Fourth Department, May, 1921. [Vol. 197 Legis lation operative throughout the extent of its territory. lation by the States need not be identical with that of Congress. It cannot authorize that which is forbidden by Congress. But the States need not denounce every act committed within their boundaries which is included within the inhibition of the Volstead Act, nor provide the same penalties therefor. It is conceivable also that a State may forbid under penalty acts not prohibited by the act of Congress. The concurrent power of the States may differ in means adopted provided it is directed to the enforcement of the amendment. Legislation by the several States appropriately designed to enforce the absolute prohibition declared by the Eighteenth Amendment is not void or inoperative simply because Congress, in performance of the duty cast upon it by that amendment, has defined and prohibited beverages and has established regulations and penalties concerning them. State statutes, rationally adapted to putting into execution the inexorable mandate against the sale of intoxicating liquors for beverage contained in section 1 of the amendment by different definitions, regulations and penalties from those contained in the Volstead Act and not in conflict with the terms of the Volstead Act, but in harmony therewith, are valid. Existing laws of that character are not suspended or superseded by the act of Congress. The fact that Congress has enacted legislation covering in general the field of national prohibition does not exclude the operation of appropriate State legislation directed to the enforcement by different means of prohibition within the territory of the State." The following cases enunciate the same principle: Ex parte Guerra Vt.; 110 Atl. Rep. 224); Jones v. Hicks (150 Ga. 657; 104 S. E. Rep. 771); Scroggs v. State (150 Ga. 753; 105 S. E. Rep. 363); State v. Fore (180 N. C. 744; 105 S. E. Rep. 334); City of Shreveport v. Marx (— La.; 86 So. Rep. 602); State ex rel. Stranahan v. District Court (58 Mont. 684; 194 Pac. Rep. 308); Allen v. Commonwealth (— Va. 105 S. E. Rep. 589); Ex parte Crookshank (269 Fed. Rep. 980); Franklin v. State (88 Tex. Crim. 342; 227 S. W. Rep. 486); Woods v. City of Seattle (270 Fed. Rep. 315); United States v. Peterson (268 id. 864); Ex parte Ramsey (265 id. 950). All of those cases grew out of the construction of laws existing at the time of the enactment of the Volstead Act. The following App. Div. 155] Fourth Department, May, 1921. cases in this State hold that the amendment of the Liquor Tax Law, passed after the enactment of the Volstead Act, being chapter 911 of the Laws of 1920, the statute in question in this case, is enforcible and that a violation thereof constitutes a crime: People v. Foley (113 Misc. Rep. 244); People v. Mason (186 N. Y. Supp. 215); Ex parte Finegan (270 Fed. Rep. 665). The only case which I have been able to find which seems to be in conflict is the case of State v. Green (La. ; 86 So. Rep. 919) where the court said: "Act 66 of 1902,* by prohibiting the selling of intoxicating liquors without a license, implies the right of any and every person to obtain the license. Such a law, if enacted subsequent to the adoption of the Eighteenth Amendment, would not be appropriate legislation.' It would be absolutely violative of the amendment. The statute is altogether inconsistent with the constitutional amendment, and is therefore without effect." That case seems to be in conflict with the case of City of Shreveport v. Marx (supra), previously decided by the same court, and it is also in conflict with all other cases upon the question. In those cases it was held that the fact that the State statutes made it a crime to traffic in liquor, unless a license had been procured as provided in the State statutes, did not make the statutes void and unenforcible because in conflict with the Eighteenth Amendment or the Volstead Act. It was held that such parts of the statutes as provided for the sale of intoxicating liquors upon procuring a license were in conflict with the Eighteenth Amendment and the Volstead Act and were, therefore, void and unenforcible, but that the parts of such statutes as made it a crime to traffic in such liquors remained in full force and operation. In the case of Commonwealth v. Nickerson (supra) the court said: "The general purpose of R. L. c. 100, is prohibition, except as local option manifested by annual votes in the several municipalities effectuated by the granting of licenses through municipal boards may result in a regulated method of sales by licensees. The burden of proving such authorization rests upon a defendant, however. * See La. R. S. § 910, as amd. by La. Acts of 1902, No. 66, p. 93; 1 Wolff Const. & Stat. La. 444.- [REP. Fourth Department, May, 1921. [Vol. 197 Upon a complaint for an illegal sale the commonwealth makes out its case by showing a sale of intoxicating liquor. The defendant, in order to escape conviction, must prove his license. R. L. c. 219, § 7; Commonwealth v. Regan, 182 Mass. 22, 25; 64 N. E. 407. As matter of statutory construction, the prohibition is general, the license is exceptional. The latter is dependent upon the efficacy of a valid local vote and a genuine license. This being the purpose and plan of the statute, its prohibitory features are not so dependent upon those respecting license as to be swept away when those as to license are stricken down by the Eighteenth Amendment. The general rule of the statute continues to prevail, even though the law has so changed that the special defense can no longer be made out. It follows that R. L. c. 100, has not been abrogated by the Eighteenth Amendment and the Volstead Act. The sections under which the complaint was framed against the defendant are still operative and efficacious." That opinion referred to a State statute which was in force when the Eighteenth Amendment was adopted, but I think the same principle applies to the statute in question in the case at bar. That statute prohibits the traffic in intoxicating liquors unless a liquor tax is paid and a certificate issued. The provision permitting such traffic upon payment of a tax is void, but the provision making it a crime to traffic therein remains in force. It is a familiar principle that a statute may be unconstitutional in part and valid in part, if the parts which are void can be separated from those which are valid. (Presser v. Illinois, 116 U. S. 252; People ex rel. Devery v. Coler, 173 N. Y. 103.) I think that the statute in question can be so separated, and that the parts which prohibit traffic in liquor are valid and that a violation thereof constitutes a crime. Section 40 of said act (Laws of 1920, chap. 911) provides: "§ 40. If any section or provision of this act shall be held to be invalid, it is hereby provided that all other provisions of this act which are not expressly held to be invalid shall continue in full force and effect." The fact that different penalties are provided in the State statute and in the Volstead Act does not make the State statute void. (Commonwealth v. Nickerson, supra; Ex parte Crookshank, supra.) App. Div. 163] First Department, May, 1921. If, however, the amendment of the Liquor Tax Law in question should be held to be unconstitutional and void, still the defendant was legally convicted. He was charged in the indictment with a violation of the Liquor Tax Law. The Liquor Tax Law of the State was amended by the amendment in question in 1920. If that amendment is unconstitutional and void, the Liquor Tax Law as it stood before that amendment is in force and operation, and the defendant was properly convicted thereunder. (People ex rel. Farrington v. Mensching, 187 N. Y. 8.) The indictment was properly found against the defendant the court had authority to permit the amendment substituting the name of the defendant in place of the fictitious name contained in the indictment. The judgment of conviction should be affirmed. All concur. Judgment of conviction affirmed. FRANKLIN KNITTING MILLS, Respondent, v. ISIDOR H. MEYERSON, Appellant. First Department, May 27, 1921. - - bill of Pleadings bill of particulars - action on promissory notes counterclaim on breach of contract of sale of goods particulars stating that orders for goods were in writing referring to oral orders admissible. - letters In an action on promissory notes the defendant interposed a counterclaim based on a breach of contract of the sale of goods and in a bill of particulars furnished by him stated that the orders for the goods were in writing. Held, that it was error to refuse to admit in evidence letters written by the defendant to the plaintiff which referred to oral orders given theretofore, and which were repeated in the letters, and to refuse to permit the defendant to testify to the oral orders on the ground that he was limited by his bill of particulars to written orders. APPEAL by the defendant, Isidor H. Meyerson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of April, 1920, on the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 21st day of April, 1920, denying defendant's motion for a new trial made upon the minutes. [Vol. 197 First Department, May, 1921. Charles Goldzier of counsel [House, Grossman & Vorhaus, attorneys], for the appellant. Otto C. Sommerich of counsel [Maxwell C. Katz with him on the brief], for the respondent. PAGE, J.: The action was brought to recover upon four certain promissory notes made by the defendant in favor of the plaintiff for $1,800, each payable in four months. The answer contains a defense and counterclaim alleging that the Smart Set Specialty Clothing Co., Inc., was organized and incorporated by the plaintiff for the express purpose of manufacturing and selling garments to be made solely out of the goods manufactured by the plaintiff. The defendant entered into a contract with the plaintiff to purchase from it forty shares of the stock of the said Smart Set Specialty Clothing Co., Inc., of the par value of $50 each, for the sum of $10,000. The defendant then owned ten shares and thus secured the entire capital stock of the said corporation. The defendant agreed to pay for said stock the sum of $9,000, to be paid $1,000 in cash and $9,000 by giving five promissory notes for $1,800 each. The plaintiff further agreed in said contract to extend to the said corporation sixty days' credit in amount not to exceed $2,500, this provision to continue during the life of the contract so that the said corporation should at all times have standing a credit for merchandise of $2,500. The plaintiff also agreed as soon as possible after receiving orders, and in the usual course of business, to deliver to the said corporation on account of said credit knit cloth manufactured by the party of the first part of the quality, shades and prices therein specifically set out. The answer further alleges that the plaintiff has failed, refused and neglected to furnish to the Smart Set Specialty Clothing Co., Inc., the goods mentioned in said contract, although the same have been duly ordered and demanded, and that such goods as the plaintiff did furnish were of an inferior grade and defective both in workmanship and quality of material, and that the notes mentioned in the complaint were the notes mentioned in the contract. Damages are alleged in the sum of $50,000. There are other allegations of the answer that would be appropriate to a defense of fraud, |