County Court, Onondaga County, December, 1914. [Vol. 88.

The proof in this case is that the proposed ordinance was filed with the secretary of state more than thirty days before the alleged crime was committed and that it was published in the Tully Times, a newspaper published in said village, for the period of at least twentynine days, and there the evidence ends. No attempt was made to show that the Tully Times was the official village paper, or that it was the only newspaper published in the village, and there was no evidence that copies of the ordinance were ever posted in at least three public places as required by the Village Law.

The burden was on the people to show that all the formalities necessary to make the proposed ordinance effective had been complied with and until publication thereof was made in the manner provided in the Village Law the ordinance was invalid. Kneib v. People, 6 Hun, 238.

This ordinance is defective in another particular. Section 288 of the Highway Law further provides, "that such ordinance, rule or regulation shall fix the punishment for violation thereof, which punishment shall, during the existence of the ordinance, rule or regulation, supersede those specified in subdivision two of section two hundred and ninety of this chapter, but except in cities of the first class shall not exceed the same."

Subdivision 2 of section 290 provides, "That the violation of any of the provisions of section two hundred eighty-seven of this article shall constitute a misdemeanor punishable by a fine of not exceeding one hundred dollars."

This ordinance which we are considering declares that a violation thereof shall be a misdemeanor, but there is nothing in section 288 which authorizes the board of trustees to declare it such nor can it be declared a misdemeanor under subdivision 2 of section

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Supreme Court, December, 1914.

290 for that makes the violation of section 287 a misdemeanor and refers in no way to section 288.

But subdivision 9 of section 290 provides: "Any person violating any of the provisions of any section of this article for which violation no punishment has been specified, shall be guilty of a misdemeanor punishable by a fine of not exceeding twentyfive dollars."

Here was provided the authority under which the board of trustees could declare the violation of the ordinance which they adopted a misdemeanor but at the same time it limits the punishment which can be imposed for a violation to a fine of not exceeding twenty-five dollars. This ordinance fixed the fine for a violation at a sum not over fifty dollars and this defendant was fined and paid fifty dollars which clearly was an illegal sentence and beyond the power of the court to impose.

For the reasons above given, the ordinance is of no force and effect and the conviction of the defendant thereunder must be set aside and the fine remitted. A new trial cannot be granted. There being no legal ordinance there can be no violation.

Judgment reversed and fine remitted.

JOHN DRYDEN, Plaintiff, v. GEORGE E. LATTIMER, Defendant.

(Supreme Court, Erie Special Term, December, 1914.)

Depositions contents of order of examination of defendant in action for alienation of affections of plaintiff's wife-when motion to vacate examination granted.

Where it is apparent that the real purpose of an examination of the defendant in an action for alienation of the affections of plaintiff's wife is to cross-examine him and obtain

Supreme Court, December, 1914.

[Vol. 8

knowledge of what he will testify to on his defense, a motion to vacate the order of examination will be granted though plaintiff states that he in good faith desires such examination to prove his cause of action.

MOTION to vacate order to examine defendant before trial.

John M. Hull, for motion.

Hanford T. Marshall, opposed.

BROWN, J. It does not appear that the plaintiff honestly intends, in good faith, to use defendant's testimony to prove his cause of action. The plaintiff charges defendant with alienating the affections, etc., of plaintiff's wife; the defendant denies, under oath, each circumstance charged as constituting plaintiff's grievance.

For the plaintiff to be permitted to examine defendant before trial, at length and in general, thus committing defendant to a certain version of every detail in advance of the trial, with no knowledge of plaintiff's claim thereto, thus enabling plaintiff to fashion, shape and stage his testimony, etc., on the trial to suit his notion as to how defendant's version should be combated is, in effect, placing a burden on the defendant of establishing his defense before there has been any case proved against him. The law casts no burden on the defendant until there shall be proved against him a cause of action.

The plaintiff's contemplated procedure is so unfair, and gives him such an advantage, that it is believed it ought not, in furtherance of justice, to be granted in such an action as is here presented.

It has been denied in actions for seduction (Wessel

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Supreme Court, December, 1914.

v. Schwarzler, 144 App. Div. 587); and in an action for breach of promise of marriage, id. 589.

While the plaintiff does state that he, in good faith, desires to examine the defendant to establish his cause of action, and intends to use the evidence thus obtained upon the trial for such purpose, yet, from the very nature of the case, it is apparent that the examination is sought for the purpose of cross-examining defendant before trial, and obtaining the advantage of knowing what defendant will testify to in defending himself upon the charge, without disclosing what plaintiff will claim the facts to be.

The motion to vacate order for defendant's examination is granted, with ten dollars costs. Motion granted, with ten dollars costs.

HENRY MCCLEMENT, Plaintiff, v. THE SUPREME COURT OF THE INDEPENDENT ORDER OF FORESTERS, Defendant.

(Supreme Court, Jefferson Equity Term, December, 1914.) Contracts construction and interpretation - matters regulated by law of place of performance.

Associations foreign fraternal insurance associations.- certificate of policy of insurance issued by fraternal association contracts provisions contained in constitution and by-laws prescribed from time to time by supreme court of Independent Order of Foresters who may maintain action in this state to set aside asssessment comity not exercised where foreign laws are contrary to laws of this state.

All matters bearing upon the construction, interpretation and validity of a contract must be determined by the law of the place where it was made, while all matters connected with its performance are regulated by the law of place of performance. A foreign fraternal insurance association upon obtaining permission to execute contracts of insurance in the state of New York submits to our laws and agrees to obey the same and to conform to the public policy of the state.

Supreme Court, December, 1914.

[Vol. 88.

A certificate or policy of insurance issued by the "Independent Order of Foresters," a fraternal association duly organized under the laws of the Dominion of Canada to do an insurance business upon the assessment plan and authorized to do business in this state, delivered in 1893 to a member of a subordinate court of the order at his residence in this state where the final acts requisite to give vitality to the certificate as a contract were performed, in connection with the constitution and by-laws then existing constitutes the contract between the parties, is one made in New York and its construction and the rights of the parties thereunder must be determined by the law of this state.

Under such a contract an amendment of the by-laws without the consent of the member and without special reservation of the right so to do which increases the monthly rate of assessment is in violation of contract rights.

A provision of said certificate that it was issued in consideration inter alia of the provisions of the constitution and by-laws prescribed from time to time by the supreme court of the order, all of which was assented to by the member and made a part of the contract, does not authorize any amendment increasing the rate of assessment as to existing contracts.

A reservation of the right to make amendment to the by-laws has reference only to reasonable amendments relating to the economical administration of the affairs of the society and does not authorize amendments that interfere with or destroy vested contract rights.

The action of the supreme court of the order in 1913 in making an extraordinary assessment and declaring a certain portion thereof a lien on said certificate though authorized by an act of the parliament of the Dominion of Canada impairs the obligation of the contract with the member to whom the certificate was issued and he may maintain an action in this state to set aside such assessment and to remove the declared lien thereof from his certificate.

Comity will not be exercised where foreign laws sought to be enforced are contrary to the laws of this state or would work injustice to our citizens.

ACTION to set aside an extraordinary assessment charged by defendant upon plaintiff's certificate of in