of Special Term affirmed with costs of all parties upon appeal to General Term, and this court to be paid out of the estate-Ella M. Haynes, appellant, v. Catharine M. Sherman and others, respondents. - Judgment reversed, new trial granted, costs to abide eventAnnie Harmickell, as administratrix, respondent, v. Parrot Silver and Copper Company, appellant. Judgments of General and Special Terms reversed and case remitted to the surrogate for further proceedingsMortimer Hendricks, respondent, v. Monetfiore Isaacs, as administratrix, appellant. SECOND DIVISION. cases); Bridget Nichols, as administratrix, etc., respondent, v. Burch and Denslow Manufacturing Company, appellant.- -Order affirmed with costs-People, ex rel. Thomas C. Platt, etc., v. Edward Wemple, as comptroller.Judgment reversed, new trial granted, costs to abide event-People, respondents, v. Balti more and Ohio Railroad Company, appellant.-Judgment affirmed People, respondents, v. Benton Turner, appellant.-Judgment reversed, new trial granted, costs to abide event-People, respondents, v. John Lowe and others, appellants. Judgment affirmed-People, respondents, v. Thomas C. Platt, appellant.Judgment affirmed with costs of all parties to be paid out of the fund Alfred Roe and another, as executors, respondents, v. Geo. T. Vingut, impleaded, etc., appellant.—Judgment reversed, new trial granted, costs to abide event-City of Albany, respondent, v. John W. McNamara, appellant.- -Order affirmed and judgment absolute ordered for the defendant on the stipulation, with costs-Augustus C. Brown, as administrator, appellant, v. Farmers' Loan and Trust Company, respondents.-Order affirmed with costs to the defendant out of the estate-Silas D. Gifford, as assignee, appellant, v. Win. P. O'Connor, as executor, respondent. Judgment reversed and judgment ordered for the defendant with costs-People, respondents v. American Bell Telephone Company, appellant. Judgment reversed, new trial granted, costs to abide event-Henry Hess, as assignee, respondent, v. Nathan Hess, Jr., and others, appellants. Judgment reversed, new trial granted, costs to abide event-Janet Moynahan, an infant, etc., respondent, v. Thomas E. Wheeler and another, appellants.- -Judgment reversed, new trial granted, costs to abide event-Manuel Silberstein, by guardian, respondent, v. Houston, West Street and Pavonia Ferry Railroad Company, appellant.-Judgment of General and Special Terms reversed and judgment ordered for plaintiff on the demurrer with costs in all courts-Walter L. McConkle, as receiver, appellant, v. Morris S. Herrman, respondent. Judgment reversed, new trial granted, costs to abide event-Emily Ford, as administratrix, respondent, v. Lake Shore and Michigan Southern Railway Company, appellants. Judgment of General Term reversed and that of Special Term affirmed with costs-Leland Fairbanks, Jr., appellant, v. Winthrop Sargeant, respondent.- -Order affirmed and judgment absolute ordered for the defendant on the stipulation, with costs-James W. Camp, as executor, appellant, v. Jas. W. Smith, respondent. Order of General Term reversed and judgment of Special Term affirmed with costs-Horace Secor, respondent, v. Mary J. Clark, as executrix, etc., appellant. Order affirmed with costs-George Ellis, appellant, v. Theodore Houston and another, as receivers, respondents. Judgment of General Term and that entered on report of referee reversed and the order of reference vacated and a new trial granted, costs to abide event-Charles F. Brown, as administrator, respondent, v. Simeon Klock, appellant.Order of General Term and of the surrogate reversed, with costs to appellant against executors of Boyle's personalty-In re final judicial settlement of the account of John McComb and another, as executors.-Judgment of General and Special Terms reversed as to assignee and a new trial granted against him with costs to abide the event-National Butchers and Drovers Bank, appellant, v. Charles E. Hubbell, as assignee, etc., respondent. Judgment affirmed with costs to the respondent against appellant Duffy-Frederick K. Van Axte, as executor, respondent, v. Bertha D. Fisher and others, as executors, appellants.-Judg-granted, costs to abide event-Sadie M. Felly, rement reversed, new trial granted, costs to abide event Minerva J. Beaver, as executrix, respondent, v. Charles C. Beaver and another, as administrators, appellants. Judgment of General Term reversed, that Affirmed with costs-Adolph Beinheimer and others, appellants, v. Simon Rindkopf and others, respondents; Wm. H. Seymour and others, appellants, v. Simon Rindkopf and others, respondents; Gilman H. Perkins and others, respondents, v. George R. Smith, personally and as executor, and others, appellants; City of Cohoes, appellant, v. James Morrison, respondent; John McClain, respondent, v. Brooklyn City Railroad Company, appellant; John W. Lovell Company, appellant, v. Henry O. Houghton and others, respondents; James Naser and another, respondents, v. First National Bank of New York, appellant; Ellen O'Donnell, respondent, v. Robert McIntyre, appellant; Cornelius Irvey, respondent, v. Town of Deer Park, appellant; Ellen M. Ten Broeck, respondent, v. Travellers' Insurance Company, appellant; Electrical Supply Company, respondent, v. Jersey City Electric Light Company; George A. Haynes and another, appellants, v. John I. Brooks and another, respondents; Amasa Spring and another, appellants, v. John T. B. Brooks and another, respondents; Lake Shore and Michigan Central Railway Company, respondents, v. Board of Supervisors of Erie county, appellant; Solomon Scheu, respondent, v. Hiram Benedict and another, appellants; Henry Maurer, respondent, v. Charles H. Bliss, appellant; Mary J. Darrow, respondent, v. Family Fund Society, appellant: Anson A. Gibbs, appellant, v. Charles Coykendall, respondent; Patrick McDonald, respondent, v. Long Island Railroad Company, appellant; Isaac Strauss, respondent, v. William Heyenga, appellant; Francis W. Pettingill, respondent, v. City of Yonkers, appellant. Judgment reversed, new trial granted, costs to abide event-Vincent Banker, appellant, v. Neils Poulson and another, respondents.-Judgment reversed, new trial granted, costs to abide event-Andreas W. Ketchum and others, respondents, v. Henry Newcomb and another, appellants.-Judgment reversed, new trial granted, costs to abide event-Caroline C. Blatz, respondent, v. Jacob Rohrbach, appellant.--Judgment affirmed without costs to either party -Theodore Bendell and another, respondents, v. Henry Allen and another, appellants. Judgment affirmed, with costs payable out of the trust fundsJohn Holden, appellant, v. Charles D. Strong, as executor, respondent.- -Order affirmed with costsAaron D. Farmer and others, appellants, v. William P. Shannon, respondent.-Judgment reversed, new trial granted, costs to abide event-Jebial Hymes, appellant, v. William Esty and another, as executors, respondents.Order reversed and judgment entered upon referee's report affirmed with costs--Horatio M. Doty, appellant, v. Lemon Thompson, respondeut. -Judgment reversed as to the defendant Terwilli ger, new trial granted, costs to abide event-Jane M. Reid, respondent, v. Henry S. Terwilliger, appellant. -Judgment affirmed without costs to either partyIsabella K. Arnold and others, appellants, v. George A. Green, respondent.-Judgment reversed, new trial spondent, v. Daniel Doody, appellant.-Judgment reversed, new trial granted, costs to abide eventSamuel Morris, respondent, v. Atlantic Avenue Railroad Company of Brooklyn, appellant. The Albany Law Journal. ALBANY, DECEMBER 7, 1889. CURRENT TOPICS. more judges without too much risk of running counter to public sentiment, and at the same time giving the governor a chance to help his particular pets. And good Mr. Times, that is the way it looks to a great many lawyers much more versed in party ways than ourselves. Now what we would like to see the Times do is to drop the question of authorship, and aid us in denouncing and setting aside the fraud. It has not as yet a word to say on that score. THE Albany Times asserts in effectendament of the Its only purpose in the matter, thus far son. Well, ling joint resolution for the Constitution, to which we recently alluded, was the work of Republican legislators. It may be so. We to ward off attack from its idol, governor. do not care. We strike at anybody who made the botch, and we strike at anybody who introduced or favored a measure designed to confirm and perpetuate the ill-advised and tricky measure which foisted upon the people a permanent court by appointment. The Times seems pleased with our views in so far as they reflect upon its political opponents. But the Times is not pleased with our bringing the hallowed name of its pet hero, the governor, into our indictment, and wants to know what warrant we have for so doing, and inquires if we do not know that the concurrent resolution was none of the governor's business. Certainly, we know that. That is just the one thing that he cannot veto. Now as to our warrant- we do not know that the governor had any thing to do with it. And probably the Times does We are not prejudiced against the governor, and not know that he had not. We do not know who have more than once found occasion to admire his invented this scheme to cheat the people, and so we extradition decisions. He has just made an interstruck all around, and denounced it, whoever might esting decision in the case of Hope. The return of have fathered it, "be he judge, or governor, or Hope was demanded by the State of Delaware on plain citizen." There is a great deal of talk and the ground that he was an escaped convict. His suspicion and surmise about the matter among law- counsel raised the point that there is no authority yers. Some suspect the governor had a hand in it, for extradition in such a case, and that extradition and others suspect that some of the judges had can only be had upon a charge of which there has something to do with it. It is said that Judge Ra-been no conviction. The governor makes short pallo devised the scheme, and if he did, it would work of this argument, observing: "No narrow or have been quite natural for him to consult the gov-strained construction should be placed upon the ernor of his own political faith about it. Whatever may be the truth, the governor's conduct has not tended to free him from the suspicion of being concerned in it, or at least of using it to grind his own axes. Certainly he availed himself of the opportunity to appoint as one of the judges a very intimate friend and active partisan of his, passing over another Democrat, a prominent and honored resident of this city, who is unquestionably much better fitted for the post, by age, experience and acquirements, and to whom most people who do not know the governor very well inclined to suppose that the appointment would fall. If anybody should object that Judge Learned was too old for the place, we reply that such an argument clearly shows the hollowness of the pretense that the new contrivance was to be a mere temporary commission, for undoubtedly Judge Learned could have sat but a few years, on account of his age. Now we are extremely ignorant and innocent of party politics - praised be the Lord! but it looks to us as if this entire scheme, from first to last, was a piece of jugglery, in which, likely enough, one party was just as deep a contrivance to make places for some VOL. 40 No. 22. as the other word 'charged' as used in the Constitution and in the Federal statute. It is broad enough to include all classes of persons duly accused of crime. A person can be said to be charged' with crime as well after his conviction as before. The conviction simply establishes the charge conclusively. An unsatisfied judgment of conviction still constitutes a 'charge' within the true intent and meaning of the Constitution. An indictment or affidavit merely presents the charge, while a conviction proves it. To warrant extradition the statute requires an indictment or affidavit charging a crime, but if, in addition thereto, there is also presented a record of conviction, the case is not weakened but rather strengthened." To this he cites, Dolan's Case, 101 Mass. 219, and Hallan v. Hopkins, 21 Kans. 638. It seems manifest that one is "charged " with crime although he is in prison for it. But counsel also raised the point "that Hope did not voluntarily come into this State, but was brought here in 1887, from the State of California, on a requisition from the governor of this State to answer a charge of crime made against him, and that since then he has been incarcerated in Auburn Prison; and it appears that upon form extradition system, and of the recommendations of the convention of governors assembled through the efforts of Governor Hill and his extradition secretary, Mr. Goodwin Brown? Our laws sorely need harmonizing on this point. The Harvard Law Review cites a dictum to the his term of imprisonment expiring, he has been arrested under or by virtue of the requisition in question from the governor of Delaware. It is conceded that such arrest was made before a reasonable time and opportunity had been given him, after his release from Auburn, to return to California, where he claims he desired and intended to go." To this claim the governor assents, observing: "Upon prin- effect that ice in an ice-house may be a fixture to a ciple, I think it is clear that where a prisoner is hotel. Judge Holt says this in Hill v. Munday, brought into this State from another State or country upon extradition proceedings, he cannot prop-The Review remarks that "Some one may feel called Kentucky Court of Appeals, 11 S. W. Rep. 956. erly be tried upon any other charge than that menon to tell the truth to the Court of Appeals of Kentioned in the requisition, and that upon his acquittal, or if convicted, then upon the expiration of his im-tucky, even as Gil Blas felt moved to speak to the fictitious Archbishop of Granada." (Why "fictiprisonment, he is entitled to a reasonable time in tious?") And in a foot-note the Review intimates which to return to the other State or country from that we are the " one". "See 40 Alb. L. J. 102: which he was thus forcibly taken, before he can be 'We wish that something could be done to infuse a again arrested. The recent decision of the Supreme little common sense,' etc." If Judge Holt ever meant ques Court of the United States (U. S. v. Rauscher, 119 reviewed and considered in the able opinion of the any thing of the kind, such an "infusion" would certainly be useful. If ice is a fixture because indispensable to the use of a hotel, so are water and gas, and even whisky and turkeys and flour, and any on hand must pass with the premises. Ice is not usually regarded as fixed property. The only place where it seems to stay is the sidewalk, where it is thrown by the cartman, and awaits the housemaid's pleasure. But all the court meant to decide evidently was, that on a lease of a hotel property, including an ice-house, there being no right of entry reserved, the ice passes. NOTES OF CASES. N Blood Balm Co. v. Cooper, Supreme Court of question which must be regarded as essentially Georgia, October 14, 1889, it was held that Federal in its character, it should be respected and followed, not only by all Federal courts, but by all where the proprietor of a patent medicine places on State courts as well. The cases which have held the bottle containing it a label recommending it for heretofore, either expressly or impliedly, a contrary certain diseases, and directing the size of the dose doctrine and there are many (Adriance v. Lagrave, to be taken, and it is shown that the dose contained 59 N. Y. 110; U. S. v. Lawrence, 13 Blatchf. 295; such a quantity of a certain poison as to injure Hackney v. Welsh, 107 Ind. 253; Williams v. Bacon, plaintiff when he took it, the proprietor is liable for 10 Wend. 636) should no longer be regarded as the damage, whether he sold the medicine to plaingood authority upon this particular question. This tiff directly or to a druggist to be resold, from is the view taken in the recent cases of State v. Hall, whom plaintiff purchased it. The court said: "We 40 Kans. 338 (decided in July, 1888), and in Matter are not aware of any decision of this court upon of Reinitz, 23 Abb. N. C. 69 (decided in June, 1889), this question. Indeed there is none; and we have in each of which the Rauscher Case is followed. It searched carefully, not only the authorities cited by is believed that the decision in the Rauscher Case counsel in this case, but others, and we find no will be cheerfully acquiesced in by the courts and question like the one which arises in this record deofficials of all the States, not solely because it is the termined by any court. In the case of Thomas v. interpretation of the law from our highest court, Winchester, 6 N. Y. 397; 57 Am. Dec. 455; 1 but also because it will be found upon reflection to Thomp. Neg. 224, referred to by counsel in this case, be entirely correct in principle. It is in harmony the question decided was that a dealer in drugs and with the views expressed by the best text-writers medicines, who carelessly labels a deadly poison as upon extradition. It is in accordance with common a harmless medicine, and sends it so labelled into sense. It will render extradition proceedings en- market, is liable to all persons who, without tirely consistent, and prevent unseemly conflicts of fault on their part, are injured by using it jurisdiction." And to this view also we assent, but as such medicine in consequence of the false label. it seems the police do not, for they re-arrested Hope, This comes nearer the present case than any we have after the promulgation of the governor's decision, been able to find, and it is relied upon by both parwithout giving him an hour to return to California. ties as an authority; and in the notes thereto by The matter may be set straight on habeas corpus. Mr. Freeman, in the American Decisions, the cases But what has come of the attempt to obtain a uni- relied upon by counsel in this case are embraced and They expect to derive a They are therefore liable cret, as to their contents. In Cummings v. Wingo, South Carolina Supreme Court, October 19, 1889, it was held that the South Carolina statute and rule of court, requiring nonresidents to give security for costs, are not unconstitutional as abridging the privileges and immunities of citizens of other States, their provisions relating only to residence, and not to citizenship. The court said: "Although orders requiring security for costs have been very frequently passed, we have not been cited to a single decision as to the constitutional question now presented, nor have we been able to find one. Indeed, it is a little singular that, except Bomar's Case, 9 S. E. Rep. 512, we have been able to find but one single case (Furnan v. Harman, 2 McCord, 442) in which the question has even been suggested; and in that case the court, resting its decision upon another ground, makes no allusion to the constitutional question. While this fact affords strong evidence of the constitutionality of the law in question, yet it is not conclusive, and therefore we must look further into the question. The appellant rests his position upon the second section of the fourth article of the Constitution of the United States, which reads as follows: 'The citizens of each State shall be entitled to all privileges and immunities of the citizens in the sev referred to, and to some extent considered. It is not denied by counsel in this case that the doctrine cited (Thomas v. Winchester) is sound and correct law, but the present case differs from that case, and mainly in this: There the drug sold was a deadly poison, and the wrong consisted in putting a label upon the same which indicated that it was a harmless medicine; whereas in this case the medicine sold was not a deadly poison, and no label was put upon it which was calculated to deceive any one in this respect. But accompanying this medicine was a prescription of the proprietor, stating the quantity to be taken; and the evidence tended to show that the quantity thus prescribed contained iodide of potash to such an extent as, when taken by the plaintiff, produced the injury and damage complained of. The liability of the plaintiff in error to the person injured arises, not by contract, but for a wrong committed by the proprietor in the prescription and direction as to the dose that should be taken. We can see no difference whether the medicine was directly sold to the defendant in error by the proprietor or by an intermediate party to whom the proprietor had sold it in the first instance for the purpose of being sold again. It was put upon the market by the proprietor, not alone for the use of druggists to whom they might sell it, but to be used by the public in general, who might need the same for the cure of certain diseases, for which the proprietor set forth in his label the same was adapted. This was the same thing as if the proprietor himself had sold this medicine to the defendant in error, with his instructions and directions as to how the same should be taken. In all the cases cited by the plaintiff in error there is no case in which the proprietor prescribed the doses and quantities to be taken of the medicine sold by him. If this medicine contained the iodide of potassium in sufficient quantity to produce the injurious consequences complained of to the defendant in error, and if the same were administered to him either by himself or any other person, as prescribed in the label accompanying the medicine, he could, in our judgment, recover for any injury he may have sustained on account of the poisonous effect thereof. It was a wrong on the part of the propri-eral States;' and the argument is that any provision etor to extend to the public generally an invitation to take the medicine in quantities sufficient to injure and damage persons who might take it. A medicine which is known to the public as being dangerous and poisonous if taken in large quantities may be sold by the proprietor to druggists and others, and if any person, without more, should purchase and take the same so as to cause injury to himself, the proprietor would not be liable. But if the contents of a medicine are concealed from the public generally, and the medicine is prepared by one who knows its contents, and he sells the same, recommending it for certain diseases, and prescribing the mode in which it shall be taken, and injury is thereby sustained by the person taking the same, the proprietor would be liable for the damage thus sustained. These proprietary or patent medicines are secret, or intended by the proprietors to be se which exacts of a citizen of another State, as a con- As was ton in Corfield v. Coryell, 4 Wash. C. C. 371: 'We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental,' rights belonging to the individual as a citizen of the State. Now, the provisions of our statute and rule of court make no discrimination against citizens of another State, as such. They do not deny to the citizens of another State the right to maintain an action in the courts of this State upon the same terms as a citizen of this State may do, because he is a citizen of another State. The provisions relate only to residence, and not to citizenship, which are entirely different things. As was said by Mr. Justice Grier in Parker v. Overman, 18 How. 137: Citizenship and residence are not synonymous terms,' or as was said by Mr. Justice Harlan in Robertson v. Cease, 97 U. S. 648: Citizenship and residence, as often declared by this court, are not synonymous terms.' To same effect see Grace v. Insurance Co., 109 U. S. 278, and Menard v. Goggan, 121 id. 253. Having thus shown that citizenship and residence are regarded by the tribunal of last resort, in all questions involving the construction of the Constitution of the United States, as distinct and different things, it does not seem to us that the provisions of our statute and rule of court in respect to the requirement of security for costs in certain cases are in conflict with the clause of the Constitution above quoted. The security for costs is required of a party, not because he is a citizen of another State, but only because he is a non-resident of this State. The requirement would apply as well to a citizen of this State, who was a non-resident at the time, as it would to a citizen of another State not residing here; and so, on the other hand, if a citizen of another State is residing here at the time, he could no more be required to enter security for costs than a citizen of this State under like circumstances." PEOPLE, EX REL. BOCKES, V. WEMPLE. Laws of New York, 1870, chapter 408, section 9, fixes the compensation of Supreme Court justices at $6,000,"except that they shall receive in addition" $5 per day for expenses while absent from their homes, etc. Laws of 1872, chapter 541, section 1, provides that they should receive $1,200 in lieu of and in full of all expenses now allowed by law." The Constitution, article 6, section 13, as amended in 1880, provided that the judges should retire at seventy years of age, and that "the compensation of every justice whose term of office shall be abridged *** shall be continued during the remainder of the term for which he was elected." The effect of the substitution of $1,200 in lieu of $5 per day was to increase the amount received by the judges. Held, that the additional allowance was a part of the compensation, and a judge retiring at seventy years of age was entitled to the $7,200 during the remainder of his term. APPEAL from Supreme Court, General Terni, Third Department. Application by Augustus Bockes for mandamus to Edward Wemple, comptroller, to compel respondent to pay a certain claim to relator. The writ was denied, the order affirmed at General Term, and relator appeals. Esek Cowen, for appellant. L. S. Westbrook, for respondent. GRAY, J. The relator held the office of justice of the Supreme Court of this State from January 1, 1860, continuously, until January 1, 1888, by virtue of three elections. His last election to the office was for the term of fourteen years, commencing January 1, 1876. That term was abridged by two years by the relator attaining the age of seventy, in 1887. During the last years of his incumbency of the office he was paid the sum of $7,200 per annum, in quarter-yearly payments, but since its termination the State authorities have declined to pay him otherwise than at the rate of $6,000 per annum. The relator has sought, through these proceedings, to establish his right to the receipt of that full measure of compensation of which he was in receipt while in office. The determination of the issue lies in the proper construction to be given to those laws of the State which provide as to the compensation of Supreme Court justices, and to that portion of the Constitution of the State which continues their compensation to them upon the abridgment of their term of office by limitation of age. Chapter 408 of the Laws of 1870, in its ninth section, provides as follows, viz. "The justices of the Supreme Court shall receive an annual compensation of $6,000 each, payable quarterly, in lieu of all other compensation, except that they shall receive, in addition to such stated salaries, a per diem allowance of $5 per day for their reasonable expenses, when absent from their homes, and engaged in holding any General or Special Terms, Circuit Court, or Court of Oyer and Terminer, or in attending any convention, as hereinafter provided, to revise the rules of said court." The Legislature, in 1872 (by chapter 541 of the Laws of that year, section 1), in part abrogated these provisions and enacted as follows, viz.: The said justices of the Supreme Court, except in the first judicial district, shall receive the sum of $1,200 annually, from the 1st day of January, 1872, in lieu of and in full of all expenses now allowed by law. This subdivision shall not increase the pay of any judge except the justices of the Supreme Court." These provisions of the law being in force, with re spect to the compensation of Supreme Court justices, in the year 1880, the thirteenth section of article 6 of the Constitution was amended. The section as amended, so far as is material to our consideration here, reads as follows, viz.: "The official terms of the said justices * * who shall be elected after the adoption of this article shall be fourteen years from and including the first day of January next after their election. But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be seventy years of age. The compensation of every * * * justice of the Supreme Court whose term of office shall be abridged pursuant to this provision, and who shall have served as such *justice ten years or more, shall be continued during the remainder of the term for which he was elected." * * * The one question therefore which is to be answered is: What is the "compensation" which to be "continued to the justice, in the event mentioned in the Constitution? The comptroller argues that it must be understood to be that portion of the justice's compensation which represented an award for services, and not that additional portion which originated in a grant of an additional sum annually in lieu of expenses theretofore allowed by law. This argument is based in part upon a reasoning upon the supposed intention of the Legislature, and in part upon the phraseology of the yearly appropriation acts of that body, which fixed the amount to be paid for "salaries and expenses." In so far as the position of the comptroller rests upon subsequent legislative enactments as fur |