Fourth Department, March, 1916.

[Vol. 172. adversely to the mayor, upon whom the duty is imposed by law to see that the laws of the State and the ordinances of the city are executed and enforced. (Charter of the City of Rochester [Laws of 1907, chap. 755], § 47.)

It is contended that the revocation was arbitrary, tyrannical and unreasonable, and based upon false information; that while the license was revoked ostensibly because the building was unsafe, it was in fact safe and that the real reason for the revocation was the unfounded contention by the mayor that the picture play was indecent. Blankmeyer swears in his moving affidavit that the play inculcates a great moral lesson, has received the support of the highest medical and sociological men of the country, and that there is an overwhelming demand by the citizens of the city to see the play.

Even though the picture inculcates such a lesson, it does not necessarily follow that the exhibition may not offend against public decency. However desirable it may be to disseminate such knowledge, it may well be doubted that it should be done by means of a picture show in a public playhouse. But for the purposes of this appeal we may assume that the character of the play is unobjectionable, since whatever motive may have prompted the action of the mayor in revoking the license, if the theatre was in fact unsafe and deficient so as to make its use unlawful, it should not be permitted to be used in violation of the law, and the overwhelming demand to see the picture show, if it actually exists, all the more justifies the intervention by the mayor and the police department, because the crowded condition of the theatre would necessarily enhance the danger.

If an actionable wrong has been committed against the plaintiffs they have an adequate remedy at law. The action of the mayor in revoking the license, if reviewable at all, should be reviewed by a direct proceeding and not by collateral attack in such an action as this. (People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187; Southern Leasing Co. v. Ludwig, 217 id. 100.)

It is well settled that equity will not interfere to prevent the enforcement of the criminal law (Delaney v. Flood, 183 N. Y. 323), and if the mayor is right in his contention this injunction

. App. Div.]

First Department, May, 1916.

is of that nature. We think this case is like that of Eden Musee American Co., Ltd., v. Bingham (125 App. Div. 780), and cases there cited, where an injunction was refused, and that should be done here.

The order should be reversed, with ten dollars costs and disbursements, and the application for a temporary injunction denied.

All concurred.

Order reversed, with ten dollars costs and disbursements, and application for temporary injunction denied.

In the Matter of the Transfer Tax upon the Estate of TIRSO MESA Y HERNANDEZ, Deceased.

COMPTROLLER OF THE STATE OF NEW YORK, Appellant; JOSEFINA GARCIA POLA MESA, as Ancillary Guardian of VIOLET HOPE MESA, an Infant, and Others, Respondents.

First Department, May 5, 1916.

Tax-transfer tax on personal property of citizen of foreign country court-jurisdiction of surrogate to admit foreign will to probate - when widow, a citizen of foreign country, may contest transfer tax – distinction between probate and transfer tax proceeding -- contest upon question of taxation does not necessarily attack right of surrogate to admit will to probate - conflict of laws when foreign law governs as to rights of widow in property situated here.

Where a resident of a foreign country dies leaving personal property in the hands of bankers in this State the Surrogate's Court of the county where the property is situated has jurisdiction to admit the decedent's will to probate. The jurisdiction does not depend upon a finding that the decedent was a resident of this State owing to the fact that in order to protect himself during times of war he had taken out naturalization papers.

Where the decedent both before and after his naturalization actually resided in the foreign country, and made only temporary sojourns in this country on his way to and from his residence, so that as a matter of fact he was not a resident of the United States, and where his widow and descendants are subjects of the foreign nation whose courts have decreed that she has certain rights in the decedent's personal property under the foreign law, the property in this State to which she is entitled

First Department, May, 1916.

[Vol. 172. is not subject to a transfer tax, and she is not estopped from contesting the levy of such tax by the fact that she was cited by publication in the probate proceedings in this State and failed to appear and contest the same.

Such contest by the widow, relating only to the assessment of a transfer tax, is not an attack upon the jurisdiction of the Surrogate's Court in admitting the will to probate, for the assessment of the tax is merely incidental with the due administration of the decedent's estate by our court.

As under the law of Cuba, in which country the widow resided, she was entitled to one half ownership in the joint estate of herself and husband, and that fact having been established by a decree of the foreign court, the foreign law is applicable as to personal property situated in this State upon the principle that movables have no situs. Hence, in assessing a transfer tax the widow's half of the joint estate should be deducted.

APPEAL by the Comptroller of the State of New York from an order of the Surrogate's Court of the county of New York, entered in the office of said Surrogate's Court on the 2d day of July, 1915, dismissing an appeal by the State Comptroller from an order of said court assessing the transfer tax herein.

Alexander Otis [Schuyler C. Carlton with him on the brief], for the appellant.

George W. Phillips, Jr. [Charles Stewart Davison with him on the brief], for the respondents.

DOWLING, J.:

Tirso Mesa y Hernandez was born in Cuba on January 28, 1847, and resided continuously there until his marriage on February 24, 1881, to Josefina Garcia Pola, also a native of Cuba. They went to live immediately after their marriage at his sugar plantation "La Vega" at Manguito, Cuba, which remained their sole family home until 1904, when he purchased a town house, No. 2 San Lazaro, Havana, Cuba. He resided in Cuba uninterruptedly from his marriage until the time of his death, save for the years 1895 and 1899, which he spent in Europe because of the Cuban insurrection, and for periods of the other years between 1888 and 1908, when he spent his summers in Europe, with short stays in New York on his way there and on his return. There being no direct passenger

App. Div.]

First Department, May, 1916.

service between Cuba and Europe, he was obliged to come to New York to obtain transportation across the ocean. On these trips his wife accompanied him, as well as other members of his family at times, and when in New York they stopped at hotels, never leasing a house or apartment there. Their longest stay in this country was after they reached Porto Rico on their way to Cuba, when they learned (in 1896) that during their European trip their home had been burned down in the course of the war, whereupon they toured this country as far west as Colorado and then went to Europe, returning to Cuba finally in February, 1900, upon the rebuilding and refurnishing of their home. Decedent's stays in New York annually thereafter lasted from one to five weeks, averaging two weeks. He died on November 29, 1908, at another of his plantations, "Colonia Violet," Aguada de Pasageros, Cuba, leaving him surviving his widow and three children. He was buried from his city home, and the interment took place in his mortuary chapel in the Christobal Colon Cemetery at Havana, he having given instructions that he should be buried there, no matter where he died. He left realty and personalty in Cuba and personalty in the hands of his bankers in New York. His business interests were entirely in Cuba, save for investments of his funds made by his bankers in New York. He belonged to clubs in Havana only, and his sugar plantations, the source of his wealth, were all in Cuba. His children were educated in England and returned to Cuba upon completing their studies. His only given address was in Cuba. There could not have been a clearer case of definite and settled residence than that presented by these and numerous other facts and circumstances set forth in the affidavits in the proceeding and not in any way contradicted. Nor could any question be raised save for the fact that decedent, for the avowed purpose of protecting his property in Cuba from further attack after his home had been destroyed, took steps to become an American citizen. Accordingly, having at some undisclosed date (but at least two years earlier) declared his intention to become a citizen of the United States, he was duly naturalized on June 23, 1900, in the United States District Court for the Southern District of New York, being then on his way to Europe. To support his application,

First Department, May, 1916.

[Vol. 172. he furnished an affidavit that he had emigrated to the United States on July 10, 1888, and had resided continuously within the State of New York since July 10, 1888. An affidavit of a witness was furnished that the applicant had resided continuously within the State of New York since June, 1890. Of course no proof is offered of the fact of such residence in New York, nor in view of the undisputed facts could there be any justification of the statements contained in the affidavits. Decedent never emigrated to this country, never resided continuously here for twelve years nor for ten years, and in fact never resided here at all. But assuming the validity of the naturalization proceedings, as we think we are bound now to do, and that on June 23, 1900, decedent was a citizen of the United States and a resident of the State of New York, the unchallenged facts demonstrate that on his return to Cuba in January, 1901 (he having been in England and on the Continent from July to December, 1900), he resumed his residence in Cuba, established his domicile there, and retained both until the time of his death, at which time he was in law and in fact a resident of Cuba.

It is further urged that while in New York city on December 19, 1906 (where he spent a week on his way from England to Cuba), he executed his last will and testament, wherein he was recited as "a native of Colon, in the Province of Matanzas, in the Island of Cuba, but now a citizen of the United States, residing and domiciled at the City of New York." He named therein four executors and trustees, two of whom were residents of New York city, the others of Havana. The two resident executors petitioned for the probate of the will of decedent, "late of the County of New York, deceased." Citations were prayed to be issued to those interested, including the widow and children, to attend the probate, and January 29, 1909, a decree was made admitting the will to probate, wherein no appearance by any of the parties was recited, but it was set forth that the probate was not contested; that it appeared to the surrogate that the will was duly executed and that the testator was at the time of executing it in all respects competent to make a will and not under restraint. There was no recital in the decree of