ject-matter and embracing new provisions operates to repeal the prior act, although the two acts are not in express terms repugnant. McDermott v. Nassau Electric R. R. Co., 85 Hun, 422, 32 N. Y. Supp. 884; People v. Jaehne, 103 N. Y. 182, 8 N. E. 374. The Legislature of 1892 passed chapter 682 of the Laws of 1892, known as the "Legislative Law," and section 48 (page 1679) thereof provides that the Secretary of State shall send to each newspaper designated by the members of boards of supervisors copies of the laws to be published by such newspapers; and the act expressly repeals chapter 280, p. 305, of the Laws of 1845, and also the several amendments thereto. This act, by its terms, was not to take effect until October 1, 1892. It was approved by the Governor May 18, 1892. On the same day the Governor approved chapter 686 of the Laws of 1892, known as the "County Law," and by section 19 thereof (page 1749) provision was made for the designation of newspapers by members of boards of supervisors. Such county law, by its terms, took effect immediately. On the 21st day of May, 1892three days after the approval of said legislative law and said county law -the Governor approved the act known as "Chapter 715 of the Laws of 1892," which in terms amends the several sections of chapter 280, p. 305, of the Laws of 1845. Section 33 of the statutory construction law (chapter 677, p. 1492, Laws 1892) provides as follows:

"No provision of any chapter of the revision of the general laws, of which this chapter is a part, shall supersede or repeal by implication any law passed at the same session of the Legislature at which any such chapter was enacted or passed after the enactment of any such chapter and before it shall have taken effect; and an amendatory law passed at such session or at any subsequent session begun before any such chapter takes effect shall not be deemed repealed unless specifically designated in the repealing schedule of such chapter."

Chapter 715, p. 1470, of the Laws of 1892, being a later act of the same session of the Legislature at which said legislative law and said. county law were enacted, was not superseded by such general laws, but the provisions thereof superseded the similar provisions in said general laws. Subsequently, and in 1898, chapter 349, p. 1013, of the Laws of that year, was passed, amending section 19 of said county law; and, in 1900, chapter 400 of the Laws of that year was passed, further amending said section 19 of the county law so as to read as in said chapter provided. Section 19 of the county law, as so amended in 1900, is a full, complete, and independent enactment on the subject-matter in the act contained. It treats the designation of newspapers as the act of the members of the board of supervisors in conformity with the plan of said county law and said legislative law, as distinguished from the provisions of the act of 1845 and the amendments thereto. It is a later statute on the same subject-matter as section 3 of said chapter 715, p. 1470, of the Laws of 1892, and it was intended to sum up the whole law on the subject of such designations. It superseded and repealed by implication said section 3 of chapter 715, p. 1470, of the Laws of 1892, and respondents' contention, so far as it is based upon that section, cannot prevail. The designation of the Troy Daily Press by a majority of the Democratic members of the board of supervisors on December 1, 1903, was a valid and legal designation. Said designation being a valid and legal one, and the designation of the Troy Observer, made October 14,

and 122 New York State Reporter

1902, so far as it related to the year 1904, being void, the clerk of the board of supervisors, in forwarding to the Secretary of State a notice that the Troy Observer had been selected by the Democratic members of the board of supervisors to publish the Session Laws and concurrent resolutions of the Legislature, was not in the performance of any duty required of him by statute. On the designation of December 1, 1903, being filed with him on December 3, 1903, it became his duty to forward to the Secretary of State a notice stating the name and address of the newspaper in said designation stated as the newspaper selected by the Democratic members of the board of supervisors for the publication of said Session Laws and resolutions. He did not neglect and refuse to so forward such notice to the Secretary of State by reason of any controversy over the facts, or by reason of any question relating to the Troy Daily Press being a newspaper that had advocated the principles of the Democratic party and that had supported its state and national nominees.

Every fact is conceded by the record. In his letter to the Secretary of State in explanation of his neglect and refusal to send a notice stating that the Troy Daily Press had been selected by the Democratic members of the board of supervisors to publish the Session Laws and concurrent resolutions for the year 1904 the clerk says, "Having certified to the one designated at the time I received your request, I cannot consistently certify to another." When the law requires a public officer to do a specified act in a specified way upon a conceded state of facts, without regard to his own judgment as to the propriety of the act, and with no power to exercise discretion, the duty is ministerial in character, and performance may be compelled by mandamus if there is no other remedy. People ex rel. Harris v. Commissioners, 149 N. Y. 26-31, 43 N. E. 418. The certificate filed by the clerk with the Secretary of State was erroneous and untrue, and not in accordance with the fact, and, as soon as the designation of December 1, 1903, was filed with him on the 3d day of December, 1903, there was a duty imposed upon him by statute which he has failed and neglected to perform, and the order applied for by the relator should have been granted.

The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

SIMMONS v. PEPE et al.

(Supreme Court, Appellate Term. May 5, 1904.)

1. LANDLORD AND TENANT-SUMMARY PROCEEDINGS-JURISDICTION.

Where summary proceedings are instituted against a tenant holding over, the jurisdiction of the justice depends on the relation and situation of the parties on the date of the expiration of the lease, and is not affected by a subsequent change of situation, such as a demolition of the leased building.

2. APPEAL-REVERSAL-RIGHT TO RETRIAL-QUESTION OF Costs.

Where, in summary proceedings against a tenant holding over, a final order for the landlord was reversed on appeal and a new trial was ordered, with "costs to appellant to abide the event," the landlord had a right to insist that the issues be retried, and it was error to dismiss the

cause, though events subsequent to the first trial had rendered it impossible to execute a warrant of possession.

Appeal from Municipal Court, Borough of Manhattan, Second Dis

trict.

Summary proceedings by Charles H. Simmons against Michael E. Pepe and others. From a final order dismissing the proceedings, plaintiff appeals. Reversed.

Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ.

John J. Freschi, for appellant.

Sigmund Wechsler, for respondents.

LEVENTRITT, J. This was the usual statutory proceeding to obtain possession of premises upon the ground that the undertenant held over after the expiration of his term, which it was claimed had expired on June 1, 1903. Issue was joined, and a trial by jury had, resulting in a verdict in favor of the landlord, on which a final order was made awarding him possession of the premises. On appeal this court. reversed the lower court, on the ground that under the facts of the case the tenancy was terminable only on five days' notice, and that this had not been given. The decision of this court was: "Final order reversed, and new trial ordered, with costs to appellant to abide the event." 84 N. Y. Supp. 973. The proceedings having been remitted to the court below for a retrial, a motion was made on behalf of the undertenant to dismiss, on the ground that, the building having been demolished and removed since the previous trial, the court was without jurisdiction to try the issues. The justice granted the motion, and entered a final order of dismissal, with costs of the previous appeal and the dismissal. The landlord appeals.

It was incumbent on the court to retry the issues. There is no question but that the court had jurisdiction when the proceedings were instituted. The issue the justice was directed to retry was whether the landlord was, on the 1st day of June, 1903, entitled to the possession of the premises. With what transpired thereafter the justice had nothing to do. Jurisdiction depends upon the state of things when the action is brought, and cannot be ousted by subsequent events, Koppel v. Heinrichs, 1 Barb. 449. Substantial costs are involved. If it be found that the landlord was entitled to possession as of the 1st day of June, 1903, the costs of the appeal cannot be awarded against him. He has a right to insist that the issues be tried. See Ferris v. Tannebaum (Com. Pl.) 15 N. Y. Supp. 295; Gabay v. Doane, 77 App. Div. 417, 79 N. Y. Supp. 312; Wisner v. Ocumpaugh, 71 N. Y. 113. Certain rights and liabilities flow from the determination of the issue between the parties, and these exist irrespective of the question whether or not the warrant can be executed.

The final order must be reversed, and a new trial ordered, with costs to appellant to abide event. All concur.

and 122 New York State Reporter

SIMMONS v. PEPE et al.

(Supreme Court, Appellate Term. May 5, 1904.)

1. APPEAL-REVERSAL OF JUDGMENT-EFFECT ON COSTS.

The reversal of a final order dismissing summary proceedings carries with it the reversal of a judgment for costs thereafter entered.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Summary proceedings by Charles H. Simmons against Michael E. Pepe and others. From a judgment for costs in favor of defendants, plaintiff appeals. Reversed.

Argued before FREEDMAN, P. J., and LEVENTRITT and GREENBAUM, JJ.

John J. Freschi, for appellant.

Sigmund Wechsler, for respondents.

LEVENTRITT, J. The reversal of the final order dismissing the summary proceedings carries with it the reversal of the judgment for costs thereafter entered.

Judgment reversed, with costs. All concur.

WILSON v. UNITED TRACTION CO.

(Supreme Court, Appellate Division, Third Department. May 20, 1904.) 1. STREET RAILROADS-COLLISION OF CAR WITH VEHICLE-NEGLIGENCE-SUFFICIENCY OF EVIDENCE.

Evidence, in an action against a street railroad for personal injuries resulting from the collision of its car with a vehicle, examined, and held not to show negligence in defendant so as to sustain a verdict for plaintiff.

Appeal from Trial Term, Rensselaer County.

Action by Henry J. Wilson against the United Traction Company. From a judgment in favor of plaintiff and from the denial of a motion for a new trial on the minutes, defendant appeals. Reversed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Patrick C. Dugan, for appellant.

Thomas F. Powers, for respondent.

CHASE, J. The defendant maintains a double-track trolley railroad in Second street, in the city of Troy. During the evening of the 3d day of March, 1902, the plaintiff was voluntarily assisting a driver of an express wagon in delivering express packages. Such driver had two pieces of baggage to deliver at 305 Second street, and then his work in delivering packages for the day would be finished. He drove south on Second street. Plaintiff sat on the seat of the wagon with him. When they arrived at 305 Second street, they found a covered undertaker's wagon standing between the curb and the west track of the

defendant's road. The driver turned his wagon west from the railroad track, immediately south of the undertaker's wagon, so that the horse was facing the south, and the wagon stood from the curb diagonally up the street, and from three to six feet from the undertaker's wagon. The distance from the curb to the west rail was 102 feet. The driver said he did not see a car approaching, and he further says, "I kind of glanced, and kind of thought in my own mind the car would clear me." He took a piece of baggage into the house, and the plaintiff, after standing a short time, pulled and lifted the remaining small piece of baggage to the wing of the wagon, and turned his back to the wagon, intending to take the piece of baggage on his shoulder, and, while so standing, one of the defendant's cars struck a rear wheel of the wagon, without injuring the wagon, but it resulted in some part of the wagon hitting the plaintiff, throwing him upon the sidewalk and causing the injury for which this action is brought. The plaintiff did not pay any particular attention to the position of the wagon, and neither the plaintiff nor the driver of the wagon saw the collision. It was dark, but the street was lighted. The defendant's motorman testified that he was going south on Second street and saw the undertaker's wagon, but that there was nothing else in the street that could be seen until he reached a point about opposite the undertaker's wagon, and that then he saw the express wagon backing off from the curb. He says he approached the undertaker's wagon at about six or seven miles an hour, and that he knew that he should be careful, and had put on his brake. He says that as soon as the express wagon was in sight he stopped his car as quickly as it could be stopped, but not until it had struck the wheel of the wagon as stated.

The car did not strike the undertaker's wagon, and there is no evidence whatever that the express wagon was left standing where the same could be seen by the motorman when he was looking south past the undertaker's wagon, or that the same would have been hit if the horse had not backed the wagon further to the east just as the car approached it. The testimony of the motorman stands wholly uncontradicted. On the evidence before us, the judgment in favor of the plaintiff cannot be sustained.

The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

(94 App. Div. 149.)

CONLEY V. LACKAWANNA IRON & STEEL CO.

(Supreme Court, Appellate Division, Fourth Department. May 10, 1904.)

1. SERVANT'S INJURIES-STATUTES TION OF STATUTE.

- INSUFFICIENCY

SCAFFOLDING-APPLICA

The labor law (Laws 1897, p. 467, c. 415, § 18) provides that a person employing or directing another to perform labor of any kind, in the erection, repairing, or alteration of a house, building, or structure, shall not furnish or erect for the performance of such labor any scaffolding which is unsafe or improper. An upright boiler stood outside of a building, entirely unprotected and unsheltered, and was connected with a boiler inside of the building by a pipe; the boiler on the outside having been