Misc.]

Supreme Court, June, 1908.

other ways, the defendants might have committed acts constituting a violation of the statute; and the court held that, inasmuch as many different acts might constitute a violation of the statute under which the indictment was found, the indictment should specify the particular violation the defendant was called upon to meet.

The indictment now under consideration charges the defendant with having feloniously procured a person to do a certain and specific unlawful act, viz.: To vote or offer to vote at an election, when he was not a qualified elector, and, it seems to me, is quite similar to an indictment for subornation of perjury, which is defined, by section 105 of the Penal Code, as follows: "A person who willfully procures or induces another to commit perjury, is guilty of subornation of perjury," and the common form of an indictment for that offense is to charge it in the language of the statute, without pleading the acts constituting the "procuring and inducing."

The further claim is made that these indictments are void for duplicity, in that they allege that the defendant did: 1. Procure, 2. Aid, 3. Assist, 4. Advise, and that the doing of either constitutes a crime, and, hence, that four distinct crimes are alleged.

I think the claim is untenable, because it is the settled law that, where a series of acts is enumerated in a statute as constituting the offense, the enumeration of the entire series in an indictment does not involve duplicity, even though the commission of any one of the series would be sufficient to constitute the crime. People v. Harris, 123 N. Y. 76. And, in the case of Bork v. People, 91 N. Y. 5, the court said: "The indictment charges in the conjunctive that the defendant, with intent to defraud, did feloniously and wrongfully obtain, receive, convert and dispose of the bonds mentioned. The statute is pointed against the criminal misapplication of public funds or property. The offense may be committed in any one of the several ways mentioned, that is, by receiving, obtaining, converting, etc., such funds or property wrongfully, with intent to defraud. It was not necessary to prove that the defendant did all

Supreme Court, June, 1908.

[Vol. 59, Misc.}

the specific acts charged in the indictment to justify a conviction. It was sufficient to prove that he did any one of the acts constituting the offense. Where an offense may be committed by doing any one of several things the indictment may, in a single count, group them together, and charge the defendant to have committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others."

In the case of the People v. Davis, 56 N. Y. 95, where the indictment was for an abortion, the court said: "It will be seen that the count charges the use of different means to perpetrate the crime, the miscarriage of the woman, and in consequence of them all, that the death of the child and the woman were effected, charging all as constituting a single felony. The law sanctions this method of pleading in criminal cases."

To the same effect are the decisions in the People v. Altman, 147 N. Y. 473, and People v. Herlihy, 66 App. Div. 534; 170 N. Y. 584.

My conclusions are that the indictment charges only one crime, and that it sufficiently states the acts constituting that offense. The demurrer is, therefore, overruled.

Demurrer overruled

INDEX.

ACCORD AND SATISFACTION.

1. Executory agreements — Accord without satisfaction.-Specific per-
formance of said contract should not be decreed, since the contract was
unilateral and without consideration and was only an accord and not
a satisfaction and no bar to an action until performance was accepted.
The will containing no statement of what the estate consisted and
there being no evidence that plaintiff at the time she signed the contract
knew or had ever been informed as to what property testator had or
what she was likely to get, the testator, who had not agreed to leave
plaintiff any specific amount of property, was free to transfer for value
the property upon which plaintiff seeks to impress a trust in her favor
and there is nothing to which a decree of specific performance can
attach. Colt v. O'Connor, 83.

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2. Payment of less sum than due - By third person-Judgment
Satisfaction and discharge · ·Proof of payment — Presumption of pay-
ment after five years.— Payment by a third person of a sum less than
the amount due upon a claim, with the understanding that it shall be
in full satisfaction thereof, is a valid accord and satisfaction; and no
action will lie against the debtor to recover the balance. Partridge v.
Moynihan, 234.

3. Payment of sum less than due-Checks and drafts.- Where de-
fendants calculated the amount due plaintiff for services up to October
1st and sent him a check for that sum which stated on its face that it
was in full of account," and plaintiff's letter in reply stated that he re-
tained the check as payment in full of account up to October 1st, but
not in full payment "of your obligations under our agreement," and
expressed a willingness to return the check if it was so intended, and
further stated that he would not cash the check until a certain date,
to which letter defendants did not reply, and plaintiff cashed the check,
there was no accord and satisfaction of plaintiff's entire claim, as, from
the silence of the defendants, it was to be presumed that they assented
to plaintiff's use of the check. Rauh v. Wolf, 419.

ACTIONS.

1. Another action pending When prior proceedings regarded as
pending - After decree and appeal therefrom.- Where there are two
proceedings pending between the same parties for the same object, the
proceeding first commenced is a bar to the later proceeding; and, where
the earlier proceeding has ripened into a judgment amply and favorably
disposing of the rights of the party who seeks a second remedy, the rule
seems more obviously applicable. Nor should the rule be relaxed be-
cause the former judgment has been stayed during the pendency of an
appeal, for to permit the subsequent proceeding to progress would be
a judicial violation of the stay provided for by statute upon the giving
of an undertaking. Matter of Moran, 133.

2. Another action pending — Identity of causes of — Not implied from
identity of subject-matter.-A stipulation that in a prior action between
the same parties the subject-matter of a counterclaim in the present
action was made the subject-matter of complaint, does not necessarily

ACTIONS- Continued.
imply that the cause of action in the prior action was the same as the
cause of action constituting the counterclaim. Rosenblatt v. Lesser, 421.

3. Cause of Character of cause of Legal or equitable — Tar
payer's action against surety of public officer.- A taxpayer cannot main-
tain an action in equity against a public officer and the surety upon
his official bond for an accounting and for judgment against the former
for specified sums of public moneys alleged to have been misappropriated
and against the latter for the penalty of the bond. The taxpayer's right
of action against the surety is a substituted one and must be of the
same form as one brought by the county against the surety on its obliga-
tion. Gray v. Back, 563.

See False Imprisonment.

ADOPTION.

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Of children -Mode and sufficiency of adoption -Sufficiency of pro-
ceedings Collateral attack. In a proceeding for the judicial settle-
ment of administrators' accounts, the Surrogate's Court cannot review
an order of adoption made by a county judge which recites all the
jurisdictional facts required by the Domestic Relations Law. Matter
of Ward, 328.

ADULTERATION.

Actions for penalties. Evidence Admissibility. Admissions by
agent. In an action by the People of the State of New York to recover
a penalty for the sale of adulterated milk, proof of a statement of de-
fendant's son employed by him to sell milk, that a certain can of milk
was not produced by defendant but was purchased of a creamery com-
pany is not competent as against the defendant to establish the facts
stated. People v. Terwilliger, 617.

AGRICULTURAL LAW.

See Adulteration; Penalties.

APPEAL.

Saving questions for review — Objections and exceptions in general
Necessity - Instructions — Assumption of facts. Where the judge
charges the jury that the amount to be allowed the plaintiff in case
they find a verdict for him is a certain sum, together with interest the
amount of which is also stated, and no objection is made to the charge
as to the allowance of interest nor any request in respect thereto, it is
proper to regard the amount as liquidated and to allow interest thereon.
Locomobile Co. v. De Witt, 221.

Saving questions for review - Presentation and reservation of ques-
tions in general-Sustaining judgment on matters not presented to
trial court. Lichtenstein Millinery Co. v. Peck, 193.

See Stay.

ASSOCIATIONS.

Membership-Liability of members for debts - Debts of association
only; Actions against members — Evidence — Sufficiency.— Where, after
the return unsatisfied of an execution issued upon a judgment against
the president of an unincorporated association, the judgment creditor
brings an action against the individual members, he must allege and
prove, not only the original judgment and the issuance and return of
the execution unsatisfied, but also facts sufficient to make out the

ASSOCIATIONS- Continued.

original cause of action against the association. Where the first action
was brought upon a writing signed by the president of the association
as an individual and bearing the seal of the association, the plaintiff,
in the second action, must prove that the signature to the writing was
authorized by the association in order to bind it. Barasch v. Riemer,
453.

ATTORNEY AND CLIENT.

See Attorneys.

ATTORNEYS.

Attorney and client The vocation Privileges, disabilities and lia-
bilities to third persons · Privileges Service of process.- A non-
resident, who voluntarily and in pursuance of his business as an attor
ney at law comes into this State to conduct litigation on behalf of a
client, is not exempt from service of a summons. Kutner v. Hodnett, 21.

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Attorney and client -- The vocation - Admission and nature and ten-
ure of office
Subjection to authority of court The relation with
the client Summary remedies of client - Nature and form of remedy
Jurisdiction of particular courts - Surrogates' Courts. Matter of
Robinson, 323.

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BANKING ASSOCIATIONS.
National Banks In general Power to make contracts To hire
employee for specified period.-A person employed by a national bank
as a solicitor of business is not an officer of the bank, within the mean-
ing of section 5136 of the U. S. Compiled Statutes, whom the board of
directors can dismiss at pleasure. A contract to employ such a solicitor
for a year is valid, and the bank is liable to the employee for his wrong-
ful discharge. Case v. First National Bank, 269.

BANKS.

See Banking Associations.

BETTING AND GAMING.

Particular forms of gambling

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Betting on unknown event Recov
ery back. Where plaintiff bet with another that L had then in his
possession the lease of certain premises and each bettor deposited the
amount of his bet with defendant, the bet to be determined within
five days, the transaction constitutes an act of gambling which is for-
bidden by the Constitution and by the statute. In an action by plain-
tiff, who lost, for money had and received, brought against the defend-
ant after the five days' limit under sections 8 and 9 of the Betting and
Gaming Law, held that, so far as the parties were concerned, the event
was unknown, the winning depended upon chance, and the case was
within the provisions of said sections. Thomson v. Hayes, 425.

BILLS, NOTES AND CHECKS.

See Negotiable Instruments.

BONA FIDE HOLDERS.

See Negotiable Instruments.

BONDS.

Breach - Defenses - Bond to secure performance of building contract
Sale by owner after breach.- Where the owner of certain buildings
sold them to one who agreed to remove them and all debris except the