People v. Lytle

March 18, 1895, when the charge against defendant was being investigated by the grand jury, and when the indictment was found in Monroe county, the duly-qualified district attorney of that county was absent from the state. He had two assistant district attorneys and a managing clerk, duly and legally appointed, qualified, and acting as such, all of whom were in attendance at ■the term of oyer and terminer where the indictment was found, discharging their respective duties as such assistants and clerk. An application was duly made to the court at that term for the appointment of a special district attorney, by reason of the illness and consequent absence from the state of the duly-qualified district attorney. Thereupon an order was duly made by that court appointing an attorney and counselor at law, residing in and practicing his profession in the county of Monroe, as special district attorney during the absence of the district attorney. The defendant claims that this order of the court was unauthorized, and that the person so appointed had no power thereunder to perform the duties of the district attorney, and that his appearance before the grand jury during the investigation of the charges against this defendant was unauthorized, and that the defendant has not been lawfully indicted and that, therefore, the judgment and orders appealed from should be reversed.

“When any district attorney shall fail to attend any of the courts above specified, it shall be the duty of such court to appoint some proper person, being an attorney or counselor at law, to transact the business of the district attorney during the sitting of the court; and the person so appointed shall be entitled to the same compensation for the services he shall perform that the district attorney would have been entitled to for the like services, and his account shall be audited and paid in the same manner.”

By chapter 470, Laws 1847, entitled “An act to amend the act entitled ‘An act in relation to the judiciary,’ ” passed in the same year, it was provided, in section 33, as follows:

“When the office of district attorney of any county shall be vacant at the term of any court of oyer and terminer or court of sessions of any county, or the district attorney shall for any cause he unable to attend the term of any such court,' the members of -the court, except the justice of the supreme court, may designate some suitable person to act as district attorney at such term of the court; and the person so designated shall have and exercise the same powers and discharge the same duties as district attorneys elected in the manner provided by law, >and shall be entitled to such compensation, to be paid out of the treasury of the county, as the hoard of supervisors shall allow.”

No repealing clause is. contained in this statute.

By chapter 123, Laws 1883, entitled “An act to amend section ninety of article seven, title two, chapter twelve, part one, of the Revised Statutes, in relation to the appointment of special district attorneys in certain cases,” section 90 “is amended SO' as to read as follows: ”

‘“Whenever there is a vacancy, or the district attorney of ; any county and his assistant, if he has one, shall not be in at-Í tendance at a term of any court of record, which he is by law

Thereupon, by -the same act. section 33 of the Laws of 1847, above quoted, was repealed; but its provisions, to an extent substantially re-enacted, with other provisions added, and the whole was incorporated into -and made a part 'of the Revised Statutes. Section 90, as originally enacted, w-as thereby abrogated, and the provisions of the act of 1883 were substituted in its place and stead, by express legislative enactment. Consequently, the act of 1883 wais embodied into and became a constituent part of chapter 12 of part 1 -of the Revised Statutes. At this time the greater part -of the judiciary act of 1847 had been repealed. Properly, the amendment of 1883 should have been incorporated into the Code of Criminal Procedure. Upon the enactment of the “County Law” (chapter 686, Laws 1892), all of said chapter 12 was repealed, as appears by “Schedule of Laws Repealed; ” but the -act of 1883 is not mentioned in that schedule, no.r d-oe-s it elsewhere appear to -have been expressly repealed.

Counsel for appellant contends that, since the act of 1883 was made a constituent part of said c-bapt-er 12, it became abrogated by the repeal of that chapter; that the repeal of the whole chapter carried with it all the amendatory statutes. On the other hand, it is argued that the act of 1883 stands as an independent enactment, and since the matter of.it is in no way provided for in the county law, nor any provision made

By chapter 289, Laws 1889, it is provided that the commissioners shall, in their report to the legislature, “suggest such omissions, contradictions and other imperfections as may appear in the existing statutes so proposed to be revised and consolidated, with recommendations for the amendment thereof, and they shall provide for the specific repeal of the statutes which would be suspended or covered by the general statute® so proposed by said commissioners.” 3 Rev. St. (9th Ed.), ■§ 2757. Evidently, it was the intention of the legislature to impose upon the commissioners the duty of providing for the specific repeal of laws which were intended to be abrogated and superseded by the provisions of the revised or consolidated laws proposed to the legislature for enactment.

A careful examination of the “Schedule of Laws Repealed,” following the various general statutes revised and consolidated, shows that it has been the endeavor of the commissioners to obey this injunction, and to fulfill the duty imposed upon them by the legislature, to the very letter; for it appears, from a thorough inspection and comparison of these schedules with the sections of the Revised Statutes as amended, that the purpose of the revisers has been, not only to repeal the particular chapter or article of the Revised Statutes, but also to specify each and every statute that may have been passed amending any particular section or sections thereof. Of course, the omission to specify in the schedule a particular statute, whether original or amendatory, might not save it from repeal, where the revision contains provisions upon the same subject; hut Where the amendatory statute omitted from the schedule

In the report of the commissioners of statutory revision for the year 1890, and transmitted to the legislature of 1891, they state that they present therewith drafts of amendments to the three Codes, “containing provisions in the statutes consolidated and repealed which belong more properly in such Codes than in the new chapters of the general laws; ” that “following each new chapter reported, except the amendments to the Code, is an appendix containing the laws revised by such chapter, and proposed to he repealed by it, with cross references, so that any person with the report before him can compare each section of the revision with the corresponding provisions of existing laws.”

In their report for the year 1891, made to the legislature of 1892, the “County Law,” among many other general laws revised, was presented for adoption. In the report it is stated that “various amendments to the Codes were also reported, for the purpose of including therein all provisions in -the general laws revised which relate to practice and proceedings in

“When the district attorney or his assistant shall not be in attendance at any term of any court of record he is required to attend, or shall be unable or disqualified from acting, or there is a vacancy in such office, the court may, by au order entered in its minutes, appoint some attorney to act as special district attorney during such, absence, inability, disqualification or vacancy.”

Following the proposed Code amendments (at page 1403) is a proposed “Act to repeal certain acts and parts of acts.” “The following acts and parts of acts are hereby repealed, to take effect May 1st, 1892.” Here follows a “Schedule of Laws Repealed.” Chapter 12 of part 1 of the Revised Statutes is not mentioned in this schedule, but chapter 123 of the Laws of 1883' is specified, with a statement that it is to be found in the Code of Criminal Procedure, erroneously stated as section 222,—it should have been section 250.

Immediately folio-wing this repealing statute comes the county law, with the “Reviser’s Note,” prefixed thereto (page 1409), in which they state that:

“The following draft of a county law is designed mainly to-take the place of the following statutes: Chapter twelve, part 1, of the Revised Statutes, entitled ‘Of the Powers, Duties and Privileges of Counties and -of Certain County Officers,’ and

They also state that:

“The classification of the laws outlined in the last annual report of the commission has been adhered to, and such provisions of these statutes as more properly belong to either of the Codes have been omitted from this chapter. * * * Many of the laws comprised in the Schedule of Laws to be repealed by this chapter will be found in the Appendix) at pages 1508 to 1653. There is also a reference under most of the sections of the revision to the pages of the eighth edition of the Bevised Statutes, and to the chapters of the Session Laws, where the present statutes will be found, which are to be superseded by the revision.”

Turning to the proposed county law (sections 200-204), we find that it was not intended to supersede sections 89-92 of the Bevised Statutes by any new enactment; hut in the annexed schedule of laws to be repealed is specified the whole of said chapter 12, pant 1, of the Bevised Statutes, though 'the amendatory act of 1883 (chapter 123) is not mentioned. Page 1512a of Beport. Turn now to “Appendix F, Laws to be Eepealed by the County Law.” Page 1508. At page 1574 will be found ■said sections 89, 91,92, and section 90, as amended by the Laws of 1883, copied verbatim from page 1066 of the eighth edition of the Bevised Statutes. This would seem to indicate an intention to repeal, by 'the county law, section 90 as amended; hut it is also indicated that its provisions were to be incorporated * into the “Code of Civil (Criminal) Procedure.”

It was proposed that the county law should take effect May 1, 1892, but it was enacted to take effect May 12th. If the legislature had enacted the proposed Code 'amendments, the question here presented would not have arisen, but it failed to carry into effect the intentions of the commissioners. It will "be noticed that the proposed amendments to the Code of Criminal Procedure were intended by the commissioners to take effect October 1, 1892, but the repealing act connected with it was to take effect long before that time, viz., May 1, 1892. If ■this had been done, then section 90, as amended by the Laws of

We are of the opinion that the power of the court to appoint! ' a special district attorney in case of the absence or disqualifies-' , tlom of the district attorney or of a vacancy in such office is , untrammeled by any other conditions whatever. Keeping in view the prior statutes upon the subject and the nature, character, and purpose of the act of 1883, we think this is the true interpretation of the langua ge employed, and effectuates the legislative intention. It will he noticed that the statute authorizes the designation of a person to act as a special district attorney,, but does not in terms authorize a special assistant district attorney. Now, the district attorney being absent, why may not the court appoint a special district attorney to act in his place and stead, as it had heretofore exercised such power? Because, it is argued, he has an assistant, and therefore the. office of district attorney cannot be temporarily filled while the assistant is in attendance and ready, but perhaps not able, to discharge all the duties of the office at that term of the court We do not think that wias the legislative intention. An assistant may be a young and inexperienced lawyer, and may be lacking the requisite ability to conduct successfully or properly the important prosecutions that may be presented. It would

The cases are numerous where the courts have construed the word “and” as “or,” and vice versa, when the reason and spirit of the law required or justified it. “The popular use of ‘or’ and And’ is so loose and so frequently inaccurate that it has infected statutory enactments. While they are not treated as interchangeable and should be followed when their accurate reading does not render the -sense dubious, their strict meaning is more readily departed from than that of any other words, and one read in place of the other, in deference to the meaning of the context.” Suth. St. Const., 252 et seq. “And” is often used interchangeably with “or,” the meaning being determined by the context. The grammatical sense of words is not adhered to in the construction of either a deed or a will, where a contrary intent'is apparent; and, to give effect to the intention of -the parties, the word “and” may be read “or.” Jackson v. Topping, 1 Wend. 388 . This principle, that “and” and “or” are convertible as the sense and intent may require, applies to their use in statutes. Townsend v. Read, 10 C. B. (N. S.) 308; Boyles v. McMurphy, 55 Ill. 236 ; Eisfeld v. Kenworth, 50 Iowa, 389 ; Simpson v. Morris, 3 Yeates, 104 ; People v. Sweetser, 1 Dak. 308 ; 46 N. W. 452 ; Porter v. State, 58 Ala. 66 ; Granite Co. v. Devereux, 72 Me. 422 . And this is the rule even in a criminal statute. State v. Myers, 10 Iowa, 448 ; Miller v. State, 3 Ohio St. 476 ; Streeter v. People, 69 Ill. 595 . Observe, also, in the "statute under consideration, that the personal pronouns “he” and “his” are used in the singular;

We are of the opinion that the court had full power and authority to make the appointment which it made, and that the person so designated was duly authorized to appear before the grand jury, and perform the duties which were performed by Mm.

We have examined the other -objections made by defendant to the legality of the judgment and- orders appealed from, but discover no error calling for their reversal. The evidence was sufficient to require a submission of the case to the jury, and the charge of the learned court explicitly confined the jury to the consideration of one count in the indictment; and these instructions were fully comprehended and followed by the jury,; as appears from the verdict rendered. That verdict was fully' justified by the evidence, and -should not be disturbed. Code Or. Proc., § 684. ¡

The judgment and orders appealed from should he affirmed, | and the judgment of the appellate court entered in the judgment roll, and a certified copy of the entry forthwith remitted to the clerk of Monroe county, pursuant to- -sections 547 and 548, Code Cr. Proc.

WARD, J., concurs in result.

Undoubtedly, it was assumed in the oyer and terminer, on the 4th -day -of March, 1895, that, by reason of the sickness and inability to attend and perform the duties required of the district attorney at that term of court, the court had authority to make the order appearing in the record, to wit:. “Ordered that Daniel W. Forsyth, Esq., an attorney residing in said county, be, and he hereby is, appointed special district attorney to act as such during this term.” Apparently, the court of sessions, when it denied the motion to dismiss the indictment, assumed that the act of 1883 was not repealed. However, for the reasons stated in the opinion of Follett, J., it is quite evident that the court of sessions wa,s in error. Notwithstanding that error, it was contended before us that the court -of oyer -and terminer h'ad

From an inspection of the record before us, we find that the defendant had a trial in the sessions, and that no error was committed in the'progress of the trial, and that the conviction is in accordance with the evidence given tending to establish the guilt of the defendant.

Section 684 of the, Code of Criminal Procedure provides as follows:

“Neither a departure from the form or mode prescribed by this Code, in respect to any pleadings or proceedings, nor any error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in-respect to a substantial right.”

Inasmuch as there is no proof that the special 'appointee “was present with the grand jury during -the expression of their opinions or the giving of their votes upon any matter,” in violation of section 264 of the Code of Criminal Procedure, and in view of section 684 of the Code of Criminal Procedure, already

In Cox v. People, 80 N. Y. 500 , it was held: ' 1

' “Mere irregularities in the drawing of grand and petit jurors do not furnish a ground for reversing a conviction, unless it appears that they operated to the injury or prejudice of the prisoner.” :

In the course of the opinion delivered in People v. Betrea, supra, Andrews, J., said:

“We are of opinion that no constitutional right of the defendant was invaded by holding him to answer to the indictment. The grand jury, although not selected in pursuance of a valid law, were selected under color of law and semblance of legal authority. The defendant, in fact, enjoyed all the protection which he would have had if the jurors had been selected and drawn pursuant to the general statutes. Nothing could well he more unsubstantial than the alleged right asserted by the defendant under the circumstances of the case. He was entitled to have an indictment found by a grand jury before being put upon his trial. An indictment Was found by a body drawn, summoned, and sworn as a grand jury, before a competent court, and composed of good and lawful men. This, we think, fulfilled the constitutional guaranty. The jury which found the indictment was a de facto jury, selected and organized under the forms of law. The defect in its constitution, owing to the invalidity of the law of 1881, affected no substantial right of the defendant. We confine our decision upon this'point to the case presented by this record, and hold that an indictment found by a jury of good and lawful men selected and drawn as a grand jury under color of law, and recognized by the court and -sworn as a grand jury, is a good indictment by a grand jury, within the sen-se of the constitution, although the law under which the selection was made is void”

“It is the duty of an appellate court to give, in a criminal action, with reason and discretion, full force and effect to the provision of the said Code (section 542) declaring that, 'after hearing the appeal, the court must give judgment, without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties,’ and the one which provides (section 684) that 'neither a departure from the form or mode prescribed by this Code in respect to any pleadings or proceedings, nor any error or mistake therein, renders it invalid unless it has actually prejudiced the defendant.’ ”

In the course of the opinion delivered in Dolan v. People, 64 N. Y. 485 , it was said:

“It is not apparent how the alleged irregularities harmed the defendant, and it is certain that they had no relation whatever to the question, of his guilt or innocence of the crime charged. Under such circumstances, the indictment should be upheld, unless the facts pleaded point out some vital error.”

That sentiment was approved in People v. Petrea, 30 Hun, 108 , in the opinion delivered by Bockes, J.

Following the statutes and the authorities cited, and because it does not appear that the defendant was prejudiced by the irregularities,complained of, and it is inferable, very clearly, that he was not prejudiced thereby, I am led to vote for affirmance of the conviction and judgment and orders.

March 18, 1895, the defendant, then fourteen years of age, was indicted, at a court of oyer and terminer held in and for the county of Monroe, for—First, burglary in the third degree (section 498, Pen. Code); second, grand larceny in the second degree - (section 534, id.); third, . receiving stolen property (section 550, id.). This indictment was sent to the court of sessions of Monroe county, there to be disposed of. March 30, 1895, a motion was made by the defendant to set aside the indictment, on the ground1 that Daniel W. Forsyth assumed to act as special district attorney for the¡ county when the charge against the defendant was investí

Section 313 of the Code of Criminal Procedure provides:

“Sec. 313. The indictment must be set aside by the court in which the defendant is arraigned, and upon his motion, in either of the following cases: (1) * * * (2) When a person has been permitted to be present during the session of the grand jury, while the charge embraced in the indictment was under consideration, except as provided in sections 262, 263, and 264.” "

Sections 262, 263, and 264 provide that the district attorney may appear before the grand jury for the purpose of examining the witnesses, giving legal advice and information. Section 276 provides that indictments shall he signed by the district attorney.

Daniel W. Forsyth was' present during the session of the grand jury while the charge embraced in the indictment was under consideration, and, unless he was legally appointed and acting as special district attorney, Ms presence was in violation of the statute, and the command of the Code is that in such case the indictment “must be set aside.” When this indictment was found, George D. Forsyth was the district attorney of Monroe county, duly elected as such at the general election held in 1892, and Howard H. Widener was the first, and Stephen J. Warren was the second, assistant district attorney of said county, duly appointed and acting as such, pursuant to section 203, chapter 18, Gen. Laws (The County Law), as amended by chapter 70 of the Laws of 1893 (1 Rev. St., 9th ei„ p. 648). Both of the assistant district attorneys were present at the

By section 90, tit. 2, chap. 12, pt. 1, Bev. St., it was provided:

. “Sec. 90. When any district attorney shall fail to attend any of the courts above specified, it shall be the duty of such court to appoint some proper person, being an attorney or counselor at law, to transact the business of the district attorney during the sitting of the court; and the person so appointed shall be entitled t the same compensation for the services he shall perform, that the district attorney would have been entitled to, for the like services, and his account shall be audited and paid in the same manner.”

This section was taken from section 1, chap. 254, Laws 1824 (repealed by Laws 1828, 2d meeting, p. 57, chap. 21); and it remained the law until 1847, when section 33, chap. 470, Laws 1847, was nassed, which provided:

“Sec. 33. When the office of district attorney of any county shall be vacant at the term of any court of oyer and terminer, or court of sessions of any county, or the district attorney shall from any cause be unable to attend the term of any such court, the members of the court, except the justice of the supreme court, may designate some suitable person to act as district attorney at such term of the court; and the person so designated shall have and exercise the same powers and discharge the same duties as district attorneys elected in the manner provided by law, and shall be entitled to such compensation,

This statute was substituted for section 90 of the Revised Statutes, above quoted, to meet the provision of section 8 of article 6 of the constitution of 1847, which provided:

“They (judges of the court of appeals and justices of the supreme court) shall not exercise any power of appointment to public office.”

This constitutional provision was abrogated by the amendments to the constitution ratified in 1869, since which time justices of the supreme court may and have exercised the power to appoint public officers when authorized by the legislature.

Prior to June 21, 1882, courts of oyer and terminer, except those in the city and county of New York, were held by a justice of the supreme court, and by county judges and justices of sessions; but, by section 1 of chapter 360 of the Laws of 1882, section 23 of the Oode of Criminal Procedure, was amended, and provides that courts of oyer and terminer shall be held by a justice of the supreme court without an associate. County judges and justices of sessions being no longer members of courts of oyer and terminer, the power of a justice of the supreme court presiding at an oyer and terminer to appoint a special district attorney was doubted, and additional legislation was deemed necessary, the result of which was the passage of chapter 123 of the Laws of 1883, which provided:

“Section 1. Section ninety of article seven, title two, chapter twelve, part one of the Revised Statutes, is amended so as to read as follows: ‘Sec. 90. Whenever there is any vacancy or the district attorney of any county and his assistant, if he has one, shall not be in attendance at a term of any court of record, which he is by law required to attend, or shall be unable by sickness, or by being disqualified from acting in a particular case, to discharge his duties at any such term, the court may, by an order entered in its minutes, appoint some attorney at law residing in the county, to act as special district attorney during the absence,-inability or disqualification of the district attorney and his assistant'; but such appointment shall not be

“See. 2. Section thirty-three of chapter four hundred and seventy of the Laws of eighteen hundred and forty-seven is hereby repealed.

“Sec. 3. This act shall take effect immediately.”

It will be observed that by this statute two things are accomplished: (1) Section 90 of the Revised Statutes, as passed in 1828, was abrogated, and a new section substituted in its stead, which became section 90 of chapter 12 of part 1 <of the Revised Statutes of this state; (2) section 33 -of chapter 470 of the Laws of 1847 was repealed.

By chapter 686 of the Laws of 1892 (chapter 18 of the General Laws, “The County Law;” 1 Rev. St., 9th ed., 593, 660), the twelfth chapter of the first part of the Revised Statutes was repealed, but section 2 of chapter 123 of the Laws of 1883, being no part of the Revised Statutes, was not repealed; so that since the passage of the county law, in 1892, no statute has existed authorizing courts to appoint special district attorneys.

The argument that the commission of statutory revision and the legislature -could not have intended to repeal a statute so important and necessary, without providing a substitute therefor, is entitled to no w-eight. It has been repealed in express terms, and that seems to me to be an end of the matter. Courts do not presume that the legislature is ignorant of the statutes relating to subjects upon which it undertakes to legislate." Cox v. Mayor, etc., 103 N. Y. 519 , 524; 3 St. Rep. 672 . Nor can they hold that a statute which has been expressly repealed is not repealed because it ought not to have been. Thi-s would be usurping a power which the courts have not and should not possess. So far as I know, it has never been do-ubted or argued that the repeal of a chapter,- title, or section of the Revised Statutes, did not carry down with it all previous amendments

If it could be held that section 90 of chapter 12 of the Revised Statutes as amended in 1883, is still in force, I should be unable to hold that a court could appoint a special district attorney unless the district attorney of the county and his assistant, if he has one, should not be in attendance at the term. Under section 90, of the Revised Statutes, above quoted, the district attorney of the county and his assistant, if he has one, must both be absent or disqualified, and in such a case “the court may * * * appoint some attorney at law * * * to act as special district attorney during the absence, inability or disqualification of the distridt attorney and his assistant.”’ The statute is not a disjunctive, but-it is a conjunctive, one, and all the conditions must exist before an appointment can be made under it. The word “and,” in a statute, may be construed to mean “or,” for the purpose of carrying into effect the clear intent of the legislature; and for the same purpose “or” may be construed to mean “and,” but never for the purpose of thwarting the intention of the legislature, nor for giving a meaning to the statute not clearly intended. The plain intent of the legislature was to authorize the court to appoint a special district attorney in case there was no officer present having authority to take charge of the criminal cases pending in the court, and so prevent a failure of justice. There was no such exigency at the oyer and terminer at which this indictment was found. Two assistant district attorneys were present, and were qualified to act in this case.

It is suggested that 'the oyer and terminer had inherent power to- appoint a special district attorney, and Dukes v. State, 11 Ind. 557 , is cited in support of the suggestion. The appointment considered in that case was made pursuant to section 5 of chapter 3 of the Revised Statutes of the State of Indiana (2 Rev. St. 1852, p. 386; 2 Rev. St. 1870, p. 430; 2 Rev.

It is also suggested, though I think the point is not much relied on, that Daniel W. Forsyth was a “de facto district attorney.” A de facto officer is one who, by virtue of an election or appointment claimed to be valid, enters upon and assumes to discharge the duties of a public office; but the term does not denote one who assumes to perform, for a brief period, some of the duties of an office. Daniel W. Forsyth did not claim to- be the de jure or de facto district attorney, for that office was filled.

In the opinion of the learned presiding justice it is said, in effect, that assuming that there was no statutory or inherent power in the court to make this appointment, and that Daniel W. Forsyth had no authority to appear before the grand jury, examine the witness, draft and authenticate this indictment, no harm was done to the defendant, and the judgment of conviction should be sustained, under sections 542 and 648 of the ■Code of Criminal Procedure, which are as follows:

“Sec. 542. After hearing the appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

These sections are not designed to cure errors affecting the jurisdiction of courts to try a defendant for a felony. Before a person can be legally tried for a felony under the constitution, a legal indictment must be found in the manner prescribed by the statute; and the section of the Code quoted at the beginning of the opinion provides that, in case an unauthorized person is present when the grand jury is investigating the charge embraced in the indictment, it must be set aside for this cause -on the motion of the defendant, which, to my mind, makes' it clear that it was not intended that sections 542 and 684 should cure this error.

The judgment should be reversed, and the defendant discharged.

NOTE ON “REPEAL OF REPEALING ACT.”

When act, which amended another and re-enacts so as to read as prescribed therein, is itself repealed, the original act is not revived, hut both fall by repeal of later act. People v. Wilmerding, 136 N. Y. 363 ; 49 S. R. 651; rev’g 42 S. R. 139.

Repeal of repealing act restores original act. Chard v. Holt, 136 N. Y. 30 ; 49 S. R. 26; rev’g 45 id. 52 ; Ottman & Co. v. Hoffman, 7 Misc. 714 ; 58 S. R. 320.