placed so much stress on this point, seemingly with the support of an eminent authority, claiming that it confers no discretion on the mayor, but rather stripped him of any judicial power, and makes the granting of such a license a purely ministerial act.

It is contended that the language employed conveys no idea of an act permissive in its nature, but of one which is mandatory; and as if to make this argument more clear it is urged that "shall" in the sentence has the force of "must"; that "all licenses shall be issued by the authority of the mayor," according to the interpretation, means "must be issued" by him. In endeavoring to comprehend the meaning of a sentence, it is not always useful to subject it to grammatical analysis, because frequently looseness of expression may make such analysis negative the obvious meaning. This, however, is not the case here. What is predicated in the sentence, either according to the laws of logic or of grammar, is not said of the mayor, but of "licenses." If it read the mayor "shall" grant licenses, there might be some debatable ground for the claim that "shall" in the context meant "must,” although I would not even then feel constrained for many reasons to adopt such a meaning. But I can see no need to appeal to any interpretation to enforce on any word a different meaning than it is needful for it to bear in order to show what the sentence intends. The sentence provides that licenses (the subject) shall be granted by the authority of the mayor, and taking the rest of the same paragraph, if needed to support the position I contend for, it will appear that licenses again are spoken of "and issued by the bureau for a term," etc.

[2] An equivalent expression, it seems to me, will make manifest the meaning. Change the sentence so that it shall begin with a negative, as: "No licenses shall be granted unless by the authority of the mayor." If this method of testing the meaning is a fair one, it will be seen that the sentence refers to the condition under which licenses are to be issued, and the meaning of the sentence, grammatically considered, is mandatory on licenses, which may only be issued by the authority of the mayor. It is not mandatory on the action of the mayor. The language, therefore, is not effectual to prescribe any mandatory action on the mayor, and whether such action is mandatory or discretionary must be sought, not in the words of the ordinance, which are clear, but in the nature of the act to be performed, and from that may be determined the character of the power conferred on the mayor. The ordinance requires that licenses shall be granted by the mayor. No other officer is empowered to grant them. What is granted is a license. A license is a permission to do something. Its granting involves the giving of permission. Its very meaning involves the exercise of discretion. This, it seems, is determinative of the nature of the act which the mayor has to perform, and this act is discretionary, not mandatory.

It may be contended that the term "license" is an inapt word to characterize the idea intended to be expressed. Then we may turn to the subject in which it is used to test the appositeness of the term. The ordinance says that certain businesses must be duly licensed. Among the various businesses and avocations mentioned are "com

mon shows." Common shows are like the other businesses, and the other businesses are operated under license in the accepted meaning of that term. The courts, for instance, have held that the power of the mayor to license vehicles in general is discretionary, and that the object of the ordinance is not so much to raise a tax as to preserve good order. People v. Mayor, etc., 7 How. Prac. 81. So, the present power being discretionary, the consent granted is properly termed a license. The very idea of a license connotes discretion, and not compulsion, in its granting. The reason for the exercise of the discretion in the mayor is, as the court indicates, "to preserve good order." People ex rel. Van Norden v. Sewer Comm. of Saratoga, 90 App. Div. 555, 86 N. Y. Supp. 445; Cumiskey v. Wurster, 14 App. Div. 556, 43 N. Y. Supp. 1088.

The experience of men in civilized communities throughout the world can be brought to our aid to show that the obvious reason for regulating certain businesses by licensing those who conduct them is. to conserve the public welfare. And the obvious purpose of vesting in some officer the right to grant such persons licenses is to charge such officer with discretion to say whether the licenses in the interest of the public welfare should be given or withheld. I therefore hold that the power of the mayor to grant a license for such a "common show" as a moving picture show is discretionary, and not mandatory, and as a matter of absolute right relator is not entitled to a license.

[3] A conclusion being reached on that question, we come to the less abstract one: Did the mayor validly exercise his discretion in denying relator's application for a license? The papers show remonstrances from parents of school children frequenting the neighborhood of the place for which a license is sought. There are protests from clergymen of every denomination engaged in the neighborhood, from principals and teachers of schools, and from officials of the board of education. These enlightened and benevolent people cannot be suspected of having any pecuniary interest to be served by preventing the granting of the relator's license. They may be regarded, and doubtless were so regarded by the mayor, as conservators of the public welfare, unselfishly interesting themselves in the highest good of the young of the community, to prevent the establishment of allurements. which might work to their detriment. If the mayor had acted arbitrarily or capriciously, and without exercising his discretion, within the meaning of the law, there might be room for action on the part of the court (People ex rel. Lodes v. Board of Health, 189 N. Y. 187 82 N. E. 187, 13 L. R. A. [N. S.] 894; Armstrong v. Murphy, 65 App. Div. 126, 72 N. Y. Supp. 475); but it is quite manifest that this is not the case and he exercised his discretion and unquestionably with ample justification. The mayor is vested with the exercise of this discretionary power by law. With sufficient ground before him, he has exercised validly his discretion. To ask this court to coerce him by its mandate to do otherwise would be tantamount to asking it to substitute without a trace of right its judgment for that of the lawfully constituted authority-the mayor.

Motion denied, with $10 costs.

(77 Misc. Rep. 573.)

CARLETON v. LAWRENCE et al.

(Supreme Court, Special Term, New York County. September 10, 1912.)

1. PLEADING (§ 126*)-DENIAL-SUFFICIENCY.

In an action to foreclose a mortgage, an answer denying that defendant had failed to comply with the conditions of the mortgage by omitting to pay a specified sum, or that that sum, or any sum whatever, remained due and unpaid, is not bad as implying a negative pregnant.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 261-263; Dec. Dig. § 126.*]

2. PLEADING (§ 359*)-ANSWER-MOTION TO STRIKE.

In foreclosure, an answer setting up an agreement for an extension of the debt presents a question of fact, which cannot be determined on motion to strike the answer as a sham, supported by affidavits tending to show that a condition on which an extension was offered was not complied with.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1120-1128; Dec. Dig. § 359.*]

3. PLEADING (§ 360*)-ANSWER-MOTION TO STRIKE-AFFIDAVITS-SCOPE OF CONSIDERATION.

While affidavits may be used to illuminate pleadings on motion to strike an answer as being sham, they cannot be availed of to sustain an order granting the motion, unless they establish without doubt the falsity of the answer.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1129-1146; Dec. Dig. 360.*]

Action by Elizabeth H. Carleton against Lee Gwynn Lawrence and others. On motion to strike defendant Lawrence's answer. Motion denied.

Edmund Coffin, for plaintiff.

George W. Carr, for defendant Lawrence.

DELANY, J. This is a motion to strike out the defendant Lawrence's answer as sham. The plaintiff brings the action to foreclose a mortgage on the property of the defendant, claiming that the principal sum is due and unpaid. This the defendant denies, and in denying uses the language employed by the plaintiff in expressing the alleged default. The defendant denies in very words as follows:

"Defendant denies that this defendant has failed to comply with the conditions of the said bond and mortgage, by omitting to pay the sum of $20,000, the principal, which became due and payable on the 15th day of December, 1911; defendant denies that the said $20,000, the principal, remains due and unpaid; and defendant denies that there is now justly due and payable to the plaintiff in this action upon said bond and mortgage the said principal sum of $20,000, with interest thereon at the rate of 5 per cent. per annum from December 15, 1911, or any sum whatever for either principal or interest."

[1] Plaintiff claims that this is not a sufficient denial, and because of the language employed is a negative pregnant, and therefore does not set forth a meritorious defense. The mere employment of the very words of an allegation in a pleading, with the added denial so expressed, does not in every case and necessarily involve a negative

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

pregnant, and in this case the language sets forth an unqualified denial of the allegation in the complaint alleging the defendant's default. It is not, therefore, justly susceptible of the construction given it by the plaintiff, and as a denial is good. Donovan v. Main, 74 App. Div. 44, 77 N. Y. Supp. 229.

[2] The defendant sets up a separate defense which embodies the contention underlying the controversy. By mesne assignments the plaintiff came into the ownership of this mortgage, and at about the time the principal sum was about to become due there was correspondence between the defendant and the agent of the plaintiff concerning the payment of the principal or the renewal of the mortgage. Plaintiff contends that as a result of this correspondence she caused to be sent to the defendant an agreement to extend the mortgage for three years, which had been executed by her and sent to the defendant through the mails, accompanied by a letter in which the defendant was asked to complete the execution of the instrument and return a duly executed copy to the plaintiff, with the understanding, as plaintiff claims, which was contained in the letter transmitting the agreement, that it was to be delivered only on condition that the defendant pay $100 mortgage tax and the interest about to become due. The defendant Lawrence admitted receiving the agreement in duplicate already executed by plaintiff, but denies receiving any letter imposing any condition upon its delivery. Defendant says she executed the agreement and sent plaintiff's agent a duplicate, which was now executed by both parties, and with it her check, which was accepted, for the interest about to become due, and that she did not hear anything about the delivery of the agreement being conditional for some time. after the occurrence. The affidavits on both sides contain a narration of the circumstances, with reference to many episodes and incidents, and some statements of the subsequent conduct of the parties calculated to bear on the probabilities of the one disputed fact in the case; i. e., whether the letter transmitting the agreement in question accompanied the papers. There is clearly here a question of fact, and, as the action is for the principal sum, the question is whether or not the time of the mortgage was extended three years. Independent of the consideration as to the sufficiency of the denial of the material fact of the complaint, heretofore referred to, this separate defense clearly sets up a state of facts which cannot be determined by the court considering the question merely on affidavits.

[3] And while the affidavits may be used for the purpose of illuminating the pleadings on a motion to strike out an answer as sham, they could not be availed of to sustain the granting of such a motion, unless they established beyond contest the falsehood of the answer. In this case they certainly cannot be said to establish any such fact. Motion denied, with $10 costs.

(77 Misc. Rep. 524.)

Ex parte STEWART.

(Supreme Court, Erie County, at Chambers.

September, 1912.)

1. HABEAS CORPUS (§ 38*)-CUSTODY OF CHILD-RIGHT TO RELIEF.

Domestic Relations Law (Consol. Laws 1909, c. 14) § 70, providing that a husband or wife "an inhabitant of this state," living in a state of separation "without being divorced," who has a minor child, may apply for writ of habeas corpus to have such child brought before the court on return of which the court may award custody of the child, while not applicable to a nonresident petitioner, divorced from the mother of the child, is not the only authority for exercise of the power of the court over custody of minors; but the Supreme Court, under its equity powers, may award custody of a minor on petition of such nonresident divorced father.

[Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 8; Dec. Dig. § 38.*]

2. DIVORCE (§ 332*)—FOREIGN JUDGMENT "FULL FAITH AND CREDIT."

The "full faith and credit" clause of the federal Constitution does not prevent the courts of one state awarding on the then existing conditions the custody of minors, then living in the state with their mother, to their father though the decree of divorce of the court of another state had awarded custody to their mother.

[Ed. Note. For other cases, see Divorce, Cent. Dig. § 843; Dec. Dig. § 332.*

For other definitions, see Words and Phrases, vol. 4, pp. 2998, 2999; vol. 8, p. 7667.]

Application of Donald Stewart for writ of habeas corpus. Motion to dismiss denied.

Reverdy L. Hurd, for relator.

Walter A. Saxon, for respondent.

WHEELER, J. The relator seeks, in this proceeding, to obtain the custody of certain minor children, the issue of the marriage of the relator and the respondent.

It appears by the petition, upon which the writ was issued, that the parties were married and were residents of the state of Wyoming; that the relator is still a resident of that state, but that the respondent now resides in the city of Buffalo, N. Y., and has the custody of the children, the possession of whom the relator asks. It further appears by the petition that on January 19, 1912, the relator obtained a decree of absolute divorce from the defendant in a court of competent jurisdiction of the state of Wyoming. The petition further alleges:

"That it is impossible for the said Ida A. Stewart to give the said children a respectable home, to provide for the education and protect the moral welfare of the children."

Upon the return of the writ of habeas corpus, the defendant appears by counsel, and asks for the dismissal of the writ on the ground that it is insufficient in law to maintain these proceedings, and exhibits what purports to be a copy of the decree of divorce in the Wyoming court, by which the care and custody of the children in question was

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes