse to the people, and the court directs the dismissal of the indictment, no appeal will lie from the order, and the people will be irremediably prejudiced thereby; and the petitioner prays that an alternative writ of prohibition be issued commanding Special Term, Part 1. and the justice presiding thereat, and the indicted defendants to desist and refrain from any further proceedings, except to deny the application or to refer the same to the Extraordinary Trial Term.

In opposition to the application for the alternative writ, two affidavits and a copy of the indictment were read in behalf of the defendants. The affidavits, which were uncontroverted, show: That when the indictment was found the defendant Murphy was in San Francisco, attending the Democratic National Convention, and the defendant Baldwin was in Europe. That on the 29th day of June, 1920, the time of the indicted defendants to change their pleas or otherwise move would expire, and they asked for only two weeks' further time, but that the justice presiding at the Extraordinary Trial Term announc ed that he was to sail for Europe on the 10th of July, and that it would be impossible for him to rearrange his plans so that he could dispose of the matter in two weeks from June 29th, and announced that the court would be in recess until the 4th of October, and that the time would be extended until that date, whereupon one of the attorneys for the defendants said: "It is understood, however, if your honor please, so that we may have it plain and explicit, if the defendants desire to take the matter up prior to that time, that they have the right to do so." The court replied: "I understand the defend

(184 N.Y.S.)

ants have the right at any time before the 4th of October to serve motion papers; whether they can bring that motion on before the 4th of October I am not prepared to state." That on the 16th of July, 1920, a notice of the motion for the inspection of the minutes of the grand jury was served, returnable July 21st, at which time the Attorney General objected to the jurisdiction of the court, and Mr. Justice Lydon, who presided, took the motion under advisement and required the submission of briefs, and on the 3d of August, 1920, filed an opinion granting the motion. That the Attorney General appealed from the order and obtained a stay from one of the justices of this court pending the appeal, which, on argument, was vacated on August 16th; but that a copy of the minutes was not furnished to the indicted defendants until the 1st of September, and the notice of motion for the dismissal of the indictments was served on the 7th of September. That on September 15, 1920, when the Special Term overruled objections to the jurisdiction, the relator, on an informal notice to the attorneys of the indicted defendants, applied to a justice of this court for a stay of the hearing at Special Term on the motion to dismiss the indictment, pending an application to this court for an alternative writ of prohibition, and, the justice of this court to whom the application was made having suggested that the request for a stay should be made at Special Term, the attorneys entered into a stipulation under which the motion to dismiss was submitted to the Special Term on an agreement that no order would be entered pending a decision of the application of the Attorney General to this court for an alternative writ.

Those affidavits further show that there are precedents for the exercise of such jurisdiction by the Special Term, in that on the 11th of February, 1920, an application made to the Extraordinary Term of the Supreme Court for the dismissal of an indictment was referred to the justice presiding at Special Term, Part 1, where the motion was heard, and granted; and on the 11th of May, 1920, a like application was made by an indicted defendant at Special Term, Part 1, where it was heard with the consent of the district attorney and granted; and on the 6th of May, 1920, a like application by an indicted defendant was made at Special Term, Part 1, another justice presiding, and heard with the consent of the district attorney, and granted; and on the 14th of May, a like application was heard at Special Term, Part 1, without the consent of the district attorney, and granted; and that none of said justices so entertaining jurisdiction at Special Term were then or theretofore had been holding the Trial Term at which the indictments were presented. These are the only material facts presented in favor or in opposition to the motion, and they are uncontroverted.

Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, SMITH, and GREENBAUM, JJ.

Howard S. Gans, of New York City (William Rand, of New York City, on the brief), for relator.

William M. K. Olcott, of New York City, for defendant Murphy. Martin Conboy, of New York City, for defendant Baldwin. Frank H. Hall, of New York City, for defendant Walden. Phillip J. Britt, of New York City, for defendant McCarthy. George W. Schurman, of New York City, for defendant Corn Products Refining Co.

George Z. Medalie, of New York City, for defendant Smith.

LAUGHLIN, J. [1] Special Term, Part 1, at which the motion was made, was duly appointed to be held at that time and place by the justices of this court, and the justice presiding thereat was duly assigned to hold it; but that would be immaterial, since he was a justice of the Supreme Court. Const. art. 6, § 6; People v. Herrmann, 149 N. Y. 190, 43 N. E. 546; People v. Pustolka, 149 N. Y. 570, 43 N. E. 548.

[2] The application for the alternative writ of prohibition presents but a single point, which is one of law, as to whether the Special Term had jurisdiction to entertain the motion for the dismissal of the indictment; it being now well settled in this jurisdiction that a writ of prohibition may only be issued against a court or other tribunal possessing judicial powers, where it is without jurisdiction, or is proceeding or threatening to proceed in excess of its jurisdiction. Thomson v. Tracy, 60 N. Y. 31; People ex rel. Childs v. Extraordinary Trial Term, 228 N. Y. 463, 127 N. E. 486; People ex rel. Patrick v. Fitzgerald, 73 App. Div. 339, 76 N. Y. Supp. 865; People ex rel. Mayor v. Nichols, 79 N. Y. 582.

[3] The people have no right of appeal from an order dismissing an indictment, regardless of whether the order is made by a court with or without jurisdiction; and the motion, if made at the Extraordinary Trial Term, or at Trial Term, Part 1, appointed for the trial of criminal causes, either of which it is conceded would have jurisdiction, would be heard and decided by a single justice of the Supreme Court, possessing no greater power or authority than the justice against whom the writ is asked, unless it arise from the mere fact of his sitting in a particular part of the Supreme Court.

The Constitution adopted in 1894, by article 6, § 6, abolished Circuit Courts and Courts of Oyer and Terminer, and vested all their jurisdiction in the Supreme Court from and after the 1st day of December, 1895, and section 1 of said article continued the Supreme Court with general jurisdiction, both in law and equity. We need not trace the origin or history of Courts of Oyer and Terminer, or consider the manner in which their jurisdiction had been extended and was exercised at that time. It is sufficient to say that then and theretofore the justices of the Supreme Court exercised criminal jurisdiction by presiding at Courts of Oyer and Terminer. See Laws 1823, p. 211,. § 9; 2 Rev. Stat. p. 207, §§ 40, 42; Constitution 1846, art. 6, § 6; section 7, art. 6, of State Constitution, as amended in 1869. See Appo v. People, 20 N. Y. 531-546.

The Constitution, by article 6, § 2, contemplated the division of the work of the Supreme Court between Special and Trial Terms, and authorized the Appellate Division in each department to fix the times. and places for holding such terms. In amending the section in 1905 the word "Trial" was omitted from the phrase "Special and Trial Terms"; but that was not the object of the amendment, and was doubtless inadvertent. After the adoption of the Constitution of 1894, the Legislature, by chapter 553, § 15, Laws of 1895, amended section 232 of the Code of Civil Procedure, by providing, in conformity with the Constitution, that the justices of the Appellate Division in the First Department should, on or before the 1st day of December in each year, fix a time and place for holding Special and Trial Terms of the Supreme Court in the First Judicial District, and assign justices to hold the same, and should from time to time make such rules as they might deem necessary to regulate the sittings of said various terms. That provision was continued in section 84 of the Judiciary Law (Consol. Laws, c. 30).