with the State or a municipal corporation, shall require more than eight hours' work for a day's labor is guilty of a misdemeanor, and on conviction therefor shall be punished by a fine of not less than $500 nor more than $1,000 for each offense.

The defendant was indicted for a violation of this statutory provision. A demurrer was interposed to the indictment and sustained by the County Court, and from the judgment entered upon such demurrer an appeal has been taken in behalf of the People.

The decision of the court below was based upon the proposition that the section of the Penal Code upon which the indictment is founded is unconstitutional. This conclusion appears by the opinion of the learned county judge to have been induced largely by the decision of the Court of Appeals in the case of People ex rel. Rodgers v. Coler (166 N. Y. 1), although he concedes that the question considered here was not directly involved there.

It is manifest, however, from the later decision of the Court of Appeals in People ex rel. Lentilhon v. Coler (168 N. Y. 6), that the prevailing opinion in the Rodgers case is not to be deemed in any wise controlling upon the question of the constitutionality of the legislation which prohibits more than eight hours of work in any calendar day under contract with the State or a municipal corporation. That question is yet to be passed upon by the court of last resort.

An

The constitutionality of such legislation, however, has already been considered and sustained in the appellate branch of the Supreme Court. (People v. Warren, 77 Hun, 120.) act to revise the charter of the city of Buffalo, passed in 1891 (Laws of 1891, chap. 105, sec. 504), contained this provision: "Nor shall any man or set of men be employed for more than eight hours in twenty-four consecutive hours except in case of necessity, in which case pay for such labor shall be at the rate of time and one-half for all time in excess of such eight hours." The General Term of the Fifth Department, speaking through

DWIGHT, P. J., unanimously refused to hold that this enactment was violative either of the constitution of the United States (14th amendt., sec. 1), or the constitution of this State (art. 1, sec. 1). The opinion of the presiding justice to this effect was concurred in by Justices LEWIS, HAIGHT and BRADLEY.

It is true that in a habeas corpus proceeding subsequently instituted, the Court of Appeals declared that the amendment of the Buffalo charter there in question was not penal in its character, and could not be made the basis of an indictment of any person for misdemeanor (People ex rel. Warren v. Beck, 144 N. Y. 225), but this decision did not deny or question in any respect the constitutionality of legislation restricting the period of labor upon municipal contracts to a day of eight hours. An instructive reference to this Warren case will be found in the dissenting opinion of PARKER, Ch. J., in People ex rel. Rodgers v. Coler (166 N. Y. 34).

Up to the present time, therefore, we find the fact to be that the only authoritative expression of opinion by the Supreme Court upon the constitutionality of such legislation as is attacked in the case at bar is the unanimous decision of the General Term of the Fifth Department upholding a statute of this character in the case of People v. Warren (supra). We think that this decision should be deemed controlling until the Court of Appeals has passed upon the question.

It follows that the judgment should be reversed and judg ment directed disallowing the demurrer.

All concurred.

Judgment reversed, and judgment directed disallowing the demurrer to the indictment. If the defendant desires to review this decision in the Court of Appeals and will take steps for that purpose at once, all proceedings upon this appeal, except the entry of the order, will be stayed pending the appeal.

Supreme Court-Appellate Division, Fourth Department.

July, 1902.

THE PEOPLE v. HENRY BAHR.

(74 App. Div. 1.)

TRIAL EVIDENCE AS TO GOOD CHARACTER ON TRIAL FOR SODOMY.

The error made in excluding corroborative testimony offered by one charged with sodomy as to his good character after he had denied the commission of the crime is not cured by the concession of the district attorney made after he ascertained that it was an error, that the witnesses offered by the defense as to good character would testify that the general reputation of the defendant is good."

APPEAL by the defendant, Henry Bahr, from a judgment of the Court of General Sessions of the Peace, in and for the city and county of New York, in favor of the plaintiff, entered in the office of the clerk of said court on the 30th day of April, 1901, upon the verdict of a jury convicting him of the crime of attempting sodomy, and also from an order entered in said clerk's office on the 3d day of May, 1901, denying the defendant's motion for a new trial made upon the minutes.

Lewis Stuyvesant Chanler, for the appellant.

Robert C. Taylor, for the respondent.

Per CURIAM: The facts are such as not to justify elaboration and it is sufficient upon this appeal to point out an error committed upon the trial which, we think, requires a reversal of the judgment.

From the nature of the crime charged and the participation of the two witnesses, upon whose testimony the conviction was based, it was of the utmost importance to the rights of the defendant that he should have the full benefit of any testimony he might be able to produce which would bear upon his good VOL. XVI-2

character. He went upon the stand and denied that he had committed the crime of which he was accused, and that he had ever seen or known the witnesses who testified against him. Upon this state of the record the question of defendant's guilt was a close one, and the error in excluding thereafter testimony offered by him as to his character, which evidence was entirely competent, was necessarily harmful. This error was not cured by the concession of the district attorney made after he had ascertained his mistake in having such evidence excluded, that "the witnesses offered by the defense as to good character would testify that the general reputation of the defendant is good." The defendant having the witnesses in court and having placed them upon the stand was entitled to the benefit of their oral testimony.

Judgment accordingly should be reversed and a new trial ordered.

Present-VAN BRUNT, P. J., O'BRIEN, INGRAHAM, McLAUGHLIN and HATCH, JJ.

Judgment reversed, new trial ordered.

Supreme Court-Appellate Division, First Department. July, 1902.

THE EOPLE v. JAMES G. GALLAGHER.

(75 App. Div. 39.)

1. EVIDENCE-MURDER-SELF DEFENSE-CHARACTER OF DECEASED.

Evidence of bad character of deceased for quarrelsomeness and vindictiveness is always competent where self defense is alleged, and an issue with reference thereto is presented by the evidence, and it is immaterial in what manner the attack upon deceased's character is made, the People may meet it by evidence of general reputation as to good character.

2. SAME-INFLAMMATORY DECLARATIONS BY THIRD PARTIES.

Evidence of inflammatory declarations made to the defendant by third parties, to which he made no response, but at once left the speaker, borrowed the revolver and went to the saloon where deceased was, and the talk, the affray and the shooting immediately occurred, was competent as showing motive.

3. TRIAL-TAKING REVOLVER INTO JURY ROOM-CODE CRIM. PROC., SECS. 425, 465.

The fact that the revolver used by accused was through the carelessness of the officers taken into the jury room, they and the jury understanding the talk between the counsel and court to have been that the jury might have the exhibits in the case whenever they asked for them, held not to be such error as to justify setting aside the verdict.

APPEAL by the defendant, James G. Gallagher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 24th day of January, 1902, upon the verdict of a jury convicting him of the crime of manslaughter in the first degree, and also from an order entered in said clerk's office on the 8th day of February, 1902, denying the defendant's motion for a new trial made upon the minutes.

E. C. Aiken, for the appellant.

Harry T. Dayton, for the respondent.

WILLIAMS, J.: The judgment and order appealed from should be affirmed, and the case remitted to Cayuga county, pursuant to section 547 of the Code of Criminal Procedure.

The defendant was indicted for the crime of murder in the first degree, in having caused the death of George Beibert, by shooting him, on the 29th day of July, 1901, at the city of Auburn.

Upon his conviction he was sentenced to Auburn State's Prison for fifteen years.