in which shall be set forth at length the reasons for such order, directing that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting." By section 10 a child, when adopted, shall take the name of the person adopting, and sustain to each other the legal relation of parent and child, except as to inheritance, etc.

It is not claimed but that all the above provisions were complied with. The child was illegitimate. The mother, with the child, and the defendant, with his wife, all appeared before the county judge, and executed the consents. They were each examined separately by the judge. The defendant executed the agreement, and thereupon the county judge made his order, which recites all these facts, and assigns as reasons for making the order that "the said infant, nor its mother, have any property of any kind to support themselves, and the father of said child being absent, and his residence unknown, and the said Jacob Bloedel and his wife being reputable citizens, and owning property, and having no living male child, are desirous of adopting said infant." This order is attached to the consents and agreement, and is entitled at chambers, before the Hon. WILLIAM W. HAMMOND, county judge of Erie county, and is also signed by said judge. It thus affirmatively appears that every essential requisite of the act upon which the judicial determination is based was fully and accurately complied with. The other requirements of this act, so far as applicable here, relate rather to matters of form than to matters of substance. The essential things are the qualifications of the persons, their consents, and agreement. These existing, confer jurisdiction upon the judge to make the order. The error which is urged here is the failure of the judge to subscribe his name to the consents of the defendant and his wife, and to the agreement of the defendant, as required by section 13, in which it is provided that nothing contained in this act shall prevent proof of adoption by any method heretofore practiced in the state from being received in evidence, nor from having the effect of an adoption; that no child shall hereafter be adopted except under the provision of this act, nor shall any child be deprived of the rights of adoption except by a proceeding for that purpose, with like sanction and consent as required for an act of adoption under section 8; "and any agreement and consent in respect to such adoption, or abrogation thereof, hereafter to be made, shall be in writing, signed by such county judge or a judge of the supreme court;" and the same, or a duplicate, may be filed with and recorded by the county clerk, and may be used as evidence in all legal proceedings.

This section, so far as material here, relates to the manner in which the adoption shall be evidenced, and not to the facts upon which the order is to be made. There are no words in the act which in terms avoids the consent and agreement unless signed by the county judge. Such signing forms no part of the judicial determination or evidence upon which to base it. It is a mere ministerial act evidencing the consents and agreement. It has been quite frequently held that a precise compliance with the terms of such an act is not essential to the validity of the proceedings unless so declared by the statute. Dwar. St. 222, n 29, (Amer. Ed.;) Rawson v. Van Riper, 1 Thomp. & C. 370; Hall v. Tuttle, 6 Hill, 38; Stephens v. Santee, 49 N. Y. 35. If, however, the signature of the judge is essential, the statute is silent as to where it shall appear. He is to sign the consents and agreement; but where such consents and agreement all appear upon one paper, including the order, I think it sufficient if the name of the judge appears thereon in any place. The signature of the judge in fact does appear upon the adoption papers produced in three places,-once after the consent of the mother, again at the time of the order, and finally at its foot; and the whole are attached together. A holding that the signature should be attached at the foot of each consent would sacrifice form to substance, and defeat the intent of the act. But if we assume that it was essential to sign at the foot of each consent, in order to bind

the parties, I am of opinion that such failure to sign does not render the adoption papers absolutely void, but voidable only in respect to such persons as are not bound by reason of the failure to sign. In Potter v. Greene, 39 Hun, 72, an infant was indentured as an apprentice. The statute required to have indorsed upon the indenture, in order to be valid against the infant, a certificate by a justice of the peace, in a case where the father, being alive, had abandoned and neglected to support his family, and the consent to such indenture was signed by the mother, as the statute authorized in such case. The certificate of the justice was omitted. The court held that the indenture was voidable only as to the infant, and valid as to the mother. Id. 75-78. In People v. Weissenbach, 60 N. Y. 385, the court of appeals affirmed an order overruling a demurrer to a return, and dismissing a writ of habeas corpus sued out by the father of a child, who had been indentured as an apprentice, the court holding that, although the law required the infant to execute the indentures, which had not been done, yet the parent, having consented to the indentures, could not avail himself of the defect. In re MeDowle, 8 Johns. 253. In the present case the mother executed the consent, and the judge signed his name at the foot thereof. She was the person in whom the act vested authority to consent and execute valid adoption papers. She cannot now be heard alleging infirmity in the papers in other respects. As to the alleged father, he is possessed of no standing as against the defendant to demand the custody of the child. It is not claimed but that the defendant is in all respects competent to care for the child, or that he has failed to carry out in any respect the agreement executed by him at the adoption, or that the child is in all respects properly cared for. It follows, therefore, that the writ should be dismissed, and the custody of the infant awarded to the defendant.

RODERICK v. WHITSON.

VANCE v. HADFIELD.

(Supreme Court, General Term, Second Department. February 11, 1889.)

1. MUNICIPAL CORPORATIONS-ORDINANCES-VALIDITY-NOISE IN STREETS.

A village ordinance declaring it unlawful to go about the streets beating a drum or tambourine, or making any noise with any instrument, for any purpose, without written permission of the village president, under penalty of five dollars, is authorized by the general village act, (Laws N. Y. 1870, c. 291, tit. 3, § 3, subds. 2, 4, 14,) giv. ing power to make ordinances for the preservation of the public peace, and to regulate and prevent on the streets any act endangering person or property, and for the apprehension of persons unnecessarily congregating on the sidewalks or corners. 2. SAME DELEGATION OF LEGISLATIVE POWER.

The legislature had power to authorize such an ordinance, and the ordinance has the effect of an enactment of the legislature.

3. SAME-POWER OF CONSTABLE-ARREST WITHOUT WARRANT.

Under Laws 1885, c. 192, making it the duty of police constables to keep order in public places, to arrest persons concerned in noisy assemblages or violating the ordinance, a police constable is justified in arresting persons engaged in the violation of such ordinance, and, the offense being committed in his presence, he may arrest without warrant.

4. SAME-PROCEEDINGS AFTER ARREST.

The statute contemplates a criminal prosecution against a person violating the ordinance; Laws 1875, c. 385, providing that the magistrate before whom a person arrested by a police constable without process, under the general village act, is brought, must proceed forthwith to hear and determine the charge, and, on conviction, such person must be fined in accordance with the ordinance, and be imprisoned until the fine is paid.

5. JUSTICES OF THE PEACE-JUDICIAL ACTS-CRIMINAL PROCEEDINGS.

The justice before whom a person charged with violating such ordinance is brought, having acquired jurisdiction, his subsequent acts are judicial, and he is not answerable in damages therefor.

Appeal from circuit court, Dutchess county.

Actions for false imprisonment by Eddie C. Roderick against John B. Whitson, and by John Vance against Levi Hadfield. Plaintiffs appeal. Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. H. H. Hustis, for appellants. Samuel K. Phillips, for respondents.

DYKMAN, J. The village of Matteawan, in Dutchess county, is a municipal corporation, organized under the general law of the state of New York for the incorporation of villages, passed in 1870. In October, 1886, the board of trustees of the village passed an ordinance of the village which rendered it unlawful for any person to go about or remain in any of the streets or sidewalks of the village beating any drum or tambourine, or making any noise with any instrument, for any purpose whatever, without the written permission of the president of the village, under a penalty of five dollars for each offense. On the 20th day of December, 1887, the plaintiffs in these actions, with a number of other persons, were marching along Main street, in the village of Matteawan, beating a drum, and a tambourine, which is a small drum, and playing upon other musical instruments, and they were arrested by a police constable while so engaged in the violation of the ordinance, without a warrant, and taken to the office of the defendant Whitson, who was a justice of the peace of the town where the village is located. The defendant was not found, and the plaintiffs were confined in the village jail until the next morning, when they were taken before the defendant, and tried and convicted for a violation of the village ordinance, and sentenced to pay a fine of five dollars, and stand committed to the common jail of the county until the fine was paid, not to exceed five days. The plaintiffs were committed to the jail, and discharged the same day by the county judge of Dutchess county upon a writ of habeas corpus. Thereupon the plaintiff Roderick brought an action for false imprisonment against the justice of the peace, and the plaintiff Vance brought the same kind of action against the police constable. The complaints in both actions were dismissed, and there was a stipulation that the decision in one case should control the others, and so the plaintiff Roderick appealed from the judgment in his case.

As the case is presented to us, the justification of the defendants for the arrest and imprisonment of the plaintiffs must be found in the charter and by-laws of the village of Matteawan, and we must ascertain whether they are sufficient for their protection. By the provisions of chapter 291 of the Laws of 1870, which is the general law under which the village of Matteawan was incorporated, the trustees are invested with power to make ordinances and by-laws for the preservation of the public peace and order, and to regulate and prevent any act, amusement, or practice endangering property or person on the streets, sidewalks, or public grounds, and for the apprehension and punishment of persons unnecessarily congregating upon the sidewalks or corners. Title 3, § 3, subds. 2, 4, 14. These statutory provisions are sufliciently comprehensive to justify the passage of the ordinance under which the defendants proceeded, and the ordinance was broad enough to include and prohibit the conduct for which the plaintiffs were arrested. It was also competent for the legislature to delegate to the municipal corporations the power to make such a by-law, and it has the same force and effect as a law passed by the legislature. 1 Dill. Mun. Corp. § 245.

As regards the police constable, he had the power, and it was his duty, to keep order in public places in the village, to arrest persons concerned in noisy assemblages, or who were breaking the peace or violating the charter or the by-laws or ordinances of the village, and convey them forthwith before the proper authority, to be dealt with according to law, and keep and retain such persons in custody until committed or discharged. Chapter 192, Laws 1885. And where such offenses were committed in his presence, he possessed the power to make such arrests without warrant. The appellant challenges the y.4N.Y.s.no.2-8

proceedings before the magistrate, but the record before us discloses no irregularity; but, if he acquired jurisdiction in the first instance, as we have seen he did, his subsequent acts were judicial, and he cannot be made answerable in damages therefor.

We think, however, that the statute contemplates a criminal proceeding against persons who violate the ordinance in question. By chapter 385 of the Laws of 1875, when any person is arrested by a police constable without process, under the general act of 1870 for the incorporation of villages, and such person is brought before the justice of the peace, such magistrate must proceed forthwith to hear, try, and determine the complaint or charge on which such person was so arrested, and such person must, upon conviction by the justice, be fined by such magistrate in accordance with any ordinance or bylaw of the village for the punishment of such offense, and imprisoned in the county jail until such fine is paid, not exceeding 10 days. Our conclusion, therefore, is that the proceedings of the constable and the magistrate were fully justified, and that the complaints were properly dismissed. The judgment in both cases should be affirmed, with costs. All concur.

OCEAN PIER & NAV. Co. et al. v. WOOLSEY.

(Supreme Court, General Term, Second Department. February 11, 1889.) COVENANTS-ACTION FOR BREACH-OBSTRUCTION OF WAY.

The plaintiff company, owning a pier on which passengers were landed, purchased certain land from defendant in front of the pier, and covenanted with defendant that a road 30 feet wide should be kept open through the land conveyed, and also through land retained by defendant. The land entrance to the pier was by means of such road. Held, that certain booths and posts and fences erected by defendant, extending out into the road four or five feet, constituted a violation of defendant's covenant, and that a balcony overhanging the road, maintained by plaintiff, was not a violation of the latter's covenant, so as to prevent him from maintaining an action for the obstruction maintained by defendant.

Appeal from Kings county court.

Action by the Ocean Pier & Navigation Company and Elizabeth Skinner against Charles L. Woolsey, to compel defendant to remove certain obstructions from a roadway. By the terms of a conveyance of property from defendant to the said company it was agreed that, for all the purposes of a road, excepting horses and vehicles, a certain way or road should be kept open through the property conveyed, and through certain property retained by the defendant. Directly in front of such road the said company had a pier, running out into the ocean, on which passengers were landed, and the land exit and entrance from and to such pier opened directly into the said road. Both plaintiff and defendant had places of business fronting on such road, and the defendant maintained certain buildings, posts, and fences, extending out into the road from four to five feet, one post being in the center of the road; and a clothes-line, with washed clothes thereon, was extended from defendant's land to such post. A balcony overhanging the roadway was maintained by plaintiff. Defendant claimed that the enforcement of the covenant would work great hardship to him, and be of little benefit to plaintiff. Judgment was given for the latter, and defendant appeals.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
Charles J. Kurth, for appellant. W. J. Gaynor, for appellee.

PRATT, J. The findings of fact in this case are fully sustained by the evidence, and the conclusions of law are such as the findings of fact warrant. That the defendant has broken his covenants is abundantly proved, is plain; while the violations of covenant claimed to have been done by the plaintiff

are too trivial to require notice. The case is so plain, in the facts and principles involved, that no discussion seems to be required. Judgment affirmed, with costs. All concur.

CLAGGETT et al. v. METROPOLITAN NAT. BANK.

(Supreme Court, Special Term, New York County. December 8, 1888.) BANKS AND BANKING-STATE BANKS-CONVERSION INTO NATIONAL BANKS-LIABILITIES. Laws N. Y. 1865, c. 97, § 2, provides that any state bank becoming a national bank shall be deemed to have surrendered its charter on compliance "with the requirements of this act," but that it shall continue a body corporate for three years afterwards, for the purpose of closing its concerns, "but not for the purpose of continuing, under the laws of this state, the business for which it was established." Section 6 provides that, when authorized to commence business as a national bank, all assets of the old bank shall vest, without any conveyance, in the national bank, which, on returning the bills of the state bank to the banking department of the state, may receive the stock pledged to secure the redemption of the same, and that it shall be subjected to the same rules as the state banks with regard to the final redemption of the circulating notes of "such state banks so converted into national associations." Section 8 provides that the act shall not be construed so as to release the national bank from any obligation incurred before becoming such association. Held, that the conversion of a state bank into a national bank did not constitute such a "closing of the business" of the state bank that it could limit its liability to redeem its circulating notes by proceedings under Laws 1859, c. 236, authorizing state banks intending to close business to publish notice that any persons having any of the circulating notes of the bank should present them for redemption within six years, and, failing to do so, the bank would no longer be liable on such notes. Action by Sumner E. Claggett and Charles T. Chickering, as administrators of the estate of James H. Paine, against the Metropolitan National Bank, to recover the amount of certain bank-bills issued by the Metropolitan Bank while incorporated under the laws of the state, and before it became a national bank. On March 14, 1867, such bank deposited with the bank superintendent of the state a sum of money equal to its outstanding circulation, and the superintendent published notice that the circulating notes of such bank would be redeemed at par at any time within six years from the date of notice, and that all notes that were not presented for redemption within that time should cease to be a charge upon the fund in the hands of the superintendent for that purpose. The bank-bills in suit were not presented for redemption within seven years from the date of such notice.

Theo. H. Swift, (Elihu Root, of counsel,) for plaintiffs. Peabody, Baker & Peabody, (Fisher A. Baker, of counsel,) for defendant.

PATTERSON, J. In this action is involved the applicability to the facts disclosed in the agreed statement of the provisions of chapter 236 of the Laws of 1859, as amended by chapter 348 of the Laws of 1866, and the provisions of chapter 97 of the Laws of 1865; the latter being entitled: "An act enabling the banks of this state to become associations for the purpose of banking under the laws of the United States."

The defendant claims exemption from liability for the bank-nctes found among the effects of the plaintiffs' intestate on the ground that a liability therefor ceased long before this action was brought because of the deposit of money with the state superintendent of banking, the publication of notice requiring redemption of the notes to be made within six years, and the failure to present such notes for redemption pursuant to the notice. The act of 1859 was passed to facilitate the winding up of the affairs and business of state banks intending to close business, or whose charters had expired, or which had become insolvent, and it was not intended to affect banks whose business was to go on continuously. If the Metropolitan Bank did close business by becoming a national banking association, the contention here made would be unanswerable; but merely by changing from the state to the federal system of banking it did not close its business.